Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd (No 2) [2011] FCA 283

Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd (No 2) [2011] FCA 283

The offers of compromise made by the respondents were effectively served and brought to the applicant's attention, and the applicant's failure to accept those offers, in circumstances where the respondents ultimately obtained a more favorable judgment, entitled the respondents to indemnity costs after 23 October 2009. There were no exceptional circumstances demonstrated by the applicant sufficient to displace the presumption in favour of indemnity costs under O 23 r 11(6) (or by analogy).

Jurisdiction
Australia
Judgment Date
25 March 2011
Procedural Posture
Costs Application Following Judgment in Trade Mark Proceeding / Post Judgment, Costs Determination
Outcome
Indemnity costs awarded in part; party and party costs awarded up to a specified date
Legal Topics
['indemnity Costs' 'offers of Compromise' 'trade Mark Litigation' 'party and Party Costs']
['intellectual Property Law' 'civil Procedure'] ['indemnity Costs' 'offers of Compromise' 'trade Mark Litigation' 'party and Party Costs']

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Procedural Posture

Costs Application Following Judgment in Trade Mark Proceeding / Post Judgment, Costs Determination

Legal Issues

  1. 1 ['Whether indemnity costs or party and party costs are appropriate' 'Whether offers of compromise were valid and served properly under the Federal Court Rules' 'Whether circumstances were exceptional to rebut the presumption of indemnity costs under O 23 r 11(6)']

Ratio Decidendi

The offers of compromise made by the respondents were effectively served and brought to the applicant's attention, and the applicant's failure to accept those offers, in circumstances where the respondents ultimately obtained a more favorable judgment, entitled the respondents to indemnity costs after 23 October 2009. There were no exceptional circumstances demonstrated by the applicant sufficient to displace the presumption in favour of indemnity costs under O 23 r 11(6) (or by analogy).

Court Disposition

Indemnity costs awarded in part; party and party costs awarded up to a specified date

Orders

  • ["The applicant/cross-respondent pay the respondents'/cross-claimants' costs of the proceeding (including all reserved costs but not including costs the subject of order 5 made 13 May 2010) taxed up to 23 October 2009 on a party and party basis and taxed thereafter on an indemnity basis." "The...