Trafalgar Group Pty Ltd v Boss Fire & Safety Pty Ltd (Costs)

This decision is about costs, not the full merits of the trade mark dispute. The Federal Court had already decided the substantive appeal on 4 March 2026 in Trafalgar Group Pty Ltd v Boss Fire & Safety Pty Ltd [2026] FCA 202. In that earlier judgment, Needham J allowed Trafalgar Group’s appeal against a decision of a delegate of the Registrar of Trade Marks and dismissed a cancellation action brought by Boss Fire with costs.

The present judgment, Trafalgar Group Pty Ltd v Boss Fire & Safety Pty Ltd (Costs) [2026] FCA 366, deals with what happened next. Once the appeal result was known, the parties still had to argue about the legal bill. That included whether Trafalgar Group, as the overall successful party, should get all of its costs, whether those costs should be reduced because it had not succeeded on every issue, and whether a late settlement offer justified indemnity costs.

The judgment also shows that the underlying dispute involved the FYRE Device Mark and a non-use appeal about the goods for which the mark should remain registered. During the hearing, Trafalgar Group recognised that it could not establish use for the whole range of goods covered by the registration. That became relevant to the later costs fight because Boss Fire had prepared for the broader case and cross-examined Trafalgar Group’s witness on those issues.

Trafalgar Group asked for three things. First, it wanted Boss Fire to pay its costs of the non-use appeal. Second, it wanted the earlier costs order made by the delegate of the Registrar of Trade Marks to be set aside and replaced with a costs order in its favour. Third, it wanted indemnity costs from 4 pm on 18 July 2025, relying on a Calderbank offer made shortly before the hearing.

Boss Fire accepted the general starting point that costs should follow the event. But it argued that Trafalgar Group should not get everything it wanted. Boss Fire sought a 10% discount to Trafalgar Group’s costs. It said that discount was justified because Trafalgar Group did not seek the entirety of its original relief in relation to the registered goods, was unsuccessful on Ground 2, and only late in the hearing recognised that the appeal could succeed only for some of the goods.

Boss Fire also opposed indemnity costs. It argued that rejecting the Calderbank offer was not unreasonable because the offer was open for only a very short time and because Trafalgar Group had retreated from the full suite of goods originally in issue. So the Court had to decide not just who won overall, but what kind of costs order was fair in light of the way the case had been run.

The Court approached the matter as an exercise of the broad costs discretion under section 43 of the Federal Court of Australia Act 1976 (Cth). Needham J referred to the need for a broad evaluative judgment about what justice requires. The Court also referred to Calderbank principles, which can support indemnity costs where a party unreasonably rejects a reasonable settlement offer and then fails to improve its position after the hearing.

There were really two separate questions. The first was whether Trafalgar Group should receive its costs of the appeal and the earlier proceeding before the Registrar’s delegate without any discount. That required the Court to consider the significance of Trafalgar Group’s late recognition that it could not prove use across the whole range of goods, and the fact that Boss Fire had succeeded on Ground 2 even though it lost overall.

The second question was whether the Calderbank offer justified indemnity costs. The offer was made by letter dated 17 July 2025 and was open until 4 pm on 18 July 2025, a Friday. The hearing was due to begin on Monday, 21 July 2025. The Court therefore had to decide whether an offer open for less than 28 hours, on the last business day before a three-day hearing, was a reasonable offer such that rejecting it became unreasonable.

Needham J held that Trafalgar Group should have its costs of both the non-use appeal and the proceeding before the Registrar. The Court rejected Boss Fire’s request for a 10% discount. Although some time had been spent on Ground 2, and although Trafalgar Group only late in the hearing recognised that use of the FYRE Device Mark could not be established across the entire range of goods, the Court did not consider those matters sufficient to reduce the successful party’s costs.

The Court said these were the kinds of issues that can arise in substantial commercial litigation. It accepted that Trafalgar Group had raised and then retreated from some matters, but did not regard those matters as frivolously brought. Nor did the Court consider that Trafalgar Group had run the proceedings in a way that needlessly increased costs. Boss Fire’s success on Ground 2 did not change the outcome of the proceedings, so it did not justify depriving Trafalgar Group of part of its costs.

