Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1665

Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1665

The application for indemnity costs was refused because the case was not outside the ordinary run of cases where a claim failed to be substantiated: Ninox's copying argument, though weak, was not beyond the pale or obviously doomed; its assertions of rights did not independently justify indemnity costs; delay was neutral; and the Calderbank letter demanded capitulation rather than making a significant reasonable compromise, so rejection of it was not unreasonable.

Jurisdiction
Australia
Judgment Date
09 November 2005
Procedural Posture
Application for Indemnity Costs / Costs Application Heard and Determined After Judgment in the Proceedings
Outcome
Application for indemnity costs dismissed.
Legal Topics
['indemnity Costs' 'party/party Costs' 'calderbank Offer' 'allegations of Copying' 'exercise of Costs Discretion']
['costs' 'civil Procedure'] ['indemnity Costs' 'party/party Costs' 'calderbank Offer' 'allegations of Copying' 'exercise of Costs Discretion']

Case Brief

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Procedural Posture

Application for Indemnity Costs / Costs Application Heard and Determined After Judgment in the Proceedings

Legal Issues

  1. 1 ['Whether the applicants should receive indemnity costs because the first and third respondents made grave and unsubstantiated allegations of copying.' 'Whether threats and assertions of rights over a substantial period and proceedings in New York provided an independent ground for indemnity costs.' "Whether Ninox's claims were wholly unmeritorious and incapable of succeeding." "Whether rejection of the applicants' Calderbank letter warranted indemnity costs."]

Ratio Decidendi

The application for indemnity costs was refused because the case was not outside the ordinary run of cases where a claim failed to be substantiated: Ninox's copying argument, though weak, was not beyond the pale or obviously doomed; its assertions of rights did not independently justify indemnity costs; delay was neutral; and the Calderbank letter demanded capitulation rather than making a significant reasonable compromise, so rejection of it was not unreasonable.

Court Disposition

Application for indemnity costs dismissed.

Orders

  • ['The application for indemnity costs is dismissed.' 'The applicants are to pay the costs of the first and third respondents of the application on a party/party basis.' 'The parties have liberty to apply in relation to any further directions that might be appropriate in this matter.']