Moroccanoil Israel Ltd v Aldi Foods Pty Ltd (No 2) [2017] FCA 1393

Moroccanoil Israel Ltd v Aldi Foods Pty Ltd (No 2) [2017] FCA 1393

As the applicant achieved only partial success and the case involved mixed outcomes with considerable overlap in evidence, the appropriate order is for the respondents to pay 35% of the applicant's costs in the main proceeding, with costs otherwise on the ordinary basis and to be paid as a lump sum; the requirements for indemnity costs under r 25.14 were not met and offers of compromise did not justify indemnity or shifting of costs.

Jurisdiction
Australia
Judgment Date
29 November 2017
Procedural Posture
Costs Application in Trade Mark and Consumer Law Proceedings / Post Judgment (costs Determination Following Substantive and Appeal Judgment)
Outcome
Partially in favour of applicant (costs).
Legal Topics
['trade Marks' 'passing Off' 'australian Consumer Law' 'costs' 'offers of Compromise' 'lump Sum Costs']
['intellectual Property' 'civil Procedure'] ['trade Marks' 'passing Off' 'australian Consumer Law' 'costs' 'offers of Compromise' 'lump Sum Costs']

Case Brief

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Procedural Posture

Costs Application in Trade Mark and Consumer Law Proceedings / Post Judgment (costs Determination Following Substantive and Appeal Judgment)

Legal Issues

  1. 1 ['Appropriate costs order where applicant succeeded in part and failed in part' 'Whether indemnity costs should be ordered after interdependent offers of compromise not accepted' 'Whether a lump sum costs order and percentage order is appropriate']

Ratio Decidendi

As the applicant achieved only partial success and the case involved mixed outcomes with considerable overlap in evidence, the appropriate order is for the respondents to pay 35% of the applicant's costs in the main proceeding, with costs otherwise on the ordinary basis and to be paid as a lump sum; the requirements for indemnity costs under r 25.14 were not met and offers of compromise did not justify indemnity or shifting of costs.

Court Disposition

Partially in favour of applicant (costs).

Orders

  • ["The respondents pay 35% of the applicant's costs in NSD 613 of 2015." 'There be no variation in the order for costs made in NSD 1297 of 2015.' 'Costs of both proceedings be awarded on the ordinary basis.' 'Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), the costs of the two proceedings be paid in a...