Elevate Brandpartners Ltd v Hammond (No 2)

FEDERAL COURT OF AUSTRALIA

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

File number:	NSD 488 of 2019
Judge:	STEWART J
Date of judgment:	25 September 2019
Catchwords:	COSTS – costs orders – interlocutory hearing – different parties enjoying success in different parts of the case and to differing degrees – each party pays their own costs
Legislation:	Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth))
Cases cited:	Elevate Brandpartners Ltd v Hammond [2019] FCA 1103
Date of last submissions:	15 August 2019
Registry:	New South Wales
Division	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Plaintiffs:	S Dawson SC and M Cairns
Solicitor for the Plaintiffs:	HWL Ebsworth
Counsel for the Defendants:	R Newlinds SC and D G Healey
Solicitor for the Defendants:	Gadens

ORDERS

NSD 488 of 2019

BETWEEN:

ELEVATE BRANDPARTNERS LTD (UK COMPANY NUMBER 10159717)

First Applicant

QUAYEYEWARE PTY LTD (ACN 118 078 274)

Second Applicant

AND:

LINDA HAMMOND

First Respondent

ALLEN JASON RICHARD HAMMOND

Second Respondent

ZAK RILEY JOHN HAMMOND

Third Respondent

DREAM BANDITS AUSTRALIA PTY LTD (ACN 630 671 206)
Fourth Respondent

JUDGE:	STEWART J
DATE OF ORDER:	25 SEPTEMBER 2019

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,…