FEDERAL COURT OF AUSTRALIA Peter Vogel Instruments Pty Ltd v Fairlight.Au Pty Ltd (No 2) [2016] FCAFC 191 Appeal from: Fairlight.AU Pty Ltd v Peter Vogel Instruments Pty Ltd (No 3) [2015] FCA 1422 File number: NSD 99 of 2016 Judges: BESANKO, EDELMAN AND BURLEY JJ Date of judgment: 22 December 2016 Cases cited: Peter Vogel Instruments Pty Ltd v Fairlight.Au Pty Ltd [2016] FCAFC 172 Date of hearing: Heard on the papers Date of last submissions: 19 December 2016 Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Sub-area: Trade Marks Category: No Catchwords Number of paragraphs: 4 Counsel for the Appellant: Mr M Green SC and Mr G E Babe Solicitor for the Appellant: Clear Lawyers Solicitor for the First and Second Respondents: Kalus Kenny Intelex ORDERS NSD 99 of 2016 BETWEEN: PETER VOGEL INSTRUMENTS PTY LTD (ACN 140 173 397) Appellant AND: FAIRLIGHT.AU PTY LTD (ACN 104 307 888) First Respondent KFT INVESTMENTS PTY LTD (ACN 005 144 945) Second Respondent JUDGES: BESANKO, EDELMAN AND BURLEY JJ DATE OF ORDER: 22 DECEMBER 2016 THE COURT ORDERS THAT: 1. The respondents pay 50% of the appellant's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 In the course of delivering judgment and making orders in relation to this appeal we expressed our preliminary view that, in light of the outcome, the respondents should pay 50% of the appellant's costs of the appeal; Peter Vogel Instruments Pty Ltd v Fairlight.Au Pty Ltd [2016] FCAFC 172 at [88]. As the parties had not addressed us on the question of costs at the hearing of the appeal, we invited them to provide short written submissions in relation to our preliminary view. 2 The parties have now provided their submissions. It is accepted by all that it is appropriate for the appellant to receive 50% of its costs of the appeal, but the respondents submit that the first respondent only should be obliged to pay those costs. The second respondent is the parent company of the first respondent. The respondents submit that the appellant was successful in its appeal only against the first respondent. 3 Notwithstanding this submission, it is our view that the order for costs should be against both respondents. Both were parties to the appeal, both appeared at the hearing and both jointly opposed the appeal. No attempt was made at any stage during the appeal to differentiate between any submissions made by one respondent or the other. Further, we have upheld ground 5 of the appeal which concerned alleged copyright infringement. That ground affects both respondents. In that context it is not correct that the appellant was successful only against the first respondent. 4 Accordingly, we order that the respondents pay 50% of the appellant's costs of the appeal. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Edelman and Burley. Associate: Dated: 22 December 2016