Quach v Registrar of Trade Marks (No 2)

Quach v Registrar of Trade Marks (No 2) [2026] FCA 57 is a Federal Court decision about a late attempted appeal from a trade mark opposition outcome. The court was not conducting a full rehearing of the branding dispute. It was deciding whether Dr Michael Quach should be given extra time under r 34.25 of the Federal Court Rules 2011 (Cth) to file an appeal from a delegate’s decision made on 5 August 2025.

The extension application failed. Derrington J held that Dr Quach had not given a sufficient explanation for the delay, that the proposed appeal had no prospects of success, and that he personally lacked standing because the opponent before the Registrar was QE Family Pty Ltd, not Dr Quach. The court also found that allowing the matter to continue would likely cause some detriment to the Owners Corporation and ordered Dr Quach to pay the second respondent’s costs of the application.

For business owners, this is a procedure-heavy case with a very practical message. Trade mark disputes are not only about who used a brand first or who should own it. They are also about filing deadlines, the identity of the correct legal party, service requirements and whether the appeal grounds are properly framed. If those basics are wrong, the court may never reach the underlying commercial argument.

The underlying trade mark was “Byron Bay Beachfront Apartments” with a stylised turtle. The application was filed on 21 December 2023 by Medcraft Pty Ltd through Mr Greg Medcraft under s 27 of the Trade Marks Act 1995 (Cth). The dispute then moved into opposition proceedings.

On 27 May 2024, QE Family Pty Ltd filed a notice of opposition under s 52. On 26 June 2024, it filed a statement of grounds and particulars, which was later rectified. Dr Quach said he was a director and shareholder of QE Family, but the company itself was the formal opponent.

Shortly after the opposition was filed, the ownership position changed. On 5 June 2024, Medcraft Pty Ltd assigned its interest in the mark to the Proprietors of Strata Plan 48462, referred to in the judgment as the Owners Corporation. On 31 July 2024, the Owners Corporation filed a notice of intention to defend under s 52A.

On 5 May 2025, the Owners Corporation requested that the opposition be determined without a hearing. The judgment records that QE Family did not appear to object to that course. On 5 August 2025, the delegate decided the matter on the papers, rejected QE Family’s objections and determined that the mark should move to registration in the name of the Owners Corporation.

The delegate’s decision dealt with more than one issue. The judgment notes, without going into full detail, that one issue concerned whether the Owners Corporation could own a trade mark at all. The delegate referred to s 106(1) of the Strata Schemes Management Act 2015 (NSW) and accepted that an owners corporation can hold and manage personal property on behalf of the owners corporation, so it could own the trade mark. The delegate also determined, on the material before her, that the true owner of the mark was the Owners Corporation.

The next step is where the procedural problem arose. Instead of QE Family filing an appeal within the required period, Dr Quach personally filed an application on 1 September 2025 for an extension of time to appeal under r 34.25. That was 27 days after the delegate’s decision, outside the 21-day period in r 34.24. The application was served on the Registrar on 19 September 2025, but not initially on the Owners Corporation. In later case management steps, the Owners Corporation was joined to the proceeding.

The court also recorded that Dr Quach did not comply with orders requiring him to file and serve submissions 14 days before the hearing. He eventually filed a one-page document headed “Submissions” on 22 January, but it gave little detail about the arguments he wanted to advance. That context mattered because the court was being asked to exercise a discretion and expected a clear explanation for delay and a coherent proposed appeal.

The judgment is useful because it sets out the practical framework for trade mark appeals to the Federal Court. Under s 56 of the Trade Marks Act, an opponent may appeal to the Federal Court from a decision of the Registrar made under s 55. The definition of “opponent” in s 6 mattered a great deal here. It means, relevantly, the person who filed the notice of opposition under s 52, or a person in whose name the notice is taken to have been filed if s 53 applies.

The procedural rules are in Div 34.3 of the Federal Court Rules. Rule 34.24 says that a party who wants to appeal from a decision of the Commissioner must, within 21 days of the date of the decision, file a notice of appeal. The notice must state the decision and date, whether the appeal is from the whole or part of the decision, the orders sought, the grounds relied on and particulars of each ground. It must then be served on the Commissioner and each other party within 5 days after filing.

