Breakout Barrier Release Systems Pty ltd v Breakout Barrier Release Systems Australasia Ltd (Costs) [2013] NSWSC 1955

Supreme Court New South Wales

Medium Neutral Citation: Breakout Barrier Release Systems Pty ltd v Breakout Barrier Release Systems Australasia Ltd (Costs) [2013] NSWSC 1955 Hearing dates: 12 December 2013 Decision date: 12 December 2013 Jurisdiction: Equity Division Before: Rein J Decision: Declarations and orders made to reflect the conclusions reached in Breakout Barrier Release Systems Pty ltd v Breakout Barrier Release Systems Australasia [2013] NSWSC 1815 subject to determination of the amount payable for the Breakout Locks. Defendants to pay the plaintiff's costs on the ordinary basis up to 17 March 2011 and on an indemnity basis from 18 March 2011 Catchwords: DAMAGES - the amount to be paid for damages in relation to the Breakout Locks sold before and after termination of the Patent Licensing Agreement ("the PLA") COSTS - whether a Calderbank offer was made by the plaintiff to the defendants - whether the plaintiff has done better in these proceedings than it would have if its Calderbank offer was accepted by the defendants COSTS - whether it was unreasonable for the plaintiffs to refuse the defendants' Calderbank offer COSTS - whether the plaintiff is entitled to an order for the costs thrown away by reason of the defendants' aborted motion COSTS - whether the plaintiff is entitled to a costs order in respect of the defendants' application, by notice of motion, for the defendant to pay the $40K of costs, awarded against them by reason of their abandoned assertion that the matter had been settled, in instalments COSTS - whether the Court should exercise its general discretion not to allow all of the costs of the hearing to be awarded in favour of the plaintiff COSTS - whether the security paid by the plaintiff into court should be released as it has succeeded against the defendants in the principal proceedings Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Breakout Barrier Release Systems Pty ltd v Breakout Barrier Release Systems Australasia [2013] NSWSC 1815 Cretazzo v Lombardi (1975) 13 SASR 4 Jones v Bradley (No 2) [2003] NSWCA 258 SMEC Testing Services Pty Limited v Campbelltown City Council [2000] NSWCA 323 Category: Costs Parties: Breakout Barrier Release Systems Pty Ltd (plaintiff) Breakout Barrier Release Systems Australasia Pty Ltd (first defendant) Michael Watmough (second defendant) Representation: Counsel: Mr P.R. Clay and Mr M. Bennett (plaintiff) Mr G. McVay (defendants) Solicitors: Breene & Breene Solicitors (plaintiff) Logan Fox Lawyers (defendants) File Number(s): 2009/289527