Acohs Pty Ltd v Ucorp Pty Ltd [2008] FCA 41

Acohs Pty Ltd v Ucorp Pty Ltd [2008] FCA 41

The applicant did not act unreasonably or imprudently in preparing the Fourth Further Amended Statement of Claim, as limitations were imposed by respondents' confidentiality claims over discovered documents. Accordingly, the respondents are only entitled to costs thrown away due to the Fifth Further Amended Statement of Claim and not broader or indemnity costs, nor should those costs be paid forthwith. Normal procedure for taxation of interlocutory costs at the conclusion of proceedings should be followed.

Parties
Applicant: Acohs Pty Ltd; First Respondent / First Cross Claimant: Ucorp Pty Ltd (ACN 062 768 094); Second Respondent / Second Cross Claimant: Bernard Bialkower; First Cross Respondent: Wesfarmers Limited (ACN 008 984 049); Second Cross Respondent: J Blackwood & Sons Limited (ACN 000 010 300)
Jurisdiction
Australia
Judgment Date
31 January 2008
Procedural Posture
Interlocutory (application to Amend Statement of Claim and Related Costs) / Post Amendment Application, Costs Determination (interlocutory)
Outcome
Applicant to pay respondents’ costs occasioned by the filing of the Fifth Further Amended Application and Statement of Claim; cross-respondents’ costs reserved.
Legal Topics
Costs, Amendment of Pleadings, Copyright
Civil Procedure Intellectual Property Costs Amendment of Pleadings Copyright

Case Brief

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Parties

Acohs Pty Ltd

Applicant

Ucorp Pty Ltd (ACN 062 768 094)

First Respondent / First Cross Claimant

Bernard Bialkower

Second Respondent / Second Cross Claimant

Wesfarmers Limited (ACN 008 984 049)

First Cross Respondent

J Blackwood & Sons Limited (ACN 000 010 300)

Second Cross Respondent

Procedural Posture

Interlocutory (application to Amend Statement of Claim and Related Costs) / Post Amendment Application, Costs Determination (interlocutory)

Legal Issues

  1. 1 Whether the Applicant should pay the Respondents’ costs incurred as a result of the Fifth Further Amended Application and Statement of Claim
  2. 2 Whether the Respondents are entitled to costs beyond those thrown away by the amendment
  3. 3 Whether costs should be taxed and paid on an indemnity basis and/or paid forthwith

Ratio Decidendi

The applicant did not act unreasonably or imprudently in preparing the Fourth Further Amended Statement of Claim, as limitations were imposed by respondents' confidentiality claims over discovered documents. Accordingly, the respondents are only entitled to costs thrown away due to the Fifth Further Amended Statement of Claim and not broader or indemnity costs, nor should those costs be paid forthwith. Normal procedure for taxation of interlocutory costs at the conclusion of proceedings should be followed.

Court Disposition

Applicant to pay respondents’ costs occasioned by the filing of the Fifth Further Amended Application and Statement of Claim; cross-respondents’ costs reserved.

Orders

  • The applicant pay the respondents' costs occasioned by the filing of the Fifth Further Amended Application and the Fifth Further Amended Statement of Claim, including the costs of the hearing and determination of the application to amend.
  • The cross-respondents' costs, if any, occasioned by the filing of the Fifth Further Amended Application and the Fifth Further Amended Statement of Claim, including their costs of the hearing and determination of the application to amend, be reserved.