Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602

Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602

Costs should generally follow the event and be awarded in favour of successful respondents. Indemnity costs are not awarded against the applicants in respect of Figgins or the Bata directors (except for Alan Kelly from closure of the applicant's case, given lack of cross-examination and unchallenged evidence). Applicants are entitled to costs against Windsor Smith (and others found liable), but only for issues relevant to the Windsor Smith proceeding, with a 75% apportionment for common matters, reflecting the procedural economy of joint hearing. Reductions sought by applicants against respondents' costs mostly rejected, except for costs thrown away by late amendments to defences....

Parties
Applicant: Dr Martens Australia Pty Ltd; Applicant: R Griggs & Co Ltd; Applicant: Dr Ing. Herbert Funck; Applicant: Elisabeth Maertens; Applicant: Wollaston Vulcanising Company Ltd; Applicant: Dr Martens International Trading GmbH; Applicant: Dr Maertens Marketing GmbH; Respondent: Figgins Holdings Pty Ltd; Respondent: Sasha Shoes Pty Ltd; Respondent: Keith James Corn; Respondent: Mark Fagenblat; Respondent: Jeffrey Donald Figgins; Respondent: David Mayne Venner; Respondent: Lorraine Joy Figgins; Respondent: Mark Lane Robertson; Respondent: Evan Murray MacGregor; Respondent: Terence Roy Griffin; Respondent: Frederick Halcomb Moylan; Respondent: Bata Shoe Company of Australia Pty Ltd; Respondent: John Richard Beckwith; Respondent: Gordon Herbert Thring; Respondent: Malcolm William Grant; Respondent: Alan Kelly; Respondent: Rivers (Australia) Pty Ltd; Respondent: Louise Robyn Goodman; Respondent: Philip Harry Goodman; Respondent: Windsor Smith Pty Ltd; Respondent: Chicago Boot Company Pty Ltd; Respondent: Brett Mance; Respondent: Craig Mance; Respondent: Leanne Mance; Respondent: Diane Mance; Respondent: AD. Mance Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
10 May 2000
Procedural Posture
Proceedings for Costs Following Trial of Four Related Actions / Post Judgment (costs Determination)
Outcome
Costs determined as set out below; orders made in accordance with reasoning.
Legal Topics
Costs, Indemnity Costs, Party and Party Costs, Trade Practices, Apportionment of Costs, Calderbank Offers
Civil Procedure Costs Indemnity Costs Party and Party Costs Trade Practices Apportionment of Costs Calderbank Offers

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Parties

Dr Martens Australia Pty Ltd

Applicant

R Griggs & Co Ltd

Applicant

Dr Ing. Herbert Funck

Applicant

Elisabeth Maertens

Applicant

Wollaston Vulcanising Company Ltd

Applicant

Dr Martens International Trading GmbH

Applicant

Dr Maertens Marketing GmbH

Applicant

Figgins Holdings Pty Ltd

Respondent

Sasha Shoes Pty Ltd

Respondent

Keith James Corn

Respondent

Mark Fagenblat

Respondent

Jeffrey Donald Figgins

Respondent

David Mayne Venner

Respondent

Lorraine Joy Figgins

Respondent

Mark Lane Robertson

Respondent

Evan Murray MacGregor

Respondent

Terence Roy Griffin

Respondent

Frederick Halcomb Moylan

Respondent

Bata Shoe Company of Australia Pty Ltd

Respondent

John Richard Beckwith

Respondent

Gordon Herbert Thring

Respondent

Malcolm William Grant

Respondent

Alan Kelly

Respondent

Rivers (Australia) Pty Ltd

Respondent

Louise Robyn Goodman

Respondent

Philip Harry Goodman

Respondent

Windsor Smith Pty Ltd

Respondent

Chicago Boot Company Pty Ltd

Respondent

Brett Mance

Respondent

Craig Mance

Respondent

Leanne Mance

Respondent

Diane Mance

Respondent

AD. Mance Australia Pty Ltd

Respondent

Procedural Posture

Proceedings for Costs Following Trial of Four Related Actions / Post Judgment (costs Determination)

Legal Issues

  1. 1 Whether indemnity costs should be awarded against applicants in respect of certain respondents
  2. 2 Whether costs should follow the event or be apportioned, given joint hearing of four proceedings and mixed success
  3. 3 Appropriateness and effect of Calderbank offer

Ratio Decidendi

Costs should generally follow the event and be awarded in favour of successful respondents. Indemnity costs are not awarded against the applicants in respect of Figgins or the Bata directors (except for Alan Kelly from closure of the applicant's case, given lack of cross-examination and unchallenged evidence). Applicants are entitled to costs against Windsor Smith (and others found liable), but only for issues relevant to the Windsor Smith proceeding, with a 75% apportionment for common matters, reflecting the procedural economy of joint hearing. Reductions sought by applicants against respondents' costs mostly rejected, except for costs thrown away by late amendments to defences....

Court Disposition

Costs determined as set out below; orders made in accordance with reasoning.

Orders

  • Applicants to pay costs of successful respondents including reserved costs, on a party and party basis, save as varied below.
  • Applicants to pay Alan Kelly's costs on an indemnity basis from closing of applicants' case.