Surgibit IP Holdings Pty Limited v Ellis (No 3) [2017] NSWSC 1479

Supreme Court New South Wales

Medium Neutral Citation: Surgibit IP Holdings Pty Limited v Ellis (No 3) [2017] NSWSC 1479 Hearing dates: On the papers Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Common Law Before: Adamson J Decision: (1) Order the first defendant to pay the plaintiff's costs of the proceedings. Catchwords: COSTS – no reason to depart from general rule that costs follow the event – no question of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Category: Costs Parties: Surgibit IP Holdings Pty Limited (ACN 110 194 628) (First Plaintiff) Orthopedic Innovation Pty Ltd (ACN 101 791 084) (Second Plaintiff) Liam Patrick Ellis (First Defendant) Cingular Pty Ltd (Second Defendant) Representation: Counsel: J Hogan-Doran (Plaintiffs) P Cutler and J Tat (First Defendant)

Solicitors: Shelston IP Lawyers (Plaintiffs) DTL Legal (First Defendant) File Number(s): 2015/84790

Judgment 1. I delivered reasons for judgment in this matter on 11 October 2017: Surgibit IP Holdings Pty Limited v Ellis (No 2) [2017] NSWSC 1379 and ordered judgment in the sum of $1,131,891 (the calculation of which was agreed) on 18 October 2017. 2. The plaintiff seeks its costs of the proceedings. The first defendant does not consent to an order that he pay the plaintiff's costs of the proceedings. Both parties agree that the appropriate costs order should be determine on the papers. 3. Although the first defendant does not consent to an order that he pay the plaintiff's costs of the proceedings, he has raised no reason why costs ought not follow the event. 4. The first defendant opposed the enforcement of a foreign judgment on the basis that it contained a penal element and ought not be enforced by this Court. I rejected that argument in respect of each of the amounts claimed by the plaintiff (triple damages and attorneys fees). As the plaintiff has been wholly successful, I am not persuaded that there is any reason to depart from the usual consequence that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. 5. For these reasons I make the following order: 1. Order the first defendant to pay the plaintiff's costs of the proceedings.