Koninklijke Douwe Egberts BV v Cantarella Bros Pty Ltd (Costs) [2025] FCA 38

Koninklijke Douwe Egberts BV v Cantarella Bros Pty Ltd (Costs) [2025] FCA 38

The whole proceeding should be viewed as one event, as the respondent’s cross-claim was defensive, reasonable and integrated with its response to the applicants’ unsuccessful claim. The applicants, having instigated the proceeding and failed, should pay the respondent’s costs of both the proceeding and the cross-claim. It was not unreasonable for the applicants not to accept the Calderbank offer; accordingly, costs are not awarded on an indemnity basis.

Parties
First Applicant: KONINKLIJKE DOUWE EGBERTS B.V; Second Applicant: JACOBS DOUWE EGBERTS AU PTY LTD (ACN 051 278 409); Respondent: CANTARELLA BROS PTY LTD (ACN 000 095 607)
Jurisdiction
Australia
Judgment Date
31 January 2025
Procedural Posture
Costs Application / Post Trial Judgment on Costs
Outcome
The applicants to pay the respondent’s costs of the proceeding (including the cross-claim) on a party and party basis. Application for indemnity costs refused.
Legal Topics
Costs, Trade Mark Infringement, Cross Claim Procedure, Calderbank Offer
Intellectual Property Law Civil Procedure Costs Trade Mark Infringement Cross Claim Procedure Calderbank Offer

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Parties

KONINKLIJKE DOUWE EGBERTS B.V

First Applicant

JACOBS DOUWE EGBERTS AU PTY LTD (ACN 051 278 409)

Second Applicant

CANTARELLA BROS PTY LTD (ACN 000 095 607)

Respondent

Procedural Posture

Costs Application / Post Trial Judgment on Costs

Legal Issues

  1. 1 Whether the respondent should have its costs of the unsuccessful cross-claim
  2. 2 Whether the applicants should pay the respondent’s costs of the proceeding and cross-claim as one event
  3. 3 Whether the respondent’s Calderbank offer justified indemnity costs

Ratio Decidendi

The whole proceeding should be viewed as one event, as the respondent’s cross-claim was defensive, reasonable and integrated with its response to the applicants’ unsuccessful claim. The applicants, having instigated the proceeding and failed, should pay the respondent’s costs of both the proceeding and the cross-claim. It was not unreasonable for the applicants not to accept the Calderbank offer; accordingly, costs are not awarded on an indemnity basis.

Court Disposition

The applicants to pay the respondent’s costs of the proceeding (including the cross-claim) on a party and party basis. Application for indemnity costs refused.

Orders

  • The applicants pay the respondent’s costs of the proceeding (including the cross-claim) on a party and party basis.
  • By 4.00 pm on 6 February 2025, the parties submit to the Chambers of the Hon. Justice Wheelahan proposed consent orders relating to the procedure for the assessment of those costs.