Edutainments Pty Ltd v JMC Pty Ltd [2003] FCA 1253

FEDERAL COURT OF AUSTRALIA

Edutainments Pty Ltd v JMC Pty Ltd [2003] FCA 1253 COSTS – indemnity costs – trade mark dispute over computer generated characters - offer of compromise – only costs remained in dispute – inappropriate in circumstances for parties to proceed to hearing without advising the Court that costs only issue in dispute - whether applicant's refusal to settle imprudent and unreasonable in all of the circumstances Australian Securities Commission v Aust‑Home Investments Limited (1993) 44 FCR 194 referred to Black v Lipovac [1998] FCA 699 (FC) referred to Coshott v Learoyd [1999] FCA 276 referred to Edutainments Pty Ltd v JMC Pty Ltd [2003] FCA 923 referred to Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 cited Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 143 ACR 1 cited South East Queensland Electricity Board v Australian Telecommunications Commission (unreported, Pincus J, 10 February 1989) cited Yates Property Corporation Pty Ltd v Boland (2000) 179 ALR 664 referred to EDUTAINMENTS PTY LTD (ACN 074 008 978) v JMC PTY LTD (ACN 003 572 012) N 1387 of 2002 BRANSON J 7 NOVEMBER 2003 CANBERRA (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1387 of 2002

BETWEEN: EDUTAINMENTS PTY LTD (ACN 074 008 978)

APPLICANT

AND: JMC PTY LTD (ACN 003 572 012)

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 7 NOVEMBER 2003

WHERE MADE: CANBERRA (HEARD IN SYDNEY)

THE COURT ORDERS THAT: The applicant pay the respondent's costs on the following bases: (a) the costs incurred up to and including 6 February 2003 as taxed on a party and party basis; and (b) the costs incurred after 6 February 2003 in a sum to be ascertained on the basis that the respondent is to be indemnified by the applicant for its costs except insofar as its costs were in an unreasonable amount or were unreasonably incurred.