Natural Waters of Viti Limited v Dayals (Fiji) Artesian Waters Limited (No 2) [2007] FCA 555

Natural Waters of Viti Limited v Dayals (Fiji) Artesian Waters Limited (No 2) [2007] FCA 555

The respondents' failure to admit reputation and goodwill was not unreasonable because the applicants' evidence on reputation was not overwhelming and awareness of the 2003 get-up by Mr Jay Dayal and designers in Fiji did not require admission of reputation in Australia. The applicants had conducted a case based on the totality of the product get-up, not solely the hibiscus, and their rejection of the respondents' offers was not shown to be unreasonable. There was therefore no basis to reduce the costs payable by the applicants or to award indemnity costs to the respondents, and the usual order for party and party costs applied.

Jurisdiction
Australia
Judgment Date
18 April 2007
Procedural Posture
Costs in Passing Off, Trade Practices Act and Fair Trading Act Proceeding / Determination of Costs After Dismissal of the Application
Outcome
The applicants were ordered to pay the respondents' costs on a party and party basis; the applicants' request to pay only 75% and the respondents' requests for indemnity costs were rejected.
Legal Topics
['party and Party Costs' 'indemnity Costs' 'calderbank Offers' 'reputation and Goodwill in Product Get Up' 'misleading or Deceptive Conduct']
['civil Procedure' 'costs' 'passing Off' 'trade Practices' 'fair Trading'] ['party and Party Costs' 'indemnity Costs' 'calderbank Offers' 'reputation and Goodwill in Product Get Up' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Costs in Passing Off, Trade Practices Act and Fair Trading Act Proceeding / Determination of Costs After Dismissal of the Application

Legal Issues

  1. 1 ["Whether the applicants should pay only 75% of the respondents' costs because the respondents allegedly unnecessarily prolonged the final hearing by putting reputation and goodwill in issue." "Whether the respondents' costs should be paid in whole or in part on an indemnity basis." "Whether the respondents' settlement offers justified indemnity costs."]

Ratio Decidendi

The respondents' failure to admit reputation and goodwill was not unreasonable because the applicants' evidence on reputation was not overwhelming and awareness of the 2003 get-up by Mr Jay Dayal and designers in Fiji did not require admission of reputation in Australia. The applicants had conducted a case based on the totality of the product get-up, not solely the hibiscus, and their rejection of the respondents' offers was not shown to be unreasonable. There was therefore no basis to reduce the costs payable by the applicants or to award indemnity costs to the respondents, and the usual order for party and party costs applied.

Court Disposition

The applicants were ordered to pay the respondents' costs on a party and party basis; the applicants' request to pay only 75% and the respondents' requests for indemnity costs were rejected.

Orders

  • ['The applicants are to pay the respondents costs on a party and party basis.']