Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Austral Masonry (NSW) Pty Ltd v Cementech Pty Limited [2014] FCAFC 72 Citation: Austral Masonry (NSW) Pty Ltd v Cementech Pty Limited [2014] FCAFC 72
Appeal from: Cementech Pty Ltd v Austral Masonry (NSW) Pty Ltd [2013] NSWSC 1888
Parties: AUSTRAL MASONRY (NSW) PTY LTD v CEMENTECH PTY LIMITED and ADBRI MASONRY PTY LTD
File number: NSD 103 of 2014
Judges: JAGOT, NICHOLAS AND YATES JJ
Date of judgment: 17 June 2014
Catchwords: CONTRACTS – construction and interpretation – survival of clause after termination – common intention of parties – commercial practicality – contractual scheme for enforcement of intellectual property rights against third party infringers – whether appellant obliged to contribute to respondent's costs of litigation against infringer – whether obligation only arose upon appellant giving notice of infringement by third party – whether scheme amounted to code between parties – whether parties intended obligation to continue beyond termination of contract in circumstances where litigation commenced during term of contract PRACTICE AND PROCEDURE – declarations – exercise of discretion – whether declaration related to hypothetical matters or amounted to an advisory opinion PRACTICE AND PROCEDURE – appeals – leave to raise issue not argued before primary judge – whether evidence could have been led on issue at first instance
Legislation: Patents Act 1990 (Cth), ss 13, 120(1)
Cases cited: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 Cementech Pty Limited v Austral Masonry (NSW) Pty Ltd [2013] NSWSC 1888 Coulton v Holcombe 1986) 162 CLR 1 House v the King (1936) 55 CLR 499 Lansen v Minister for Environment and Heritage [2008] FCAFC 189 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 McDonald v Dennys Lascelles (1933) 48 CLR 457 O'Brien v Komesaroff (1982) 150 CLR 310 Peacock v Human Rights & Equal Opportunity Commission [2003] FCAFC 50 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Westralian Farmers Limited v Commonwealth Agricultural Service Engineers Limited (In liq) (1936) 54 CLR 361
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