Blow Bar Co Pty Limited v McGann (No 2) [2018] FCA 459

Blow Bar Co Pty Limited v McGann (No 2) [2018] FCA 459

The particular circumstances did not warrant an indemnity costs order. The respondents' lack of complete success and the basis on which the interlocutory application was disposed differed from the arguments in correspondence. Costs were awarded on the ordinary basis, including 80% of costs for specified hearings, excluding those relating to security for costs.

Parties
First Applicant: Blow Bar Co Pty Limited; Second Applicant: Leigh Dole Pty Limited as Trustee for the Dole Family Trust; First Respondent: Timothy McGann; Second Respondent: Timothy McGann as Trustee for the McGann Family Trust; Third Respondent: TNCD Pty Limited
Jurisdiction
Australia
Judgment Date
06 April 2018
Procedural Posture
Interlocutory Application / Costs Determination Following Strikeout Application
Outcome
Applicants ordered to pay respondents' costs of the interlocutory application as amended and filed on 14 February 2018, excluding costs concerning security for costs, on the ordinary basis. 80% of respondents' costs for specified case management hearings included. Costs of first hearing (6 December 2017) reserved.
Legal Topics
Copyright, Industrial Designs, Costs, Interlocutory Applications
Intellectual Property Copyright Industrial Designs Costs Interlocutory Applications

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Parties

Blow Bar Co Pty Limited

First Applicant

Leigh Dole Pty Limited as Trustee for the Dole Family Trust

Second Applicant

Timothy McGann

First Respondent

Timothy McGann as Trustee for the McGann Family Trust

Second Respondent

TNCD Pty Limited

Third Respondent

Procedural Posture

Interlocutory Application / Costs Determination Following Strikeout Application

Legal Issues

  1. 1 Whether costs of strikeout application should be awarded on an indemnity basis or ordinary basis
  2. 2 Whether special or unusual features warrant departure from ordinary rule on costs

Ratio Decidendi

The particular circumstances did not warrant an indemnity costs order. The respondents' lack of complete success and the basis on which the interlocutory application was disposed differed from the arguments in correspondence. Costs were awarded on the ordinary basis, including 80% of costs for specified hearings, excluding those relating to security for costs.

Court Disposition

Applicants ordered to pay respondents' costs of the interlocutory application as amended and filed on 14 February 2018, excluding costs concerning security for costs, on the ordinary basis. 80% of respondents' costs for specified case management hearings included. Costs of first hearing (6 December 2017) reserved.

Orders

  • The applicants pay the respondents' costs of and incidental to the interlocutory application as amended and filed on 14 February 2018, excluding costs concerning security for costs, on the ordinary basis.
  • Those costs include 80% of the respondents' costs of the case management hearing on 7 February 2018 and 80% of the respondents' costs of the case management hearing on 14 February 2018.