Aussie Red Equipment Pty Ltd v Antsent Pty Ltd

FEDERAL COURT OF AUSTRALIA

Aussie Red Equipment Pty Ltd v Antsent Pty Ltd [2001] FCA 1641

COSTS – power to order costs under s 43 of the Federal Court of Australia Act 1976 (Cth) – whether respondents should be ordered to pay the applicants’ costs – where proceedings resolved by consent save for the issue of costs – where consent orders not expressed to be ‘without any admissions to liability’ – where final consent orders closely reflected relief initially sort by the applicants – where respondents failed to follow directions.

Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194

referred to

Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia;

Ex parte Lai Qin (1997) 186 CLR 622 referred to

ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270 referred to

AUSSIE RED EQUIPMENT PTY LTD (ACN 003 224 020) AND AQUA FORTIS AUSTRALIA PTY LTD (ACN 080 526 601) v ANTSENT PTY LTD (ACN 003 751 344) AND STEVEN DARYL POWER

N 1366 of 2000

MOORE J
22 NOVEMBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1366 OF 2000

BETWEEN:	AUSSIE RED EQUIPMENT PTY LTD (ACN 003 224 020) FIRST APPLICANT
AQUA FORTIS AUSTRALIA PTY LTD (ACN 080 526 601) SECOND APPLICANT
AND:	ANTSENT PTY LTD (ACN 003 751 344) FIRST RESPONDENT
STEVEN DARYL POWER SECOND RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	22 NOVEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first and second respondent pay the applicants’ costs in the sum of $10,000.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1366 OF 2000

BETWEEN:	AUSSIE RED EQUIPMENT PTY LTD (ACN 003 224 020) FIRST APPLICANT
AQUA FORTIS AUSTRALIA PTY LTD (ACN 080 526 601) SECOND APPLICANT
AND:	ANTSENT PTY LTD (ACN 003 751 344) FIRST RESPONDENT
STEVEN DARYL POWER SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	22 NOVEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. On 20 December 2000 the applicants commenced proceedings in this Court against Antsent Pty Ltd (“the first respondent”) and the director of the first respondent responsible for its day to day activities, Mr Steven Power (“the second respondent”). The statement of claim alleged that the respondents had breached the Trade Practices Act 1974 (Cth) (“TP Act”), engaged in passing off and infringed the applicants’ registered trade mark. Without the matter proceeding to hearing, the parties reached agreement on the substantive issues raised in the application and on 20 June 2001 consent orders were entered which effectively disposed of the matter. However, the issue of costs as between the applicants and the respondents remains unresolved.

   History of the proceedings

2. The following appears not to be in issue.  The applicants specialise in providing and marketing cleaning services, in particular a high pressure water cleaning system designed for hard surfaces which is registered under the “AQUA…