Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72

Austin, Nichols & Co Inc v Lodestar Anstalt (No 2) [2012] FCAFC 72

The unentered costs order should be varied to correct the Court's oversight by adding the costs of the proceeding below and the application for leave to appeal, because the appellants succeeded on the appeal and there was no sound reason to depart from the ordinary practice that the successful appellant recover the costs of the appeal and trial. The appeal costs should not be apportioned merely because not all arguments succeeded. Indemnity costs were refused because the offer of compromise made below did not trigger the indemnity costs presumption for the appeal, no appeal offer was made, and the appellants gave no explanation for the delay and failure to seek or foreshadow a special...

Jurisdiction
Australia
Judgment Date
17 May 2012
Procedural Posture
Application to Vary Costs Orders in an Appeal / Heard on the Papers Under R 39.04 of the Federal Court Rules 2011 After the Full Court Allowed the Appeal
Outcome
Application to vary the Court's order allowed in part; indemnity costs refused; each party to pay its own costs of the application to vary.
Legal Topics
['variation of Unentered Orders' 'costs of Appeal and Proceeding Below' 'indemnity Costs' 'offer of Compromise' 'security for Costs' 'non Use of Trade Mark']
['civil Procedure' 'costs' 'trade Marks'] ['variation of Unentered Orders' 'costs of Appeal and Proceeding Below' 'indemnity Costs' 'offer of Compromise' 'security for Costs' 'non Use of Trade Mark']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Vary Costs Orders in an Appeal / Heard on the Papers Under R 39.04 of the Federal Court Rules 2011 After the Full Court Allowed the Appeal

Legal Issues

  1. 1 ['Should the costs order be varied at all, having regard to the delay in seeking its variation?' 'Should the costs order be extended to cover the costs of the proceeding at first instance?' 'If the costs order is varied, should the appellants only recover part of their costs on the appeal?' 'On what basis should costs be awarded?' 'Whether an offer of compromise made at first instance justified indemnity costs for the proceeding below or the appeal.']

Ratio Decidendi

The unentered costs order should be varied to correct the Court's oversight by adding the costs of the proceeding below and the application for leave to appeal, because the appellants succeeded on the appeal and there was no sound reason to depart from the ordinary practice that the successful appellant recover the costs of the appeal and trial. The appeal costs should not be apportioned merely because not all arguments succeeded. Indemnity costs were refused because the offer of compromise made below did not trigger the indemnity costs presumption for the appeal, no appeal offer was made, and the appellants gave no explanation for the delay and failure to seek or foreshadow a special...

Court Disposition

Application to vary the Court's order allowed in part; indemnity costs refused; each party to pay its own costs of the application to vary.

Orders

  • ["Order 3 of the orders made on 21 February 2012 be varied so that it reads: The respondent pay the appellants' costs of the appeal (including the costs of the application for leave to appeal) and of the proceeding below." "All amounts paid by the appellants in respect of security for the respondent's costs,...