Juicy Couture, Inc v Chen [2009] FCA 1578

FEDERAL COURT OF AUSTRALIA

Juicy Couture, Inc v Chen [2009] FCA 1578 JUICY COUTURE, INC v SOPHY CHEN

VID 204 of 2009

KENNY J

23 December 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 204 of 2009

GENERAL DIVISION

BETWEEN: JUICY COUTURE, INC

Applicant

AND: SOPHY CHEN

Respondent

JUDGE: KENNY J

DATE OF ORDER: 23 December 2009

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The respondent pay the applicant's costs of the proceeding fixed in the sum of $6,800.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 204 of 2009

GENERAL DIVISION

BETWEEN: JUICY COUTURE, INC

Applicant

AND: SOPHY CHEN

Respondent

JUDGE: KENNY J

DATE: 23 December 2009

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By an application and statement of claim filed on 2 April 2009, the applicant, Juicy Couture Inc, alleged that the respondent, Sophy Chen, infringed a number of its registered trade marks. Juicy Couture sought injunctive relief and other orders. 2 On 22 May 200, Ms Chen consented to the making of a number of orders, including for an injunction, which substantially resolved the matter. 3 Also on 22 May 2009 and 9 September 2009, various other orders were made with a view to an assessment of damages and the fixing of costs. Juicy Couture has determined, however, not to proceed with a damages assessment but has sought that costs be fixed. 4 This application for costs is supported by two affidavits – that of Carolyn Louise Welsh sworn on 25 May 2009 and that of Stephen Marcus Stern sworn on 5 October 2009. Ms Chen has not filed any answering material, notwithstanding that she has had ample opportunity to do so. 5 In her affidavit, Ms Welsh stated that Juicy Couture incurred total costs up to 22 May 2009 in the sum of $12,308.75. A table exhibited to her affidavit itemised these costs. Ms Welsh further deposed that, in her experience, about 50-60% of costs were typically recovered on taxation and that, in her opinion, the amount of $6,500 was a reasonable estimate of the costs that Juicy Couture would be likely to receive on taxation. In a subsequent affidavit, Mr Stern deposed that Juicy Couture had incurred costs in a further sum since 22 May 2009 and that the amount of $310 was a reasonable estimate of the further sum that the company was likely to receive on taxation. An exhibit to his affidavit detailed how these costs were calculated. 6 Should the matter proceed to taxation, costs would be increased. In all the circumstances, it is in the parties' interest that costs now be fixed. 7 Having regard to the evidence (referred to above) and the nature and history of the proceeding, pursuant to O 62 r 4(2)(c) of the Federal Court Rules, I would fix the costs payable by Ms Chen at $6,800. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.