Ames Australasia Pty Ltd v AgBoss Australia Pty Ltd (No 2) [2021] FCA 1044

Ames Australasia Pty Ltd v AgBoss Australia Pty Ltd (No 2) [2021] FCA 1044

Although the respondent succeeded on the amendment application and some of the applicant's submissions were undeveloped and misplaced, the Court was not persuaded that the applicant acted unreasonably or without bona fides in opposing the application. The preferable discretionary costs order was that the parties' costs of the interlocutory application be costs in the cross claim, while the respondent should pay the applicant's costs thrown away by reason of the amendments, including party and party costs incurred in considering the various proposed further amended statements of cross claim.

Jurisdiction
Australia
Judgment Date
30 August 2021
Procedural Posture
Costs Determination in an Interlocutory Application for Leave to File and Serve an Amended Notice of Cross Claim and Further Amended Statement of Cross Claim / Determined on the Papers After Short Written Submissions on Costs
Outcome
Costs ordered substantially as advanced by the applicant: costs of the interlocutory application to be costs in the cross claim, and the respondent to pay the applicant's costs thrown away by reason of the amended pleading.
Legal Topics
['costs of Interlocutory Application' 'amendment of Pleadings' 'cross Claim' 'costs Thrown Away' 'costs in the Cross Claim' "solicitors' Correspondence"]
['civil Procedure' 'costs' 'intellectual Property'] ['costs of Interlocutory Application' 'amendment of Pleadings' 'cross Claim' 'costs Thrown Away' 'costs in the Cross Claim' "solicitors' Correspondence"]

Case Brief

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Procedural Posture

Costs Determination in an Interlocutory Application for Leave to File and Serve an Amended Notice of Cross Claim and Further Amended Statement of Cross Claim / Determined on the Papers After Short Written Submissions on Costs

Legal Issues

  1. 1 ['What costs order should be made after the respondent and cross claimant succeeded on its interlocutory application for leave to amend its cross claim documents.' "Whether the respondent should pay the applicant's costs thrown away by reason of the amended pleading, including costs incurred in relation to earlier proposed drafts." "Whether the applicant's opposition to the amendment application was unreasonable so as to justify an order that the applicant pay the respondent's costs of the application." "Whether the tone and extent of the applicant's solicitors' correspondence should affect the costs order."]

Ratio Decidendi

Although the respondent succeeded on the amendment application and some of the applicant's submissions were undeveloped and misplaced, the Court was not persuaded that the applicant acted unreasonably or without bona fides in opposing the application. The preferable discretionary costs order was that the parties' costs of the interlocutory application be costs in the cross claim, while the respondent should pay the applicant's costs thrown away by reason of the amendments, including party and party costs incurred in considering the various proposed further amended statements of cross claim.

Court Disposition

Costs ordered substantially as advanced by the applicant: costs of the interlocutory application to be costs in the cross claim, and the respondent to pay the applicant's costs thrown away by reason of the amended pleading.

Orders

  • ["Subject to order 2, the parties' costs of and incidental to the interlocutory application filed 7 July 2021 be costs in the cross claim." "The respondent pay the applicant's costs thrown away by reason of the filing of the amended notice of cross claim and further amended statement of cross claim, which costs...