Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2008] FCA 126

Brother Industries, Ltd v Dynamic Supplies Pty Ltd [2008] FCA 126

Indemnity costs are awarded in respect of costs incurred on and after the date of the third offer of compromise as it was less favourable to the applicants than the final orders, subject to discretion; additional indemnity costs are awarded for costs incurred relating to evidence of reputation, trap purchases and chain of possession, and the respondent's untenable cross-claim due to unreasonable conduct.

Jurisdiction
Australia
Judgment Date
20 February 2008
Procedural Posture
Application for Costs Order Following Trade Mark Infringement Proceedings / Post Judgment (costs Determination)
Outcome
Applicants substantially successful in costs application; specific apportionment granted.
Legal Topics
['indemnity Costs' 'offers of Compromise' 'trade Mark Infringement' 'evidence' 'cross Claims']
['civil Procedure' 'intellectual Property' 'costs'] ['indemnity Costs' 'offers of Compromise' 'trade Mark Infringement' 'evidence' 'cross Claims']

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Procedural Posture

Application for Costs Order Following Trade Mark Infringement Proceedings / Post Judgment (costs Determination)

Legal Issues

  1. 1 ["Whether indemnity costs should be awarded to applicants based on respondent's rejection of offers of compromise and litigation conduct" 'Application of O 23 r 11(4) of the Federal Court Rules 1979 (Cth) to the offers of compromise' "Whether respondent's actions (failure to admit, untenable cross-claim) warrant indemnity costs on specific issues"]

Ratio Decidendi

Indemnity costs are awarded in respect of costs incurred on and after the date of the third offer of compromise as it was less favourable to the applicants than the final orders, subject to discretion; additional indemnity costs are awarded for costs incurred relating to evidence of reputation, trap purchases and chain of possession, and the respondent's untenable cross-claim due to unreasonable conduct.

Court Disposition

Applicants substantially successful in costs application; specific apportionment granted.

Orders

  • ['Dynamic Supplies Pty Ltd to pay Brother Industries, Ltd and Brother International (Aust) Pty Ltd indemnity costs for proceedings incurred on and after 30 May 2007 (third offer date), party-party costs up to that date.' 'Dynamic Supplies Pty Ltd to pay indemnity costs in relation to evidence of reputation, trap...