Halal Certification Authority Pty Limited v Quality Kebabs Wholesalers Pty Limited (No 3) [2014] FCA 1055

Halal Certification Authority Pty Limited v Quality Kebabs Wholesalers Pty Limited (No 3) [2014] FCA 1055

It was not unreasonable for Quality Kebabs and Mr Kose to reject the Calderbank offer because it was made very late, two days before trial after the proceeding had been on foot for 200 days, was open for only one day, and required attention while they were preparing for trial; the applicant recovered only nominal damages apart from additional damages that were not the subject of substantive argument and were not mentioned in the offer. Costs were not reduced under FCR 40.08 because the matter was an intellectual property case involving a novel issue about additional damages, took a single day, and the Court was not satisfied that costs were wasted by commencing in the Federal Court.

Jurisdiction
Australia
Judgment Date
01 October 2014
Procedural Posture
Costs Application / Heard on the Papers After Costs Order Made on 13 June 2014
Outcome
The applicant's application for indemnity costs was dismissed, the existing costs order remained, and the applicant was ordered to pay the first and second respondents' costs of the indemnity costs application.
Legal Topics
['indemnity Costs' 'calderbank Offer' 'reduction in Costs Otherwise Payable' 'federal Court Rules 2011 (cth) R 40.08' 'additional Damages']
['costs' 'civil Procedure' 'intellectual Property'] ['indemnity Costs' 'calderbank Offer' 'reduction in Costs Otherwise Payable' 'federal Court Rules 2011 (cth) R 40.08' 'additional Damages']

Case Brief

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Procedural Posture

Costs Application / Heard on the Papers After Costs Order Made on 13 June 2014

Legal Issues

  1. 1 ["Whether the applicant's Calderbank offer dated 29 April 2014 was unreasonably refused so as to justify indemnity costs from that date." 'Whether costs otherwise payable to the applicant should be reduced under Federal Court Rules 2011 (Cth) r 40.08.']

Ratio Decidendi

It was not unreasonable for Quality Kebabs and Mr Kose to reject the Calderbank offer because it was made very late, two days before trial after the proceeding had been on foot for 200 days, was open for only one day, and required attention while they were preparing for trial; the applicant recovered only nominal damages apart from additional damages that were not the subject of substantive argument and were not mentioned in the offer. Costs were not reduced under FCR 40.08 because the matter was an intellectual property case involving a novel issue about additional damages, took a single day, and the Court was not satisfied that costs were wasted by commencing in the Federal Court.

Court Disposition

The applicant's application for indemnity costs was dismissed, the existing costs order remained, and the applicant was ordered to pay the first and second respondents' costs of the indemnity costs application.

Orders

  • ["The applicant's application for indemnity costs be dismissed." 'The applicant pay the costs of the first and second respondents of that application as taxed or agreed.']