Jewelsnloo Pty Ltd v Sengos (No 3) [2016] NSWSC 535

Jewelsnloo Pty Ltd v Sengos (No 3) [2016] NSWSC 535

Given the plaintiff only succeeded in obtaining an injunction for passing off and failed in all other claims, including against the second and third defendants, and given the reasonable early Calderbank offer by the second and third defendants which was unreasonably rejected, an apportionment of costs is warranted: the plaintiff is to pay 75% of the first, fourth and fifth defendants' costs, with a 25% reduction to reflect its success on passing off, and is to pay the second and third defendants' costs on the ordinary basis to the date of the Calderbank offer and on the indemnity basis thereafter. Additionally, the director of the plaintiff is personally liable for costs owed to the...

Jurisdiction
Australia
Judgment Date
29 April 2016
Procedural Posture
Costs Determination / Post Trial, Costs Judgment
Outcome
Orders for apportionment of costs, indemnity costs against the plaintiff after Calderbank offer, and personal costs liability for the plaintiff's director.
Legal Topics
['apportionment of Costs' 'indemnity Costs' 'calderbank Offer' 'passing Off' 'misleading and Deceptive Conduct']
['equity' 'costs'] ['apportionment of Costs' 'indemnity Costs' 'calderbank Offer' 'passing Off' 'misleading and Deceptive Conduct']

Case Brief

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Procedural Posture

Costs Determination / Post Trial, Costs Judgment

Legal Issues

  1. 1 ['Whether the plaintiff or the defendants should pay costs of the proceedings given partial success of the plaintiff' 'Whether the costs should be apportioned and, if so, to what extent' 'Whether director of the plaintiff company should be personally liable for costs by reason of undertaking' 'Whether there was a valid Calderbank offer from the second and third defendants and if indemnity costs should be ordered']

Ratio Decidendi

Given the plaintiff only succeeded in obtaining an injunction for passing off and failed in all other claims, including against the second and third defendants, and given the reasonable early Calderbank offer by the second and third defendants which was unreasonably rejected, an apportionment of costs is warranted: the plaintiff is to pay 75% of the first, fourth and fifth defendants' costs, with a 25% reduction to reflect its success on passing off, and is to pay the second and third defendants' costs on the ordinary basis to the date of the Calderbank offer and on the indemnity basis thereafter. Additionally, the director of the plaintiff is personally liable for costs owed to the...

Court Disposition

Orders for apportionment of costs, indemnity costs against the plaintiff after Calderbank offer, and personal costs liability for the plaintiff's director.

Orders

  • ["The plaintiff is to pay 75% of the first, fourth and fifth defendants' costs of the proceedings on the ordinary basis." 'Mr Julian Kenneth Facer is ordered to personally pay to the first and fourth defendants, all of the costs that the plaintiff is ordered to pay those defendants.' "The plaintiff is to pay the...