Fruit Connect Aktiebolaget v A.C.N. 620 988 936 and Anor (No.2)

Fruit Connect Aktiebolaget (the applicant) sought costs on an indemnity basis against A.C.N. 620 988 936 and another party (the respondents) in proceedings before the Supreme Court of Victoria. The dispute concerned an application for an interlocutory injunction.

The central legal issue before the Court was whether the circumstances of the case warranted an order for costs to be paid on an indemnity basis, rather than the usual party-and-party basis. This required the Court to consider whether the respondents' conduct in the litigation was so unreasonable or improper as to justify departing from the ordinary rule.

In determining this issue, his Honour Judge Street applied the principles governing indemnity costs. The Court noted that such orders are exceptional and require a high degree of unreasonableness or impropriety in the conduct of the litigation. After considering the evidence and submissions, the Court found that the respondents' conduct did not meet the threshold for an indemnity costs order. The Court reasoned that while certain aspects of the respondents' conduct might have been open to criticism, they did not rise to the level of vexatious, frivolous, or otherwise egregious behaviour that would justify imposing the significantly higher burden of indemnity costs.

Consequently, the Court ordered that the respondents pay the applicant's costs on a party-and-party basis.