Firstmac Limited v Zip Co Limited (No 2) [2023] FCA 1074

Firstmac Limited v Zip Co Limited (No 2) [2023] FCA 1074

The terms of the respondents’ offers, particularly the Calderbank offers, were not sufficiently commensurate with possible outcomes of the proceeding because they required obligations beyond relief obtainable in court, and refusing those offers was not unreasonable given the circumstances and stage of proceedings. Thus, indemnity costs were not warranted; costs to be assessed on the standard party-party basis.

Jurisdiction
Australia
Judgment Date
13 September 2023
Procedural Posture
Cost Application Related to Trade Mark Litigation / Post Trial, Costs Determination Following Final Judgment
Outcome
Respondents/cross-claimants’ application for indemnity costs dismissed; costs to be paid on a party-party basis; lump sum costs process directed for assessment.
Legal Topics
['trade Marks' 'costs' 'offers of Compromise' 'calderbank Offers']
['intellectual Property' 'civil Procedure'] ['trade Marks' 'costs' 'offers of Compromise' 'calderbank Offers']

Case Brief

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Procedural Posture

Cost Application Related to Trade Mark Litigation / Post Trial, Costs Determination Following Final Judgment

Legal Issues

  1. 1 ['Whether respondents/cross-claimants are entitled to indemnity costs on any of the alternative bases put forward' 'Whether applicant acted unreasonably in refusing settlement offers by respondents/cross-claimants']

Ratio Decidendi

The terms of the respondents’ offers, particularly the Calderbank offers, were not sufficiently commensurate with possible outcomes of the proceeding because they required obligations beyond relief obtainable in court, and refusing those offers was not unreasonable given the circumstances and stage of proceedings. Thus, indemnity costs were not warranted; costs to be assessed on the standard party-party basis.

Court Disposition

Respondents/cross-claimants’ application for indemnity costs dismissed; costs to be paid on a party-party basis; lump sum costs process directed for assessment.

Orders

  • ["Paragraphs 1 to 3 of the interlocutory application titled 'Costs Application' filed by the respondents/cross-claimants on 27 June 2023 be dismissed." "The respondents'/cross-claimants' costs are to be paid by the applicant/cross-respondent as between party and party." 'The costs that are the subject of Order 4 of...