Federal Court of Australia Nutrafruit Pty Ltd v Fivefifty5 Super Foods Pty Ltd [2024] FCA 1218 File number: NSD 58 of 2024 Judgment of: JACKMAN J Date of judgment: 14 October 2024 Catchwords: PRACTICE AND PROCEDURE – leave to withdraw an admission – where first to third respondents admitted that there have been at least 15,000 Queen Garnet trees on relevant property – where precise number of trees remains an issue in the proceedings – where no prejudice to the applicant Legislation: Federal Court Rules 2011 (Cth) r 26.11(2)(b) Division: General Division Registry: New South Wales National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Number of paragraphs: 2 Date of hearing: 14 October 2024 Counsel for the Applicant: Mr A Lang SC and Ms S Ross Solicitor for the Applicant: Hamilton Locke Counsel for the First to Third Respondents: Mr H Bevan SC and Ms G Rubagotti Solicitor for the First to Third Respondents: Kain Lawyers Counsel for the Fourth Respondent: Mr M Hall SC Solicitor for the Fourth Respondent: Gadens ORDERS NSD 58 of 2024 BETWEEN: NUTRAFRUIT PTY LTD (ACN 138 385 154) Applicant AND: FIVEFIFTY5 SUPER FOODS PTY LTD (ACN 634 947 738) First Respondent MR ANTHONY ABRAHAM Second Respondent MR FRANK BARILLARO (and others named in the Schedule) Third Respondent order made by: JACKMAN J DATE OF ORDER: 14 OCTOBER 2024 THE COURT ORDERS THAT: 1. Leave be granted to the first, second and third respondents to withdraw the admission in the first sentence of paragraph 17 of the defence filed on 17 April 2024, and to file the defence in the form annexed to pages 140 to 152 of exhibit LJC5 to the affidavit of Lauren Jade Crosby, sworn 8 October 2024. 2. The costs of the interlocutory application dated 8 October 2024 be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT Delivered ex tempore, revised from transcript JACKMAN J: 1 The first to third respondents seek leave pursuant to r 26.11(2)(b) of the Federal Court Rules 2011 (Cth) to withdraw an admission in their defence to the effect that, since at least September 2021, there have been at least 15,000 Queen Garnet trees on the relevant property, and to amend their defence accordingly pursuant to r 16.53. An affidavit filed by the first to third respondents made by Mr Rullo suggests that the admission may be correct, albeit on the basis of a broad estimate. An audit conducted by Mr Langford on 22 August 2024, who was jointly engaged by the parties, produced a figure of 12,276 trees. That audit also relied, to some extent, on estimates, but would suggest that Mr Rullo's estimate was wrong. A further audit is to be conducted in January 2025 by a jointly retained expert and that audit is proposed to involve an actual tree count rather than estimates. There remains an issue in the proceedings as to the precise number of trees on the property. 2 The first to third respondents have explained the making of the admission and the basis on which it is sought to be withdrawn. I cannot see that there is any real prejudice to the applicant arising from the proposed withdrawal of the admission. The precise number of trees on the property needs to be determined by an actual tree count, and once that has occurred any previous estimation of the number of trees on the property is very likely to become otiose. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman. Associate: Dated: 17 October 2024 SCHEDULE OF PARTIES NSD 58 of 2024 Respondents Fourth Respondent: Centuria Property Funds Limited No 3 Limited (ACN 091 415 833) Fifth Respondent: The State of Queensland acting through the Department of Agriculture and Fisheries