Fresh Express Australia Pty Ltd v MP (NT) Pty Ltd

Fresh Express Australia Pty Ltd commenced proceedings against MP (NT) Pty Ltd in the Federal Circuit and Family Court of Australia. The plaintiff sought an injunction to prevent the defendant from using its trademarks and sought damages for trademark infringement. The proceedings were ultimately dismissed by the plaintiff as they accepted that they were unable to serve the defendant within the statutory period, rendering the Court unable to exercise jurisdiction over the defendant. The central issue before the Court was the allocation of costs between the parties. The plaintiff submitted that the defendant should bear all the costs, while the defendant argued that the plaintiff should bear its own costs and half of the defendant’s costs.

The Court considered the appropriate principles for the allocation of costs where proceedings are dismissed without a determination on the merits. The Court noted that the plaintiff’s decision to discontinue the proceedings was not fault-based, and that the plaintiff had no choice but to accept that the proceedings must be dismissed. However, the Court held that the plaintiff’s acceptance of the dismissal did not automatically entitle the defendant to all the costs. The Court considered that the plaintiff had acted reasonably in seeking to serve the defendant and that the defendant had not acted reasonably in resisting the plaintiff’s application for an extension of time to serve the defendant. The Court therefore ordered that the plaintiff bear its own costs and half of the defendant’s costs. The Court held that the plaintiff was not entitled to any indemnity for costs.

The Court ordered that Fresh Express Australia Pty Ltd pay its own costs and half of the costs of MP (NT) Pty Ltd. The Court found that the plaintiff was not entitled to any indemnity for costs.