Kismet International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2) [2013] FCA 705

Kismet International Pty Ltd v Guano Fertilizer Sales Pty Ltd (No 2) [2013] FCA 705

The applicants obtained a result less favourable than the Respondents' Offer of Compromise, and the global nature of that offer across the claim and cross-claim did not prevent r 25.14 costs consequences. Although r 25.14 created only a rebuttable presumption and the applicants could not properly assess the offer when it became effective because important evidence had not yet been served, by 13 June 2012 they should have understood the difficulties in their case. It was therefore appropriate to allow party/party costs up to 13 June 2012 where successful, but to order indemnity costs against the applicants and cross-respondent thereafter, including for the Abandoned Claims. No reduction...

Jurisdiction
Australia
Judgment Date
19 July 2013
Procedural Posture
Costs Judgment in Federal Court Proceeding Involving Claims for Misleading or Deceptive Conduct, Passing Off, Damages, Injunctions, and a Warehousing Fees Cross Claim / After Substantive Judgment and Orders on All Matters Other Than Costs
Outcome
Costs ordered partly in favour of the applicants up to 13 June 2012 on the applicants' claim except the Abandoned Claims, and in favour of the respondents and cross-claimant thereafter on an indemnity basis; respondents also awarded costs of the Abandoned Claims.
Legal Topics
['offer of Compromise' 'indemnity Costs' 'party/party Costs' 'federal Court Rules 2011 Rr 1.61, 25.14, 40.08' 'reduction of Costs Where Damages Awarded Are Less Than $100, 000' 'costs of Abandoned Claims' 'cross Claim Costs']
['costs' 'civil Procedure' 'intellectual Property' 'consumer Law' 'passing Off'] ['offer of Compromise' 'indemnity Costs' 'party/party Costs' 'federal Court Rules 2011 Rr 1.61, 25.14, 40.08' 'reduction of Costs Where Damages Awarded Are Less Than $100,000' 'costs of Abandoned Claims' 'cross Claim Costs']

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Procedural Posture

Costs Judgment in Federal Court Proceeding Involving Claims for Misleading or Deceptive Conduct, Passing Off, Damages, Injunctions, and a Warehousing Fees Cross Claim / After Substantive Judgment and Orders on All Matters Other Than Costs

Legal Issues

  1. 1 ["Whether the applicants' costs should be reduced pursuant to r 40.08 because of the amount of damages awarded." 'Whether an offer of compromise relating to both the claim and cross-claim could attract costs consequences despite not being capable of independent acceptance in relation to the cross-claim.' 'Whether indemnity costs automatically follow if the conditions of r 25.14 are satisfied.' 'Whether the respondents should receive indemnity costs from the date their offer of compromise became effective or another date.' 'What costs orders should be made for the Abandoned Claims.']

Ratio Decidendi

The applicants obtained a result less favourable than the Respondents' Offer of Compromise, and the global nature of that offer across the claim and cross-claim did not prevent r 25.14 costs consequences. Although r 25.14 created only a rebuttable presumption and the applicants could not properly assess the offer when it became effective because important evidence had not yet been served, by 13 June 2012 they should have understood the difficulties in their case. It was therefore appropriate to allow party/party costs up to 13 June 2012 where successful, but to order indemnity costs against the applicants and cross-respondent thereafter, including for the Abandoned Claims. No reduction...

Court Disposition

Costs ordered partly in favour of the applicants up to 13 June 2012 on the applicants' claim except the Abandoned Claims, and in favour of the respondents and cross-claimant thereafter on an indemnity basis; respondents also awarded costs of the Abandoned Claims.

Orders

  • ["The Respondents pay the Applicants' costs of and incidental to the Applicants' claim (except for the Abandoned Claims (as defined)) on a party/party basis pursuant to the Federal Court scale for the period from the commencement of the proceeding until 13 June 2012, and thereafter the Applicants pay the...