Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3) [2019] FCA 2116

Mitolo Wines Aust Pty Ltd v Vito Mitolo & Son Pty Ltd (No 3) [2019] FCA 2116

The Court refused a stay of the Costs Order and Second Costs Order because the respondents had not established that a stay was appropriate: the applicants were entitled to the fruits of their judgment, the respondents accepted they collectively had sufficient assets to satisfy the costs orders, Vito could satisfy them, the asserted need to sell the Oakley Road property was insufficient, and the respondents' failure to offer any security was decisive. However, the Court suspended the Programming Orders because they concerned future costs in the account of profits stage, the appeal was pending, and the delay and May 2020 appeal listing did not justify requiring the parties to incur costs...

Jurisdiction
Australia
Judgment Date
16 December 2019
Procedural Posture
Interlocutory Application for a Stay of Orders Pending Appeal / Stay Application Pending Hearing and Determination of Appeal to the Full Court of the Federal Court of Australia
Outcome
The operation of paragraphs 16–21 inclusive of the orders made on 25 July 2019 was suspended until further order; the respondents' interlocutory application dated 8 November 2019 was otherwise dismissed.
Legal Topics
['stay Pending Appeal' 'trade Mark Infringement' 'account of Profits' 'costs Orders' 'discovery and Programming Orders' 'security for Stay' 'arguable Grounds of Appeal']
['practice and Procedure' 'intellectual Property' 'trade Marks' 'australian Consumer Law' 'passing Off'] ['stay Pending Appeal' 'trade Mark Infringement' 'account of Profits' 'costs Orders' 'discovery and Programming Orders' 'security for Stay' 'arguable Grounds of Appeal']

Case Brief

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Procedural Posture

Interlocutory Application for a Stay of Orders Pending Appeal / Stay Application Pending Hearing and Determination of Appeal to the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 ["Whether orders made on 25 July 2019 and 10 October 2019 should be stayed pending the respondents' appeal to the Full Court." 'Whether the respondents had arguable grounds of appeal.' 'Whether refusal of a stay would render the appeal nugatory or cause non-financial prejudice to the respondents.' 'Whether granting a stay would deprive the applicants of the fruits of their judgment.' "Whether the respondents' failure to offer security and delay in bringing the stay application warranted refusal of a stay." 'Whether different considerations applied to the programming orders for the account of profits stage.']

Ratio Decidendi

The Court refused a stay of the Costs Order and Second Costs Order because the respondents had not established that a stay was appropriate: the applicants were entitled to the fruits of their judgment, the respondents accepted they collectively had sufficient assets to satisfy the costs orders, Vito could satisfy them, the asserted need to sell the Oakley Road property was insufficient, and the respondents' failure to offer any security was decisive. However, the Court suspended the Programming Orders because they concerned future costs in the account of profits stage, the appeal was pending, and the delay and May 2020 appeal listing did not justify requiring the parties to incur costs...

Court Disposition

The operation of paragraphs 16–21 inclusive of the orders made on 25 July 2019 was suspended until further order; the respondents' interlocutory application dated 8 November 2019 was otherwise dismissed.

Orders

  • ['The operation of paragraphs 16–21 inclusive of the orders of the Court made on 25 July 2019 be suspended until further order.' "The respondents' interlocutory application dated 8 November 2019 be otherwise dismissed."]