Henley Arch Pty Ltd v Henley Constructions Pty Ltd (No 2) [2022] FCA 231

Henley Arch Pty Ltd v Henley Constructions Pty Ltd (No 2) [2022] FCA 231

The Applicant was entitled to indemnity costs from 11am on the second business day after the 26 November 2019 offer was served because the offer was a genuine offer of compromise under r 25.14(3) of the Federal Court Rules 2011 (Cth) and the judgment was more favourable to the Applicant than the offer. The offer gave up legal costs, did not include an ACL injunction, and allowed a six-month transition period, whereas the liability judgment found trade mark infringement and ACL contraventions, entitled the Applicant to injunctions, and resulted in costs orders in its favour. The September 2017 Calderbank offer did not justify earlier indemnity costs because rejection was not unreasonable...

Jurisdiction
Australia
Judgment Date
17 March 2022
Procedural Posture
Costs Determination in Intellectual Property, Trade Marks and Australian Consumer Law Proceeding / After Liability Judgment; Determination of Indemnity Costs and Lump Sum Costs Following Settlement Offers
Outcome
Respondents ordered to pay the Applicant's costs on an indemnity basis and as a lump sum from 11am on the second business day after the 26 November 2019 offer was served.
Legal Topics
['indemnity Costs' 'offer of Compromise Under R 25.14 of the Federal Court Rules 2011 (cth)' 'calderbank Offer' 'lump Sum Costs' 'trade Mark Infringement' 'misleading or Deceptive Conduct']
['costs' 'intellectual Property' 'trade Marks' 'australian Consumer Law'] ['indemnity Costs' 'offer of Compromise Under R 25.14 of the Federal Court Rules 2011 (cth)' 'calderbank Offer' 'lump Sum Costs' 'trade Mark Infringement' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Costs Determination in Intellectual Property, Trade Marks and Australian Consumer Law Proceeding / After Liability Judgment; Determination of Indemnity Costs and Lump Sum Costs Following Settlement Offers

Legal Issues

  1. 1 ["Whether the Respondents should pay the Applicant's costs on an indemnity basis after refusing the September 2017 Calderbank offer." 'Whether the Applicant obtained a judgment more favourable than the terms of the 26 November 2019 offer of compromise made under r 25.14 of the Federal Court Rules 2011 (Cth).' 'Whether costs should be assessed as a lump sum or by taxation.']

Ratio Decidendi

The Applicant was entitled to indemnity costs from 11am on the second business day after the 26 November 2019 offer was served because the offer was a genuine offer of compromise under r 25.14(3) of the Federal Court Rules 2011 (Cth) and the judgment was more favourable to the Applicant than the offer. The offer gave up legal costs, did not include an ACL injunction, and allowed a six-month transition period, whereas the liability judgment found trade mark infringement and ACL contraventions, entitled the Applicant to injunctions, and resulted in costs orders in its favour. The September 2017 Calderbank offer did not justify earlier indemnity costs because rejection was not unreasonable...

Court Disposition

Respondents ordered to pay the Applicant's costs on an indemnity basis and as a lump sum from 11am on the second business day after the 26 November 2019 offer was served.

Orders

  • ["The Respondents pay the Applicant's costs pursuant to Order 9 of the Court's orders dated 25 November 2021 in a lump sum and on an indemnity basis from 11am on the second business day after the 26 November 2019 offer was served pursuant to rules 40.02(b) and (c) of the Federal Court Rules 2011 (Cth)." 'If the...