Caporaso Pty Ltd v Mercato Centrale Australia Pty Ltd (Costs)

In the case of Caporaso Pty Ltd v Mercato Centrale Australia Pty Ltd, the respondents appealed against a judgment that dismissed their cross-claim, while the appellants cross-appealed against a judgment that dismissed their passing off and Australian Consumer Law claims. The appeal was dismissed, and the cross-appeal was allowed in part, resulting in a variation of the orders made in the primary judgment. The court was tasked with determining the appropriate costs order for both the trial and the appeal. The respondents argued for an indemnity costs order, while the appellants suggested a lump sum award. The court considered the offers of compromise made by both parties, the outcome of the appeal, and the relevant legal principles.

The court held that the costs of the trial should not be apportioned as proposed by the appellants because the cross-claim was not entirely unsuccessful. The court also determined that the appeal's outcome warranted a lump sum award for both the trial and the appeal costs, rather than an indemnity costs order. The court took into account the offers of compromise made by both parties, the nature of the proceedings, and the fact that the respondents had made offers to compromise both the trial and the appeal. The court believed that a lump sum award was appropriate, considering the overall outcome and the parties' conduct throughout the proceedings.

The court ordered that the costs of the trial and the appeal be awarded in a lump sum, and that a Registrar determine the amount of the lump sum in such manner as he or she sees fit, including on the papers if considered appropriate. The court also directed that the question of whether the costs of the trial should be apportioned be remitted to the primary judge for determination. The court's decision balanced the need for a fair and reasonable costs order with the conduct of the parties throughout the proceedings.

The court's final orders included varying the costs orders made in the primary judgment and directing that a Registrar determine the amount of the lump sum costs award. The court also remitted the question of whether the costs of the trial should be apportioned to the primary judge for determination. These orders reflected the court's consideration of the parties' offers of compromise, the outcome of the appeal, and the relevant legal principles.