CGM Investments Pty Ltd v Chelliah (No 3) [2003] FCA 405

CGM Investments Pty Ltd v Chelliah (No 3) [2003] FCA 405

The Wallera respondents' proposed apportionment was unsupportable because abandonment, although not initially identified, was always open on the facts and would inevitably have been considered; however, a rough apportionment reducing the applicants' costs by 20 per cent fairly reflected time and paperwork on unsuccessful issues. Indemnity costs were refused because the 30 August 2002 offer was not capable of acceptance by the Wallera respondents alone and rejection of the 3 March 2003 offer was not unreasonable as it would have required the Wallera respondents to give up their appeal rights. As to the Chelliah respondents, although unsuccessful, they acted in good faith and innocently, so...

Jurisdiction
Australia
Judgment Date
06 May 2003
Procedural Posture
Costs Application in Proceeding Concerning a Franchise Agreement and Trade Marks / Costs Determination After Preliminary Questions Under O 29 and Consent Final Orders
Outcome
The applicants were awarded 80 per cent of their party and party costs against the third, fourth and fifth respondents, were ordered to pay costs thrown away by the abandoned estoppel allegation, and no costs order was made between the applicants and the first and second respondents beyond each side bearing its own...
Legal Topics
['indemnity Costs' 'apportionment of Costs' 'costs Follow the Event' 'costs Thrown Away' 'offers to Resolve Dispute' 'preliminary Questions']
['costs' 'civil Procedure' 'trade Marks' 'franchise Agreements'] ['indemnity Costs' 'apportionment of Costs' 'costs Follow the Event' 'costs Thrown Away' 'offers to Resolve Dispute' 'preliminary Questions']

Case Brief

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Procedural Posture

Costs Application in Proceeding Concerning a Franchise Agreement and Trade Marks / Costs Determination After Preliminary Questions Under O 29 and Consent Final Orders

Legal Issues

  1. 1 ["Whether the applicants' costs against the third, fourth and fifth respondents should be assessed on an indemnity basis after offers made on 30 August 2002 or 3 March 2003." 'Whether costs between the applicants and the third, fourth and fifth respondents should be apportioned because the applicants succeeded on abandonment but failed on oral termination and abandoned estoppel.' 'Whether the applicants should receive indemnity costs against the first and second respondents, or whether each side should bear its own costs.']

Ratio Decidendi

The Wallera respondents' proposed apportionment was unsupportable because abandonment, although not initially identified, was always open on the facts and would inevitably have been considered; however, a rough apportionment reducing the applicants' costs by 20 per cent fairly reflected time and paperwork on unsuccessful issues. Indemnity costs were refused because the 30 August 2002 offer was not capable of acceptance by the Wallera respondents alone and rejection of the 3 March 2003 offer was not unreasonable as it would have required the Wallera respondents to give up their appeal rights. As to the Chelliah respondents, although unsuccessful, they acted in good faith and innocently, so...

Court Disposition

The applicants were awarded 80 per cent of their party and party costs against the third, fourth and fifth respondents, were ordered to pay costs thrown away by the abandoned estoppel allegation, and no costs order was made between the applicants and the first and second respondents beyond each side bearing its own...

Orders

  • ["The third, fourth and fifth respondents pay eighty per cent (80%) of the applicants' costs of the application against these respondents, such costs to be taxed on a party and party basis." "The applicants pay the third, fourth and fifth respondents' costs thrown away after 26 September 2002 by reason of its...