Tu v Pakway Australia Pty Ltd (ACN 093872738) (T/AS Pakway Plastics) [2006] FCA 34

Tu v Pakway Australia Pty Ltd (ACN 093872738) (T/AS Pakway Plastics) [2006] FCA 34

The applicants were the successful parties overall and were entitled to their costs against the first and second respondents, including reserved costs, except for the interlocutory injunction application. The respondents' partial evidentiary success on their notice of motion did not justify a separate costs order, and the applicants' use of the contested affidavit and expert evidence and two counsel was not shown to be unreasonable. However, because the interlocutory injunction application was not pressed after an early trial was arranged and its prospects were uncertain, each party should bear his or its own costs of that application. Although the monetary recovery was less than...

Jurisdiction
Australia
Judgment Date
07 February 2006
Procedural Posture
Design Infringement Proceeding; Costs Determination / After Liability Judgment and Settlement of Account of Profits; Determination of Costs Questions
Outcome
Costs ordered for the applicants against the first and second respondents, excluding the interlocutory injunction application; each party to bear his or its own costs of that application; no one-third reduction of costs; no costs order against the third respondent.
Legal Topics
['registered Design Infringement' 'costs Follow the Event' 'reserved Costs' 'interlocutory Injunction Costs' 'reduction of Costs Under O 62 R 36 A(1)' 'costs of Senior and Junior Counsel']
['intellectual Property' 'civil Procedure' 'costs'] ['registered Design Infringement' 'costs Follow the Event' 'reserved Costs' 'interlocutory Injunction Costs' 'reduction of Costs Under O 62 R 36 A(1)' 'costs of Senior and Junior Counsel']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Design Infringement Proceeding; Costs Determination / After Liability Judgment and Settlement of Account of Profits; Determination of Costs Questions

Legal Issues

  1. 1 ["Whether reserved costs of the respondents' notice of motion concerning affidavit material should follow the event or be awarded to the respondents" 'Whether the applicants or respondents should receive costs of the application for an interlocutory injunction' 'Whether the applicants should recover costs relating to affidavits of Robin Walton and evidence of Peter Bayly' 'Whether the applicants should recover costs of retaining senior and junior counsel' 'Whether recoverable costs should be reduced by one-third under O 62 r 36A(1) of the Federal Court Rules']

Ratio Decidendi

The applicants were the successful parties overall and were entitled to their costs against the first and second respondents, including reserved costs, except for the interlocutory injunction application. The respondents' partial evidentiary success on their notice of motion did not justify a separate costs order, and the applicants' use of the contested affidavit and expert evidence and two counsel was not shown to be unreasonable. However, because the interlocutory injunction application was not pressed after an early trial was arranged and its prospects were uncertain, each party should bear his or its own costs of that application. Although the monetary recovery was less than...

Court Disposition

Costs ordered for the applicants against the first and second respondents, excluding the interlocutory injunction application; each party to bear his or its own costs of that application; no one-third reduction of costs; no costs order against the third respondent.

Orders

  • ["The first and second respondents pay the applicants' costs of and incidental to the proceedings, including all reserved costs except the costs reserved on the application for an interlocutory injunction, on a party and party basis to be taxed in default of agreement." 'Each party bear his or its own costs of the...