Jewelsnloo Pty Ltd v Sengos (No 3)

Jewelsnloo Pty Ltd, trading as Jewelsnloo.com, sued Sengos and others over alleged passing off and other intellectual property infringements. The Federal Court of Australia heard the case and was required to determine the apportionment of costs between the parties. The plaintiff was successful on one claim but had all other claims dismissed. The court found that the defendants were entitled to 75% of the costs of the proceedings against them, with a 25% reduction to account for the plaintiff's costs in obtaining interlocutory and permanent injunctions for passing off. The court held that the director of the plaintiff company was personally liable for the costs payable by the plaintiff to the first, fourth, and fifth defendants due to an undertaking given by the director.

Further, the court addressed the issue of indemnity costs and whether there was a valid Calderbank offer from the second and third defendants. The court held that the offer was reasonable and made at a relatively early stage of the proceedings. The plaintiff's rejection of the offer was considered, and the court found that none of the vitiating factors identified by the plaintiff justified the rejection. Consequently, the plaintiff was ordered to pay the defendants' ordinary costs up to the date of the Calderbank offer and thereafter on the indemnity basis. The court's decision highlights the importance of Calderbank offers in assessing costs in intellectual property disputes.