FEDERAL COURT OF AUSTRALIA

Elevate Brandpartners Ltd v Hammond (No 2) [2019] FCA 1598

ORDERS

THE COURT ORDERS THAT:

1.    Each party is to pay its own costs on the applicants’ interlocutory application filed on 3 June 2019.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Delivered ex tempore)

STEWART J:

1    On 25 June 2019, I heard an interlocutory application in this matter. Orders were made and ex tempore reasons were delivered on 27 June 2019. One of those orders was to reserve the costs of the interlocutory application. This judgment now deals with those reserved costs.

2    The Court’s reasons for making the orders that were made, in which the relevant background and issues in dispute are set out, are reported at Elevate Brandpartners Ltd v Hammond [2019] FCA 1103. The same abbreviations and references are used in these reasons.

3    Subsequent to the publication of the reasons, the parties filed written submissions and agreed to the Court deciding the outstanding questions relating to costs on the basis of the written submissions.

4    The applicants submit that the costs of the application in relation to the trademark and copyright issues as well as breaches of the Australian Consumer Law (ACL) should be awarded in their favour against the first, second and fourth respondents (i.e. Ms Hammond, Mr Hammond and Dream Bandits). They submit that there should be no order as to costs on the Kylie Jenner issue.

5    The respondents submit that the second applicant (Quay) should pay Zak Hammond’s costs on an indemnity basis and that in all other respects each party should pay its own costs.

6    Each side of the case has considerations in favour of it getting some costs.

7    With regard to the issues of trademark and copyright infringement and breaches of the ACL, the applicants have been essentially successful by procuring the undertakings that were proffered and that were accepted by the Court. However, those undertakings were proffered on an express “no admissions” basis in order to avoid the need for the Court to make findings on the applicants’ entitlement to relief and the Court made no such findings. It would defeat the utility of the undertakings for the Court to now have to make findings with regard to the entitlement to relief merely in order to decide the costs questions.

8    The applicants complain, with some justification, that the undertakings were proffered only at the last minute, and even then required further amendment in order to meet the applicants’ case. But on the other hand, it was signalled early on by the respondents in correspondence that they were prepared to offer undertakings and the applicants do not appear to have constructively engaged in a dialogue with regard to what wording would satisfy them.

9    Nevertheless, on balance, the applicants have a stronger claim for costs in relation to this part of the case than the respondents have an argument against any costs being awarded against them.

10    With regard to the Kylie Jenner issue, the applicants squarely lost and the respondents won. The latter accordingly have a good case for these costs. Against that are considerations that this was only a relatively small part of the case and it is undesirable to order costs in respect of only part of a case because of the very real difficulty in separating those costs out from the rest of the costs for the purposes of assessment.

11    Zac Hammond has a clear case for his costs, but those costs are unlikely to be significant in view of the fact that the respondents have always been jointly represented. Moreover, it would be difficult to separate out Zac Hammond’s costs from the other costs necessarily incurred by the respondents.

12    Taking all those considerations together, as well as the various submissions made by the parties in their written submissions, I am satisfied that justice is best served by ordering that each party should bear its own costs on the interlocutory application. Such an order reflects the overall balance of outcome on the interlocutory application, and it avoids the undesirable expense of having to assess costs on different parts of the case for different parties.

Associate:

Dated:    25 September 2019