Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd (No 5) [2016] FCA 983

FEDERAL COURT OF AUSTRALIA

Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd (No 5) [2016] FCA 983 File numbers: SAD 224 of 2012 WAD 167 of 2013

Judge: MCKERRACHER J

Date of judgment: 22 August 2016

Catchwords: INTELLECTUAL PROPERTY – determination of final orders – rectification of the Register of Trade Marks where application to the Court partially successful – relatively small amount of trial devoted to issue on which applicant successful – impact of respondent's delay in opposing proceedings upon final orders – impact of respondent's delay in seeking leave to rely on evidence filed in associated proceeding – impact of vacation of the initial trial dates – determination of substance of apposite costs orders INTELLECTUAL PROPERTY – determination of final orders – rectification of the Register of Trade Marks where associated application to the Court successful and cross-claim dismissed – whether respondent should be restrained from ongoing activity in the nature of the impugned conduct – whether respondent should have to take certain positive steps to ensure that the impugned conduct ceases – availability of laches defence in answer to a legal claim – impact of applicant's delay in commencing proceedings upon the grant of an injunction – where respondent claims prejudice arising from the conduct which infringes the impugned rights CONSUMER LAW – misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law – passing off – breach of franchise agreement – relevance of finding as to repudiation of franchise agreement – where no evidence of actual confusion adduced at the trial – where no evidence of the actual quantum of any damage adduced at the trial