Luxottica Retail Australia v Grant & Ors (No. 2) [2009] NSWSC 736

Luxottica Retail Australia v Grant & Ors (No. 2) [2009] NSWSC 736

The plaintiff obtained consent delivery-up orders without admissions but failed on the only substantive issue litigated, its claim for additional damages for breach of copyright, and nominal damages did not amount to substantial success. The defendants' offer of 17 February 2009 gave the plaintiff substantially the whole relief it ultimately obtained and should have been accepted; the plaintiff's rejection was unreasonable because its principal insistence was on costs to which it was not entitled. The appropriate order was that the plaintiff pay the defendants' ordinary costs from and including 18 February 2009, with otherwise no order as to costs.

Jurisdiction
Australia
Judgment Date
31 July 2009
Procedural Posture
Costs Decision in Equity Proceedings / After Orders Made on 9 March 2009, on Written Submissions as to Costs
Outcome
The plaintiff was ordered to pay the defendants' costs of the proceedings from and including 18 February 2009 on the ordinary basis, with otherwise no order as to costs. Indemnity costs were refused.
Legal Topics
['costs Discretion' 'costs Following the Event' 'settlement Offers' 'consent Orders Without Admissions' 'nominal Damages' 'indemnity Costs' 'copyright' 'confidential Information']
['civil Procedure' 'costs' 'equity' 'intellectual Property'] ['costs Discretion' 'costs Following the Event' 'settlement Offers' 'consent Orders Without Admissions' 'nominal Damages' 'indemnity Costs' 'copyright' 'confidential Information']

Case Brief

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Procedural Posture

Costs Decision in Equity Proceedings / After Orders Made on 9 March 2009, on Written Submissions as to Costs

Legal Issues

  1. 1 ['Whether the plaintiff or defendants had substantial success for the purpose of costs.' 'Whether the Court should depart from the general rule that costs follow the event.' "Whether the defendants' settlement offers should affect the costs order." "Whether the plaintiff's rejection of the defendants' offer of 17 February 2009 was unreasonable." 'Whether the defendants should receive indemnity costs.']

Ratio Decidendi

The plaintiff obtained consent delivery-up orders without admissions but failed on the only substantive issue litigated, its claim for additional damages for breach of copyright, and nominal damages did not amount to substantial success. The defendants' offer of 17 February 2009 gave the plaintiff substantially the whole relief it ultimately obtained and should have been accepted; the plaintiff's rejection was unreasonable because its principal insistence was on costs to which it was not entitled. The appropriate order was that the plaintiff pay the defendants' ordinary costs from and including 18 February 2009, with otherwise no order as to costs.

Court Disposition

The plaintiff was ordered to pay the defendants' costs of the proceedings from and including 18 February 2009 on the ordinary basis, with otherwise no order as to costs. Indemnity costs were refused.

Orders

  • ["The plaintiff pay the defendants' costs of the proceedings from and including 18 February 2009." 'There otherwise be no order as to the costs of the proceedings.']