Herold v Seally (No 3) [2017] FCA 956

Herold v Seally (No 3) [2017] FCA 956

The question whether one forum was clearly inappropriate was central to both interlocutory applications and was dealt with under the anti-suit injunction rubric as a matter of efficient organisation, not because it was a clearly dominant or separable issue. The separation required by Bostick was absent, both parties failed in their attempts to confine the dispute to one jurisdiction, and the purported Calderbank offer was too late and included matters beyond the issues being adjudicated, making it impossible to determine that the respondents achieved a better outcome. The existing costs order should therefore stand, and costs of the unsuccessful costs application should follow the event.

Jurisdiction
Australia
Judgment Date
18 August 2017
Procedural Posture
Costs Application / Application for a Different Costs Order Following Dismissal of Competing Interlocutory Applications
Outcome
Respondents' application for a different costs order dismissed; prior order that each party bear their own costs confirmed; respondents ordered to pay applicants' costs of the costs application.
Legal Topics
['different Costs Order' 'apportionment of Costs' 'separable Issues' 'calderbank Offer' 'anti Suit Injunction' 'clearly Inappropriate Forum']
['costs' 'civil Procedure' 'intellectual Property' 'trade Marks'] ['different Costs Order' 'apportionment of Costs' 'separable Issues' 'calderbank Offer' 'anti Suit Injunction' 'clearly Inappropriate Forum']

Case Brief

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Procedural Posture

Costs Application / Application for a Different Costs Order Following Dismissal of Competing Interlocutory Applications

Legal Issues

  1. 1 ['Whether the costs order made on 19 May 2017, that each party bear their own costs after both interlocutory applications were dismissed, should be departed from.' "Whether the applicants' anti-suit injunction application and the respondents' strike out application involved clearly dominant or separable issues justifying apportionment of costs." "Whether the respondents' email of 25 April 2017 was a valid Calderbank offer justifying an indemnity or different costs order."]

Ratio Decidendi

The question whether one forum was clearly inappropriate was central to both interlocutory applications and was dealt with under the anti-suit injunction rubric as a matter of efficient organisation, not because it was a clearly dominant or separable issue. The separation required by Bostick was absent, both parties failed in their attempts to confine the dispute to one jurisdiction, and the purported Calderbank offer was too late and included matters beyond the issues being adjudicated, making it impossible to determine that the respondents achieved a better outcome. The existing costs order should therefore stand, and costs of the unsuccessful costs application should follow the event.

Court Disposition

Respondents' application for a different costs order dismissed; prior order that each party bear their own costs confirmed; respondents ordered to pay applicants' costs of the costs application.

Orders

  • ["The respondents' application for a different costs order to that made on 19 May 2017 be dismissed." 'Order 3 made on 19 May 2017 that each party bear their own costs be confirmed.' "The respondents pay the applicants' costs of and incidental to this application for costs as assessed or agreed."]