Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Woodtree Pty Ltd v Zheng (No 2) [2008] FCA 2
COSTS – appeal against dismissalby Federal Magistrate of copyright and Trade Practices claims – appellant rejected Calderbank offer prior to trial in Federal Magistrates Court – appellant successful on Trade Practices claims on appeal – appellant's recovery less favourable than respondents' offer Held: 1. Rejection of Calderbank offer is relevant to exercise of discretion in relation to costs on appeal 2. Appellant acted imprudently in rejecting offer 3. Respondents to pay appellant's costs on party and party basis up to refusal of offer, thereafter appellant to pay respondents' costs on indemnity basis 4. No order for costs of appeal Federal Court of Australia Act 1976 (Cth) s 51A Copyright Act 1968 (Cth) s 115 Federal Proceedings (Costs) Act 1981 (Cth) s 6 Federal Magistrates Court Regulations 2000 (Cth) sch 1 Woodtree Pty Ltd v Zheng [2007] FCA 1922 cited Calderbank v Calderbank [1975] 3 All ER 333 cited Fotheringham v Fotheringham (No2) (1999) 46 NSWLR 194 cited Ettingshausen v Australian Consolidated Press Ltd (1995) 38 NSWLR 404 cited Estate of Virgona v De Lautour (No 2) [2007] NSWCA 323 cited WOODTREE PTY LTD v HARRY ZHENG AND BLUE BOSS PTY LTD (NO 2) VID 514 OF 2007
HEEREY J
10 january 2008
MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 514 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WOODTREE PTY LTD
Appellant
AND: HARRY ZHENG
First Respondent
BLUE BOSS PTY LTD
Second Respondent
JUDGE: HEEREY J DATE OF ORDER: 10 january 2008
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. The orders of the Federal Magistrates Court made on 17 May 2007 and 29 June 2007 be set aide and in lieu thereof it is ordered that there be judgment for the appellant against the respondents for $3684.20 together with interest of $386.84. 2. The respondents pay the appellant's costs at first instance up to 7 June 2006 on a party and party basis. 3. The appellant pay the respondents' costs at first instance from 8 June 2006 on an indemnity basis. 4. There be no order as to the costs of the appeal. 5. There be a certificate under s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) for the respondents' costs on appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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