On indemnity costs, however, Trafalgar Group failed. The Court held that it was not unreasonable for Boss Fire to reject the Calderbank offer. The key reason was timing. The offer was open for less than 28 hours and only during the last business day before a three-day hearing. The Court accepted that the parties and their legal representatives were in a position to assess their prospects, but still held that an offer open only for that short period in those circumstances was not a reasonable offer. As a result, the Court refused to impose indemnity costs and instead ordered ordinary party-party costs.

The formal orders are important. The Court ordered Boss Fire to pay Trafalgar Group’s costs of the appeal on the party-party basis, as agreed or taxed. It also set aside the costs order made by the delegate of the Registrar of Trade Marks on 2 July 2024 in [2024] ATMO 122 and ordered Boss Fire to pay Trafalgar Group’s costs before the delegate, to be assessed under Schedule 8 of the Trade Marks Regulations 1995 (Cth).

The Court also varied an earlier order made on 4 March 2026 so that the Registrar of Trade Marks would amend the specification of Australian Trade Mark Registration No. 1313971 by removing a listed group of goods across Classes 1, 6, 17 and 19. The judgment records that this was done to give effect to the earlier reasons. Trafalgar Group was also ordered to provide a copy of the orders to the Registrar forthwith.

That part of the judgment matters because it confirms that the costs ruling was not happening in isolation. It sat alongside the practical implementation of the earlier merits result, including amendment of the trade mark specification so that the registration remained only for a subset of goods.

For business owners, the first lesson is about evidence of use. The judgment shows that Trafalgar Group ultimately could not establish use of the FYRE Device Mark across the whole range of goods originally covered. Even though it still won overall, that late recognition became a live costs issue. If your registration covers a broad specification, you should expect the other side to test whether you can prove use for each part that matters.

The second lesson is about partial success. A party can lose some arguments and still recover its ordinary costs if it wins the real contest. Here, Boss Fire succeeded on Ground 2, but that success did not change the outcome. The Court treated that as part of the ordinary reality of commercial litigation rather than a reason to carve up costs. That does not mean businesses should run weak points casually. It means the Court will look at substance, not just scorekeeping.

The third lesson is about settlement timing. If you want to rely on a Calderbank offer later, the other side needs a fair opportunity to assess it. This case strongly suggests that an offer made on the Thursday before a Monday hearing, and left open only until Friday afternoon, may be too compressed to support indemnity costs. The Court specifically relied on both the short period the offer was open and the fact that it covered only the last business day before a three-day hearing.

In practical terms, businesses should review the scope of their registrations early, gather evidence of use before the hearing is close, and make serious settlement offers with enough time for proper consideration. A late offer may still be commercially useful, but it may not improve your costs position in court.

The costs judgment was delivered on 1 April 2026 and was determined on the papers. It followed the earlier merits judgment delivered on 4 March 2026. The Calderbank offer relied on by Trafalgar Group was dated 17 July 2025 and remained open until 4 pm on 18 July 2025, with the hearing due to begin on 21 July 2025.

The judgment also refers back to the delegate’s decision in Trafalgar Group Pty Ltd v Boss Fire & Safety Pty Ltd [2024] ATMO 122 and records that the delegate’s costs order made on 2 July 2024 was set aside. The Court then replaced it with a costs order in Trafalgar Group’s favour under Schedule 8 of the Trade Marks Regulations 1995 (Cth).

This page explains the Federal Court’s published costs reasons in Trafalgar Group Pty Ltd v Boss Fire & Safety Pty Ltd (Costs) [2026] FCA 366. The judgment itself makes clear that it follows an earlier substantive decision, Trafalgar Group Pty Ltd v Boss Fire & Safety Pty Ltd [2026] FCA 202, and an earlier Trade Marks Office decision, [2024] ATMO 122.

Because this is a costs judgment, it does not fully set out the underlying commercial story or all of the substantive trade mark issues argued on the appeal. Readers looking for the full merits reasoning should also consult the earlier 2026 Federal Court judgment.