Unilever Aust Ltd v George Karounos & Anor [2001] FCA 921

Unilever Aust Ltd v George Karounos & Anor [2001] FCA 921

RFC's cross-claim should not be struck out on the Trustee Act ground because, having regard to s 20 of the Trade Marks Act 1995 (Cth), RFC was the registered owner and a relevant party entitled to bring infringement proceedings during the relevant period. Although RFC's conduct gave force to Unilever's strike-out submission, the offer to provide security for Unilever's costs meant prejudice could be addressed without striking out the cross-claim. On costs of the discontinued proceedings, RFC was the proper respondent when Unilever commenced proceedings, but the chronology and conduct did not justify ordering Unilever to pay RFC's costs; the appropriate order was no order for costs.

Jurisdiction
Australia
Judgment Date
19 July 2001
Procedural Posture
Strike Out Application and Costs Application in Trade Mark Proceedings / Interlocutory Motion After Discontinuance of Main Proceedings Against the First Cross Claimant
Outcome
Unilever's application to strike out or dismiss RFC's cross-claim was not granted; security for costs was ordered by consent, with dismissal with costs if security was not provided within the agreed period. On the costs of the discontinued proceedings against RFC, there was no order for costs.
Legal Topics
['strike Out of Cross Claim' 'vesting of Trust Property on Appointment of New Trustee' "registered Owner's Right to Sue for Trade Mark Infringement" 'security for Costs' 'costs After Discontinuance']
['trade Marks' 'trusts' 'civil Procedure' 'costs'] ['strike Out of Cross Claim' 'vesting of Trust Property on Appointment of New Trustee' "registered Owner's Right to Sue for Trade Mark Infringement" 'security for Costs' 'costs After Discontinuance']

Case Brief

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Procedural Posture

Strike Out Application and Costs Application in Trade Mark Proceedings / Interlocutory Motion After Discontinuance of Main Proceedings Against the First Cross Claimant

Legal Issues

  1. 1 ['Whether s 76 of the Trustee Act 1936 (SA) vested any claim RFC had as trustee in the new trustee upon execution and registration of the memorandum of appointment of new trustee.' 'Whether s 20 of the Trade Marks Act 1995 (Cth) meant RFC, as registered owner, was a proper party to bring the trade mark infringement cross-claim.' "Whether RFC's conduct in the proceedings justified striking out or dismissing its cross-claim." "How costs should be borne in relation to Unilever's discontinued proceedings against RFC."]

Ratio Decidendi

RFC's cross-claim should not be struck out on the Trustee Act ground because, having regard to s 20 of the Trade Marks Act 1995 (Cth), RFC was the registered owner and a relevant party entitled to bring infringement proceedings during the relevant period. Although RFC's conduct gave force to Unilever's strike-out submission, the offer to provide security for Unilever's costs meant prejudice could be addressed without striking out the cross-claim. On costs of the discontinued proceedings, RFC was the proper respondent when Unilever commenced proceedings, but the chronology and conduct did not justify ordering Unilever to pay RFC's costs; the appropriate order was no order for costs.

Court Disposition

Unilever's application to strike out or dismiss RFC's cross-claim was not granted; security for costs was ordered by consent, with dismissal with costs if security was not provided within the agreed period. On the costs of the discontinued proceedings against RFC, there was no order for costs.

Orders

  • ['There be no order for costs of the application so far as the proceedings relate to Revelinu Pty Limited (in liquidation).' "RFC's cross-claim was not struck out or dismissed." "RFC was required to provide security for Unilever's costs from the commencement of the cross-claim up to and including its hearing, with...