Yum Restaurants Australia Pty Ltd v The Acorn Group Pty Ltd [2005] FCA 146

Procedural Posture

Costs Application in Trade Mark Infringement Proceedings / Determination of Applicants' Costs Up to and Including 11 August 2004 After Consent Permanent Injunctions

Legal Issues

1. 1 ['Whether the applicants should recover their costs of the proceeding up to and including 11 August 2004.' 'Whether the applicants acted unreasonably in commencing the proceedings so as to justify departure from the ordinary costs rule.' 'Whether the consent orders gave rise to a waiver or estoppel preventing the applicants from claiming costs.' 'Whether any costs order should be made against the first respondent, which was subject to a winding up order.']

Ratio Decidendi

The applicants were entitled to costs because no special reason was shown to depart from the ordinary rule that costs follow the event. The applicants acted reasonably in instituting the proceedings given the respondents' prior refusals to cease trading under the Pizza Hut marks, and the consent orders left costs open and created no waiver or estoppel. No costs order was made against Acorn because it was subject to a winding up order.

Court Disposition

Applicants awarded costs against the second and third respondents; no costs order made against the first respondent.

Orders

• ['The costs of the Application up to and including 11 August 2004 be paid by the second and third respondents.']