FEDERAL COURT OF AUSTRALIA
Thomas v Monsoon Group Australia Pty Ltd (Costs) [2025] FCA 1106
File number(s): VID 396 of 2025 Judgment of: HESPE J Date of judgment: 10 September 2025 Catchwords: COSTS – costs of proceeding – appeal from Registrar of Trade Marks allowed – where submitting notice filed – where appeal was filed out of time – costs of application before the Registrar of Trade Marks Legislation: Federal Court of Australia Act 1976 (Cth)
Trade Marks Act 1995 (Cth)
Intellectual Property Legislation Amendment (Fee Amounts and Other Measures) Regulations 2024 (Cth)
Trade Marks Regulations 1995 (Cth)
Cases cited: Commissioner of Taxation v Warner (No 2) [2015] FCA 1281; (2015) 244 FCR 498
Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) [2014] NSWCA 317; (2014) 86 NSWLR 645
Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164
Nyman v Valmas [1997] NSWCA 235
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Somers Enterprises Australia Pty Ltd v Basefun Pty Ltd (No 2) [2025] FCA 418
Thomas v Monsoon Group Pty Ltd [2025] FCA 911
UCP Gen Pharma AG v Mesoblast, Inc (No 2) [2012] FCA 500
Division: General Division Registry: Victoria National Practice Area: Intellectual Property Sub-area: Trade Marks Number of paragraphs: 13 Date of last submission/s: 4 September 2025 Date of hearing: Determined on the papers Counsel for the Applicant: Mr AN McRobert Solicitor for the Applicant: Wrays Counsel for the Respondent: Ms SL Stewart Solicitor for the Respondent: LegalVision ORDERS
VID 396 of 2025 BETWEEN: JAIMON THOMAS
Applicant
AND: MONSOON GROUP AUSTRALIA PTY LTD ACN 618 479 977
Respondent
ORDER MADE BY:
HESPE J
DATE OF ORDER:
10 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.There be no order as to costs in relation to the appeal proceeding.
2.The decision as to costs made by the delegate of the Registrar of Trade Marks be varied and the Respondent pay the Applicant’s costs of the proceeding before the delegate of the Registrar of Trade Marks fixed in the sum of $1,625.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HESPE J:
INTRODUCTION
By orders made on 11 August 2025, the Court granted the applicant an extension of time in which to file a notice of appeal from a decision of the delegate of the Registrar of Trade Marks to remove the applicant’s trade mark from the Register of Trade Marks for non-use. The respondent earlier filed a submitting notice, save as to costs, pursuant to r 12.01 of the Federal Court Rules 2011 (Cth). The Court was satisfied that there was no self-evident reason why the orders sought by the applicant should not be made and the appeal was allowed without determining the merits of the applicant’s appeal: Thomas v Monsoon Group Pty Ltd [2025] FCA 911.
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- Case
- [2025] FCA 1106
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant was entitled to costs for the appeal proceeding and whether the appeal was indeed filed out of time. Additionally, the court needed to consider the appropriateness of the costs awarded by the Registrar of Trade Marks. The primary focus was on the procedural aspects of the appeal, specifically the timeliness of the notice of appeal and the subsequent costs implications.
The court found that while the notice of appeal was indeed filed out of time, the appeal was not dismissed on those grounds alone. Instead, the court held that the appeal was valid and should be considered on its merits. The Registrar of Trade Marks had awarded costs in favour of the applicant, but the appeal court found that the decision regarding costs should be varied. The court concluded that the respondent should bear the costs of the proceeding before the Registrar of Trade Marks, amounting to $1,625. The court determined that no order should be made as to the costs in relation to the appeal proceeding itself.
The court's decision resulted in a variation of the costs order made by the Registrar of Trade Marks. The respondent was ordered to pay the applicant’s costs of the proceeding before the delegate of the Registrar of Trade Marks in the specified amount. No order was made for costs in relation to the appeal proceeding.
Orders
Orders of the court
1. There be no order as to costs in relation to the appeal proceeding.
2. The decision as to costs made by the delegate of the Registrar of Trade Marks be varied and the Respondent pay the Applicant’s costs of the proceeding before the delegate of the Registrar of Trade Marks fixed in the sum of $1,625.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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