The Agency Group Australia Ltd v H.A.S. Real Estate Pty Ltd (No 2) [2024] FCAFC 44

The Agency Group Australia Ltd v H.A.S. Real Estate Pty Ltd (No 2) [2024] FCAFC 44

It was not unreasonable for the appellants to refuse the offer of compromise, as it included an extraneous sum for re-branding costs, which the appellants were not, and would never be, liable to pay. The appeal was arguable, and the offer sought contributions beyond those at issue in the litigation. Indemnity costs were therefore refused, and costs awarded instead on a party and party basis in a lump sum to be assessed by a Registrar if not agreed.

Parties
First Appellant: The Agency Group Australia Ltd; Second Appellant: Ausnet Real Estate Services Pty Ltd; Third Appellant: The Agency Sales NSW Pty Ltd; Respondent: H.A.S. Real Estate Pty Ltd
Jurisdiction
Australia
Judgment Date
02 April 2024
Procedural Posture
Appeal / Application for Costs Following Dismissal of Appeal
Outcome
Respondent's application for indemnity costs refused; costs to be paid on a lump sum basis assessed by Registrar if not agreed
Legal Topics
Costs, Offers of Compromise, Trade Marks
Intellectual Property Costs Offers of Compromise Trade Marks

Case Brief

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Parties

The Agency Group Australia Ltd

First Appellant

Ausnet Real Estate Services Pty Ltd

Second Appellant

The Agency Sales NSW Pty Ltd

Third Appellant

H.A.S. Real Estate Pty Ltd

Respondent

Procedural Posture

Appeal / Application for Costs Following Dismissal of Appeal

Legal Issues

  1. 1 Whether the applicants' failure to accept the offer of compromise was unreasonable
  2. 2 Whether costs should be awarded on an indemnity basis from a specified date
  3. 3 Whether costs should be apportioned due to partial success or failure on certain issues

Ratio Decidendi

It was not unreasonable for the appellants to refuse the offer of compromise, as it included an extraneous sum for re-branding costs, which the appellants were not, and would never be, liable to pay. The appeal was arguable, and the offer sought contributions beyond those at issue in the litigation. Indemnity costs were therefore refused, and costs awarded instead on a party and party basis in a lump sum to be assessed by a Registrar if not agreed.

Court Disposition

Respondent's application for indemnity costs refused; costs to be paid on a lump sum basis assessed by Registrar if not agreed

Orders

  • Leave be given to the respondent to rely on the affidavit of Giuseppe Antonio Russo sworn on 5 January 2024 on the question of costs.
  • Leave be given to the appellants to rely on the affidavit of Joshua Joseph Simons affirmed on 18 January 2024 on the question of costs.