Roses Only and Lush Pty Ltd v Mark Lyons Pty Ltd

[1999] FCA 1094

FEDERAL COURT OF AUSTRALIA

Roses Only & Lush Pty Ltd v Mark Lyons Pty Ltd [1999] FCA 1094

ROSES ONLY & LUSH PTY LTD trading as “ROSES ONLY” v MARK LYONS PTY LTD trading as “ROSES PLUS”

N 407 of 1999

JUDGE:  SACKVILLE J
PLACE:  SYDNEY
DATE:  12 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 407 OF 1999

BETWEEN:	ROSES ONLY & LUSH PTY LTD trading as "ROSES ONLY" Applicant
AND:	MARK LYONS PTY LTD trading as "ROSES PLUS" Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	12 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The costs of the applicant’s interlocutory application be costs in the cause.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 407 OF 1999

BETWEEN:	ROSES ONLY & LUSH PTY LTD trading as "ROSES ONLY" Applicant
AND:	MARK LYONS PTY LTD trading as "ROSES PLUS" Respondent

JUDGE:	SACKVILLE J
DATE:	12 AUGUST 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 27 July 1999, I delivered judgment on an application by the applicant for interlocutory relief.  I made an order restraining the respondent from advertising in the format adopted by what was designated as “Advertisement A”.  I refused to grant the additional relief sought by the applicant.

2. In the judgment, I indicated that my inclination was that the costs of the application should be costs in the cause.  However, I gave the parties an opportunity to make written submissions as to costs.

3. The applicant has filed written submissions, in which it seeks an order that it receive the costs of the application.  The applicant contends that it was substantially successful in obtaining the orders that it sought, albeit on an interlocutory basis.  It says that it was only on the day of the hearing that the application was amended to seek additional relief.  The unsuccessful claim for additional relief, it is said, caused no prejudice to the respondent.  The applicant argues that costs should follow the event.

4. This submission overlooks two matters.  First, the applicant did not merely add a further claim for relief on the day of the hearing.  It reformulated the relief it sought in order to overcome some difficulties with the form of orders sought in the original application.  Secondly, the applicant succeeded on part of its case, but failed on another aspect of its claim.

5. In my view, the applicant has not put forward anything warranting a departure from the tentative view expressed in the judgment.  I therefore order that the costs of the applicant’s interlocutory application be costs in the cause.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             12 August 1999

Counsel for the Applicant:	Mr A P Coleman
Solicitor for the Applicant:	Haralambis Lawyers
Counsel for the Respondent:	Mr C Stevens QC
Solicitor for the Respondent:	Central Law
Date of Submissions on Costs:	2 and 9 August 1999
Date of Judgment:	12 August 1999