Fanatics, LLC v FanFirm Pty Limited (Costs)

The case of Fanatics, LLC v FanFirm Pty Limited (Costs) involved an interlocutory costs dispute between the parties in relation to the appeal and cross-appeal. The primary dispute concerned the allocation of costs between the parties in light of the mixed outcomes in the proceedings. The matter was heard in the Federal Court of Australia, with the Court having to decide the appropriate allocation of costs based on the varying degrees of success achieved by each party.

The key legal issues the Court had to address were whether it was appropriate to apportion the costs according to the mixed success of the parties and whether the costs should follow the event. The Court considered the principle that in cases of mixed success, an unsuccessful party is not automatically entitled to costs for issues on which the successful party failed. The Court also examined the principle that costs should follow the event, which refers to the overall result of the litigation rather than individual issues. The Court needed to determine the appropriate discount to be applied to the costs of the successful party to reflect the limited success of the other party.

The Court ruled that the costs should not be apportioned on an issue-by-issue basis due to the significant interplay between the issues raised by the parties. Instead, the Court held that costs should follow the event, meaning the overall result of the litigation. The Court concluded that FanFirm was the successful party overall, despite Fanatics achieving some limited success on appeal. The Court found that a 30% discount to FanFirm’s costs was appropriate to reflect Fanatics’ limited success. The Court also remitted the issue of the costs of the first instance proceedings back to the primary judge for determination.

The final orders were that Fanatics pay 70% of FanFirm’s costs of the appeal, including the cross-appeal, with certain interlocutory costs orders to be accounted for separately. The issue of the costs of the first instance proceedings was remitted to the primary judge for determination.