For trade mark matters, the word “Commissioner” does not mean there is some different officeholder involved. Rule 34.21 defines “Commissioner” for a proceeding under the Trade Marks Act as the person holding the office of Registrar under that Act. This point became important because Dr Quach argued that the 21-day rule did not apply to Trade Marks Act appeals because the rule referred to a “Commissioner” rather than a “Registrar”. The court rejected that argument as plainly wrong.

Rule 34.25 allows a person to apply for an extension of time to file the notice of appeal. The application can be made during or after the 21-day period, but it must be accompanied by an affidavit explaining the facts relied on, why the notice was not filed in time, the nature of the appeal and the questions involved, as well as a draft notice of appeal that complies with r 34.24.

The court referred to earlier authority showing that the listed matters in r 34.25 do not exhaust the relevant considerations. The judge identified the key factors in this case as the explanation for delay, any prejudice to the Owners Corporation, and the merits of the proposed appeal. The judgment also referred to the broader discretionary factors commonly considered in extension applications, including the length of delay, whether the applicant is personally blameless, whether the respondent was alerted, alternative avenues for relief and any public interest considerations.

The court also emphasised the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth), namely the just resolution of disputes as quickly, inexpensively and efficiently as possible. That matters in practice because a court is less likely to extend time where the proposed appeal appears futile, procedurally defective or likely to generate unnecessary cost and delay.

The court dismissed the extension application for three main reasons.

First, the explanation for delay was not satisfactory. Dr Quach said he was unaware of the 21-day limit, or alternatively that the 21-day limit did not apply to Trade Marks Act appeals, or alternatively that he was flustered by the wording of the Rules because he was self-represented. The court found these explanations weak. The delegate’s letter communicating the decision clearly stated that any appeal should be made within 21 days. The court also said Dr Quach’s own submissions suggested he was aware of the 21-day period but had adopted his own incorrect interpretation of the Rules.

The argument about “Commissioner” and “Registrar” failed decisively. Derrington J pointed to r 34.21, which expressly defines “Commissioner” in Trade Marks Act proceedings as the person holding the office of Registrar. The court said Div 34.3 simply uses a compendious term across different intellectual property statutes and does not alter the Trade Marks Act in the way Dr Quach suggested.

The court gave only limited weight to Dr Quach’s self-represented status. Although some leniency can be given to a non-lawyer, the judge noted Dr Quach’s familiarity with litigation and referred to earlier judicial observations that he was a familiar self-represented litigant. In those circumstances, his lack of representation did not carry much force as an explanation for missing the deadline.

Second, the court accepted that the Owners Corporation would suffer some detriment if time were extended. The delay itself was short, only six days beyond the 21-day period, so the prejudice was not based simply on elapsed time. Instead, the court focused on the history of disputation involving the Owners Corporation, Dr Quach, QE Family and possibly his wife, who owned a unit in the development. The judge considered there was a real risk that allowing the appeal to proceed would draw the Owners Corporation into protracted, misdirected and meritless litigation, causing inconvenience, expense and delay and potentially affecting the operation of its business.

Third, and most importantly, the proposed appeal lacked merit. The draft notice of appeal did not set out substantive intelligible grounds. It made broad assertions that the Registrar acted without statutory authority and that the decision was invalid, but those assertions were unsupported by particulars. The affidavit material did not explain the alleged absence of power. The court said it was not possible to work out exactly what the grounds meant or what legal basis they had.

There was also an insurmountable standing problem. Under s 56, only an “opponent” can appeal. QE Family was the company that filed the notice of opposition. Dr Quach was not the opponent before the Registrar. The court held that only QE Family had standing to bring an appeal. Dr Quach tried to rely on r 8.01 and then r 1.40 of the Federal Court Rules, arguing in substance that he was an interested person or had a sufficient interest because he was a director and shareholder of QE Family. The court rejected that. A company is a separate legal entity, and its directors or shareholders do not automatically acquire its rights to litigate. The judge said that proposition was entirely wrong.

The court also observed that Dr Quach appeared reluctant to make QE Family a party, and suggested that may have been because of the risk of costs orders against the company if the appeal failed. Whether or not that was the reason, the result was the same: Dr Quach had sought to intervene in proceedings in which he had no sufficient interest, was not a party before the Registrar, and had no entitlement to appeal. That meant the proposed appeal was doomed to fail.

