Austshade Pty Ltd v Boss Shade Pty Ltd (No 3) [2016] FCA 663

FEDERAL COURT OF AUSTRALIA

Austshade Pty Ltd v Boss Shade Pty Ltd (No 3) [2016] FCA 663 File number: QUD 189 of 2012

Judge: DOWSETT J

Date of judgment: 3 June 2016

Catchwords: PRACTICE AND PROCEDURE – amending pleadings – where applicants sought to amend a third further amended statement of claim after reasons for judgment published

Legislation: Federal Court of Australia Act 1976 (Cth)

Date of hearing: Determined on the papers

Date of last submissions: 5 May 2016

Registry: Queensland

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Patents and associated Statutes

Category: Catchwords

Number of paragraphs: 9

Counsel for the Applicants: Mr A Musgrave

Solicitor for the Applicants: Burns & Associates

Solicitor for the Respondents: Mr M Byrne of Lillas & Loel Lawyers

ORDERS QUD 189 of 2012

BETWEEN: AUSTSHADE PTY LTD ACN 066 409 247 First Applicant

EKKEHARD SIEGFRIED HARTMUT KOEHN Second Applicant

AND: BOSS SHADE PTY LTD ACN 115 280 272 First Respondent

BAUER INVESTMENTS PTY LTD ACN 010 865 068 Second Respondent

HOLGER BAUER (and others named in the Schedule) Third Respondent

JUDGE: DOWSETT J DATE OF ORDER: 3 JUNE 2016

THE COURT ORDERS THAT:

1. leave be granted to the applicants to file and serve a further amended originating application and a fourth further amended statement of claim, such amendments being limited to the addition of a claim for recovery of a debt in the amount of $1,050 owed by the first respondent to the first applicant, pursuant to a deed between those parties executed on 30 November 2010; 2. such further amended originating application and fourth further amended statement of claim be filed and served within 7 days of the publication of these reasons; 3. in default of compliance with the order as to filing and service, the grant of leave to amend be revoked; 4. the first applicant have leave to enter judgment against the first respondent in the amount of $1,050, unless payment of such sum is tendered to the first applicant in cash or by bank cheque, within 14 days of the filing and serving of the said amended documents, or otherwise as agreed between the parties, and that such non-payment may be proven by affidavit sworn on behalf of, and with the authorization of the first applicant; 5. the applicants pay the respondents' costs of the proceedings; 6. the parties have liberty to apply concerning the payment or non-payment of the said sum of $1,050; and 7. the action be otherwise dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.