Anchorage Capital Partners Pty Limited v ACPA Pty Limited (No 4) [2016] FCA 218

Anchorage Capital Partners Pty Limited v ACPA Pty Limited (No 4) [2016] FCA 218

The applicant was liable for indemnity costs on the estoppel case because it advanced that case through knowingly false evidence. It was not liable for indemnity costs for the whole proceedings merely because it lost comprehensively or acted disproportionately. The respondents' 18 June 2014 offer of compromise involved genuine compromise because they offered to discontinue a valuable cross-claim, and the offer reasonably reflected the serious weaknesses in the applicant's position; the applicant therefore unreasonably failed to accept it, enlivening r 25.14(2) and requiring party-party costs before 11am on 20 June 2014 and indemnity costs thereafter.

Jurisdiction
Australia
Judgment Date
09 March 2016
Procedural Posture
Costs Application in Trade Marks Proceedings and Cross Claim / Heard on the Papers After Dismissal of the Application and Orders for Removal of Certain Trade Marks From the Register
Outcome
Costs ordered for the respondents, including indemnity costs for the estoppel case and indemnity costs after 11am on 20 June 2014 under r 25.14(2).
Legal Topics
['indemnity Costs' 'offers to Settle' 'calderbank Offer' 'offer of Compromise' 'trade Mark Infringement' 'expungement of Trade Marks' 'estoppel']
['costs' 'intellectual Property' 'trade Marks'] ['indemnity Costs' 'offers to Settle' 'calderbank Offer' 'offer of Compromise' 'trade Mark Infringement' 'expungement of Trade Marks' 'estoppel']

Case Brief

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Procedural Posture

Costs Application in Trade Marks Proceedings and Cross Claim / Heard on the Papers After Dismissal of the Application and Orders for Removal of Certain Trade Marks From the Register

Legal Issues

  1. 1 ["Whether the applicant should pay the respondents' costs of the whole of the proceedings on an indemnity basis because its conduct was alleged to be unreasonable, wasteful and dishonest." 'Whether the applicant should pay indemnity costs from 20 June 2014 because of a Calderbank letter dated 18 June 2014 or an offer of compromise made under r 25.14(2) of the Federal Court Rules 2011 (Cth) on 18 June 2014.' 'Whether the applicant should pay indemnity costs of responding to the estoppel case because that case was advanced in a knowingly false fashion.' "Whether the applicant unreasonably failed to accept the respondents' offer of compromise within the meaning of r 25.14(2)."]

Ratio Decidendi

The applicant was liable for indemnity costs on the estoppel case because it advanced that case through knowingly false evidence. It was not liable for indemnity costs for the whole proceedings merely because it lost comprehensively or acted disproportionately. The respondents' 18 June 2014 offer of compromise involved genuine compromise because they offered to discontinue a valuable cross-claim, and the offer reasonably reflected the serious weaknesses in the applicant's position; the applicant therefore unreasonably failed to accept it, enlivening r 25.14(2) and requiring party-party costs before 11am on 20 June 2014 and indemnity costs thereafter.

Court Disposition

Costs ordered for the respondents, including indemnity costs for the estoppel case and indemnity costs after 11am on 20 June 2014 under r 25.14(2).

Orders

  • ["The applicant is to pay the respondents' costs on the cross-claim of defending the estoppel case on an indemnity basis." "The applicant is to pay the respondents' costs on both the application and the cross-claim on a party-party basis before 11am on 20 June 2014 other than the costs referred to in order 1." "The...