Pacific Boating Group Pty Ltd v Freedom Boating Club Pty Ltd [2012] FCA 72

Pacific Boating Group Pty Ltd v Freedom Boating Club Pty Ltd [2012] FCA 72

The respondents’ persistent non-compliance with court orders, including failure to comply with discovery orders and their abandonment of their Defence, justified the entering of default judgment in favour of the applicant. On the uncontested case, the applicant was entitled to relief for misleading or deceptive conduct and passing off. However, the conditions attached to the applicant’s Calderbank offer were found to be unreasonable, so costs were not awarded on an indemnity basis, but on the ordinary basis.

Parties
Applicant: Pacific Boating Group Pty Ltd (ACN 117 497 364); First Respondent: Freedom Boating Club Pty Ltd (ACN 141 873 547); Second Respondent: Delwyn Clark
Jurisdiction
Australia
Judgment Date
08 February 2012
Procedural Posture
Civil / Judgment After Interlocutory Application for Default Judgment
Outcome
Default judgment for applicant; injunctive and pecuniary relief granted; costs on party/party basis
Legal Topics
Default Judgment, Injunctions, Misleading or Deceptive Conduct, Passing Off, Discovery and Procedural Compliance, Costs
Practice and Procedure Consumer Law Intellectual Property Default Judgment Injunctions Misleading or Deceptive Conduct Passing Off Discovery and Procedural Compliance +1 more

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Parties

Pacific Boating Group Pty Ltd (ACN 117 497 364)

Applicant

Freedom Boating Club Pty Ltd (ACN 141 873 547)

First Respondent

Delwyn Clark

Second Respondent

Procedural Posture

Civil / Judgment After Interlocutory Application for Default Judgment

Legal Issues

  1. 1 Whether default judgment should be entered due to failure to comply with court orders under Federal Court Rules 2011
  2. 2 Whether injunctive relief should be granted for alleged contraventions of the Australian Consumer Law and passing off
  3. 3 Whether costs should be paid on an indemnity basis due to a Calderbank offer

Ratio Decidendi

The respondents’ persistent non-compliance with court orders, including failure to comply with discovery orders and their abandonment of their Defence, justified the entering of default judgment in favour of the applicant. On the uncontested case, the applicant was entitled to relief for misleading or deceptive conduct and passing off. However, the conditions attached to the applicant’s Calderbank offer were found to be unreasonable, so costs were not awarded on an indemnity basis, but on the ordinary basis.

Court Disposition

Default judgment for applicant; injunctive and pecuniary relief granted; costs on party/party basis

Orders

  • The hearing fixed to commence on 13 February 2012 vacated.
  • The first respondent and its agents permanently restrained from using the applicant’s name or diverting web traffic as specified.