Australian Competition and Consumer Commission v Kaye (No 2) [2004] FCA 1628

Australian Competition and Consumer Commission v Kaye (No 2) [2004] FCA 1628

The applicant was substantially successful in obtaining declaratory and injunctive relief for misleading or deceptive conduct, and its conduct was not unreasonable or inappropriate to deprive it of an award of costs, nor was the unsuccessful claim regarding newspaper advertisements a sufficiently discrete issue to warrant apportionment. Costs should follow the event, excluding costs of the motion for particulars which should lie where they fall.

Jurisdiction
Australia
Judgment Date
10 December 2004
Procedural Posture
Civil / Post Trial Costs Determination Following Substantive Judgment
Outcome
Declarations and injunctions granted against Henry Kaye for misleading or deceptive conduct; costs awarded to applicant, with costs of the motion of 23 December 2003 to lie where they fall.
Legal Topics
['misleading or Deceptive Conduct' 'costs' 'injunctions' 'declaratory Relief']
['consumer Protection' 'competition Law'] ['misleading or Deceptive Conduct' 'costs' 'injunctions' 'declaratory Relief']

Case Brief

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Procedural Posture

Civil / Post Trial Costs Determination Following Substantive Judgment

Legal Issues

  1. 1 ['Whether costs should follow the event when the applicant failed to make out part of its pleaded case' 'Whether costs should be apportioned as to discrete issues' 'Whether the first respondent should be awarded costs for successfully defending newspaper advertisement claims and on a motion for particulars']

Ratio Decidendi

The applicant was substantially successful in obtaining declaratory and injunctive relief for misleading or deceptive conduct, and its conduct was not unreasonable or inappropriate to deprive it of an award of costs, nor was the unsuccessful claim regarding newspaper advertisements a sufficiently discrete issue to warrant apportionment. Costs should follow the event, excluding costs of the motion for particulars which should lie where they fall.

Court Disposition

Declarations and injunctions granted against Henry Kaye for misleading or deceptive conduct; costs awarded to applicant, with costs of the motion of 23 December 2003 to lie where they fall.

Orders

  • ['Henry Kaye permanently restrained from causing broadcasts or publications of misleading radio and Internet advertisements as specified.' "Henry Kaye to pay applicant's costs of the proceeding, except for costs reserved on the motion dated 23 December 2003, on a party-party basis to be taxed in default of agreement."]