The judgment also contains a practical lesson about litigation conduct. During the hearing, Dr Quach raised a new argument that Mr Cholakos, who appeared for the Owners Corporation, lacked authority to do so. The court was critical of the way that issue was raised. It had not been flagged before the hearing, had not been raised in written submissions, and had not been telegraphed to the Owners Corporation or Mr Cholakos.

Derrington J stressed that written submissions are now a critical part of the administration of justice because they allow the parties and the court to identify and address the issues in advance. If the authority point had been raised earlier, the Owners Corporation could readily have filed evidence dealing with it.

In fact, there was already affidavit material from Mr Cholakos stating that he was authorised to represent the Owners Corporation, and no earlier objection had been taken. The court allowed him to give oral evidence and produce a written resolution dated 2 December 2025. That resolution ratified approval for Greg Medcraft, Bronwyn Morris and Paul Cholakos to represent the Owners Corporation in the Federal Court proceeding, including giving instructions, sworn statements, evidence and engaging with legal representatives if required.

The court found that authority clear enough and rejected the challenge. It also rejected Dr Quach’s suggestion that Mr Cholakos may not have been properly authorised on earlier occasions, including on the joinder application. The judge described the authority challenge as a belated, ambush-style attempt to derail the matter.

For businesses, this part of the case is a reminder that courts expect procedural objections to be raised properly and in time. If you want to challenge authority, service, standing or representation, do it early and with a clear basis. Leaving it until the hearing can damage credibility and may simply fail if the other side can cure the point immediately.

This case is best read as a warning about process discipline in intellectual property disputes. It does not create a broad new rule about trade mark ownership. It shows how quickly a case can turn on the identity of the legal party, the wording of the Rules, and the quality of the documents filed.

The first practical point is entity discipline. Many businesses operate through a mix of individuals, companies, trusts and related entities. In day-to-day trading, those distinctions are often blurred. In litigation, they are not. If a company filed the opposition, the company is generally the one that must appeal. A director or shareholder cannot usually substitute themselves because they are commercially involved or feel personally affected.

The second point is deadline discipline. The 21-day period in r 34.24 is short. If there is any possibility of an appeal, the business should identify the date of the decision immediately, calculate the deadline, and decide who the appellant must be. If more time is needed, the extension application should be prepared with a proper affidavit and a draft notice of appeal that actually explains the legal grounds.

The third point is drafting discipline. A proposed appeal cannot rely on broad statements that a decision was invalid or made without power. The court expects intelligible grounds and particulars. If the grounds are unclear, the court may conclude the appeal has no real prospects and refuse an extension even where the delay is relatively short.

The fourth point is service and party management. The Rules require service on the Commissioner and each other party. Here, the application was served on the Registrar but not initially on the Owners Corporation, and the Owners Corporation later had to be joined. That sort of misstep can complicate the proceeding and weaken the applicant’s position.

The fifth point is costs. Even where the respondent is self-represented, the court may still order the unsuccessful party to pay recoverable disbursements such as filing fees. The judgment confirms that self-represented parties do not recover lawyers’ fees for their own time, but they may still recover reasonable out-of-pocket costs.

In practical terms, if your business receives an adverse trade mark decision, work through a short triage process before doing anything else.

The judgment was given on 29 January 2026 and the reasons were published on 5 February 2026. The orders dismissed the application lodged on 1 September 2025 and required Dr Quach to pay the second respondent’s costs of the application.

The decision should be read for what it is: a procedural ruling on an extension of time application and standing. It is not a full appellate determination of the underlying trade mark opposition issues. The court deliberately said there was no need to consider the delegate’s substantive decision in great detail for present purposes.

That means businesses should be careful not to overread the case as a broad authority on all questions about owners corporations owning trade marks, true ownership of the mark, or the merits of the original opposition. The strongest value of the case is procedural. It shows how the Federal Court approaches late trade mark appeals, weak grounds, and attempts by the wrong party to litigate.

This page is based on the Federal Court judgment in Quach v Registrar of Trade Marks (No 2) [2026] FCA 57. The judgment records the relevant procedural history, the statutory provisions considered, the reasons for refusing the extension of time, the rejection of the standing arguments, the treatment of the late authority challenge, and the costs order.

The judgment also notes that these were amended and revised reasons published after ex tempore reasons delivered on 29 January 2026, but that the substance was not changed. Readers looking for the underlying merits of the trade mark opposition should also consider the delegate’s decision and any related proceedings, because this judgment itself is focused on whether an out-of-time appeal should be allowed to proceed.