Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited (No 2)

The case of Kosciuszko Thredbo Pty Limited v ThredboNet Marketing Pty Limited (No 2) involved a dispute between two companies in the context of alleged misleading or deceptive conduct under the Competition and Consumer Act 2010. The primary judgment, delivered on 11 June 2013, had already established that the respondents had engaged in misleading or deceptive conduct by using specific phrases in connection with their business operations. The unresolved issues pertained to the precise nature of the declarations and orders to be made and the allocation of costs. The applicants sought to ensure that the respondents were restrained from using certain phrases in a manner that would be apparent to consumers, while the respondents argued for the inclusion of qualifying phrases that would allow limited use of these terms in metatags.

The legal issues before the court were centered on the interpretation of the primary judgment and the appropriate scope of the restraint order to be imposed on the respondents. The key issue was whether the contentious phrases, "in circumstances where such use was apparent to consumers" and "in a way which is apparent to consumers," should be included in the declarations and orders. The applicants argued that such inclusion would permit the continued use of the contested phrases in metatags, which are not visible to consumers, thereby undermining the purpose of the restraint order. The respondents contended that the inclusion of these phrases was necessary to clarify the scope of the restraint and to ensure that the order was not overly broad.

In its reasoning, the court considered the findings of the primary judgment and the arguments presented by both parties. The court ultimately decided against including the contentious phrases in the declarations and orders. The court found that the applicants' concerns about the potential for continued use of the phrases in metatags were valid and that such use could still lead to consumer confusion. By excluding the contentious phrases, the court ensured that the restraint order was sufficiently clear and effective in preventing the misleading or deceptive conduct identified in the primary judgment. The court also addressed the issue of costs, ordering that the applicants pay 85% of the respondents' costs of the proceedings.

The final orders of the court were that the respondents and their affiliates be restrained from using the specified phrases in a way that is apparent to consumers, including in any Universal Record Locators, online content, email links, confirmation notifications, advertising, or marketing material. The proceedings were otherwise dismissed, and the applicants were ordered to pay 85% of the respondents' costs.