Solahart Industries Pty Ltd v Solar Shop Pty Ltd (No 1) [2010] FCA 1083

Solahart Industries Pty Ltd v Solar Shop Pty Ltd (No 1) [2010] FCA 1083

The amendment was refused because the applicants did not adequately explain the late timing of their application, actual prejudice to the respondents from vacating the trial and needing to meet a new issue was established, and it was for the applicants to demonstrate that the infliction of such prejudice was justified, which they failed to do.

Parties
First Applicant: Solahart Industries Pty Ltd; Second Applicant: Rheem Australia Pty Ltd; First Respondent: Solar Shop Pty Ltd; Second Respondent: Solar Hut Pty Ltd
Jurisdiction
Australia
Judgment Date
05 October 2010
Procedural Posture
Interlocutory Application in Trade Mark Infringement Proceeding / Application to Amend Pleading Prior to Trial
Outcome
Application to amend dismissed with costs
Legal Topics
Trade Mark Infringement, Pleading Amendment, Passing Off, Misleading or Deceptive Conduct, Prejudice From Late Amendment
Intellectual Property Law Practice and Procedure Trade Mark Infringement Pleading Amendment Passing Off Misleading or Deceptive Conduct Prejudice From Late Amendment

Case Brief

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Parties

Solahart Industries Pty Ltd

First Applicant

Rheem Australia Pty Ltd

Second Applicant

Solar Shop Pty Ltd

First Respondent

Solar Hut Pty Ltd

Second Respondent

Procedural Posture

Interlocutory Application in Trade Mark Infringement Proceeding / Application to Amend Pleading Prior to Trial

Legal Issues

  1. 1 Whether the applicants should be permitted to amend their pleading to add a claim under s 120(3) of the Trade Marks Act 1995 (Cth) close to trial
  2. 2 Whether permitting the amendment would cause prejudice to the respondents

Ratio Decidendi

The amendment was refused because the applicants did not adequately explain the late timing of their application, actual prejudice to the respondents from vacating the trial and needing to meet a new issue was established, and it was for the applicants to demonstrate that the infliction of such prejudice was justified, which they failed to do.

Court Disposition

Application to amend dismissed with costs

Orders

  • The applicants' notice of motion filed on 24 September 2010 be dismissed with costs.