Bryer Merchandisers Pty Ltd v Nike Australia Pty Ltd [2004] FCA 198

Bryer Merchandisers Pty Ltd v Nike Australia Pty Ltd [2004] FCA 198

Justice required a departure from the general rule due to the discrete nature and history of the interlocutory hearings and the prolonged litigation. Therefore, the respondent is entitled to have the costs from the first four interlocutory orders, and the present motion, taxed and paid forthwith, but not for the consent order of 5 September 2003, which may await the conclusion of the principal proceeding.

Jurisdiction
Australia
Judgment Date
10 March 2004
Procedural Posture
Interlocutory Application / Costs Hearing After Multiple Interlocutory Orders
Outcome
Application allowed in part. Costs awarded to the respondent payable forthwith for specified interlocutory orders and present motion; costs for the order of 5 September 2003 to await conclusion of proceeding.
Legal Topics
['costs' 'interlocutory Proceedings' 'federal Court Rules']
['civil Procedure'] ['costs' 'interlocutory Proceedings' 'federal Court Rules']

Case Brief

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Procedural Posture

Interlocutory Application / Costs Hearing After Multiple Interlocutory Orders

Legal Issues

  1. 1 ['Whether the respondent is entitled to immediate payment of costs under interlocutory orders despite the principal proceeding not being concluded.' 'Whether justice requires a departure from the usual rule delaying payment of interlocutory costs until the conclusion of proceedings.']

Ratio Decidendi

Justice required a departure from the general rule due to the discrete nature and history of the interlocutory hearings and the prolonged litigation. Therefore, the respondent is entitled to have the costs from the first four interlocutory orders, and the present motion, taxed and paid forthwith, but not for the consent order of 5 September 2003, which may await the conclusion of the principal proceeding.

Court Disposition

Application allowed in part. Costs awarded to the respondent payable forthwith for specified interlocutory orders and present motion; costs for the order of 5 September 2003 to await conclusion of proceeding.

Orders

  • ['The respondent may tax the costs awarded to it under the orders made on 28 February 2001, 27 April 2001, 18 November 2002, 16 May 2003 and the costs of its motion, notice of which was filed on 30 September 2003.' 'Such taxed costs, save those payable under the order made on 5 September 2003, are to be paid...