Derrimut Health & Fitness Pty Ltd v Revival 24:7 Gym Pty Ltd (No 2)

In the matter of Derrimut Health & Fitness Pty Ltd v Revival 24:7 Gym Pty Ltd (No 2), the Federal Court addressed an application for default judgment and costs by Derrimut Health & Fitness Pty Ltd (Derrimut) against Revival 24:7 Gym Pty Ltd (Revival). Derrimut sought relief for Revival’s unauthorised use of photographs and trademarks associated with Derrimut’s business. The dispute centred on whether the court should grant Derrimut’s application for default judgment and costs, given Revival's failure to file a defence or a notice of address for service.

The court considered several legal issues, including whether it should grant Derrimut's application for default judgment, as Revival had defaulted by not responding to the proceedings. Additionally, the court assessed the appropriate form and quantum of costs to award. The court had to determine whether a lump-sum costs order was appropriate and if indemnity costs were warranted given Revival’s conduct.

The court exercised its discretion to grant judgment in default in favour of Derrimut, concluding that Derrimut was entitled to the relief claimed. The court was satisfied that Derrimut had a legitimate claim against Revival, and that Revival’s default warranted the entry of judgment in Derrimut's favour. Regarding costs, the court made a lump-sum costs order but declined to make an indemnity costs order. The court found that Revival’s conduct did not warrant an indemnity costs order but was sufficient to justify awarding costs on a party-and-party basis. The final orders included mandatory injunctions against Revival from using Derrimut’s photographs and trademarks, and a direction for Revival to pay Derrimut's costs.