D15.3 Discretionary considerations in Accepting the Offer

Date Published

Where a third party makes submissions, or requests to be heard, the Registrar will need to decide whether or not to accept the offer to surrender. The Act provides no relevant criteria. Rather, the decision needs to be based on a consideration of the equitable interests of the parties. In this regard, the nature of the decision is similar to that under s 29 of the Designs Act 2003 (Cth) – see D13.2.1.

As a general proposition, the Registrar will not accept an offer to surrender if its effect is to deprive the other party of a lawful beneficial right. Also, the Registrar will not be sympathetic to a party who is using the proceedings primarily to frustrate or inconvenience the other party. Some relevant considerations are:

  • Is the surrender consistent with any contractual agreements between the parties?
  • Will the surrender have the effect of depriving the other party of a right or asset?
  • Is one party trying to obtain an advantage over the other party by way of the surrender, or objecting to the offer to surrender?

It should be noted that the public interest lies in accepting the offer to surrender. Accordingly, any benefit of doubt about whether the offer should be accepted will be resolved in favour of accepting the offer to surrender.