Anchorage Capital Partners Pty Limited v ACPA Pty Limited (No 1) [2014] FCA 765

Anchorage Capital Partners Pty Limited v ACPA Pty Limited (No 1) [2014] FCA 765

Leave to amend was granted except for claims for lost profits or loss of chance of making profits because the applicant could plead damage to goodwill without identifying a lost transaction, but could not plead lost profits or loss of chance without identifying the profits or chance said to have been lost. Discovery was stood over because the pleadings and evidence should first narrow the issues, discovery on quantum risked wasted expense, and the applicant already had considerable knowledge of ACPA's alleged conduct. Liability issues were ordered to be tried separately and in advance of relief, with the applicant required to prove some loss where necessary while preserving its right to...

Jurisdiction
Australia
Judgment Date
25 July 2014
Procedural Posture
Practice and Procedure Application in Proceedings Alleging Trade Mark Infringement, Passing Off and Misleading and Deceptive Conduct, With a Cross Claim Concerning Expungement of Trade Marks and Misleading and Deceptive Conduct / Interlocutory Applications for Leave to Amend Statement of Claim, Discovery Before Pleadings Closed and Separation of Liability From Quantum
Outcome
The applicant was granted leave to file an amended statement of claim except for claims for lost profits or loss of chance of making profits; discovery applications were stood over generally; all questions apart from relief were directed to be tried separately and in advance; no order as to costs.
Legal Topics
['amendment of Statement of Claim' 'particulars of Damage' 'lost Profits' 'loss of Chance' 'damage to Goodwill' 'discovery Before Evidence' 'separate Trial of Liability and Quantum']
['practice and Procedure' 'intellectual Property' 'trade Marks' 'passing Off' 'misleading and Deceptive Conduct'] ['amendment of Statement of Claim' 'particulars of Damage' 'lost Profits' 'loss of Chance' 'damage to Goodwill' 'discovery Before Evidence' 'separate Trial of Liability and Quantum']

Case Brief

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Procedural Posture

Practice and Procedure Application in Proceedings Alleging Trade Mark Infringement, Passing Off and Misleading and Deceptive Conduct, With a Cross Claim Concerning Expungement of Trade Marks and Misleading and Deceptive Conduct / Interlocutory Applications for Leave to Amend Statement of Claim, Discovery Before Pleadings Closed and Separation of Liability From Quantum

Legal Issues

  1. 1 ['Whether the applicant should have leave to amend its statement of claim to plead lost profits, loss of a real chance of earning additional profits and damage to goodwill' 'Whether discovery should be granted before the pleadings had closed and before evidence had been filed' 'Whether liability should be determined separately and in advance of quantum']

Ratio Decidendi

Leave to amend was granted except for claims for lost profits or loss of chance of making profits because the applicant could plead damage to goodwill without identifying a lost transaction, but could not plead lost profits or loss of chance without identifying the profits or chance said to have been lost. Discovery was stood over because the pleadings and evidence should first narrow the issues, discovery on quantum risked wasted expense, and the applicant already had considerable knowledge of ACPA's alleged conduct. Liability issues were ordered to be tried separately and in advance of relief, with the applicant required to prove some loss where necessary while preserving its right to...

Court Disposition

The applicant was granted leave to file an amended statement of claim except for claims for lost profits or loss of chance of making profits; discovery applications were stood over generally; all questions apart from relief were directed to be tried separately and in advance; no order as to costs.

Orders

  • ["Grant leave to the applicant to file an amended statement of claim in the form included in the applicant's application book save that leave is not granted to include the claim for lost profits or the loss of chance of making profits." 'Direct that the applicant file and serve the amended statement of claim within...