Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCA 1217

Birdon Pty Ltd v Houben Marine Pty Ltd [2011] FCA 1217

Because Birdon's claim for relief under the Australian Consumer Law was accepted as not colourable, the proceedings were still preliminary, and refusal to allow a short adjournment could prejudice Birdon and lead to further interlocutory applications affecting the orderly administration of justice, leave to amend and a short adjournment were warranted. However, Birdon should have brought forward its whole case earlier, so leave was granted on terms that it pay Houben Marine's thrown away costs and the costs of the day's proceedings on an indemnity basis.

Jurisdiction
Australia
Judgment Date
20 October 2011
Procedural Posture
Proceeding in Admiralty; Interlocutory Application Concerning Injunctions and Amendment of Interlocutory Application / Interlocutory Application After Full Court Decision and Pending Application for Special Leave to Appeal to the High Court of Australia
Outcome
Leave to amend granted; interlocutory application stood over; plaintiff ordered to pay the first defendant's thrown away costs and the costs of the day's proceeding on an indemnity basis.
Legal Topics
['interlocutory Injunctions' 'leave to Amend' 'interim Relief Pending Special Leave to Appeal' 'security of Payment Adjudication' 'misleading or Deceptive Conduct' 'indemnity Costs']
['admiralty' 'consumer Law' 'building and Construction' 'civil Procedure'] ['interlocutory Injunctions' 'leave to Amend' 'interim Relief Pending Special Leave to Appeal' 'security of Payment Adjudication' 'misleading or Deceptive Conduct' 'indemnity Costs']

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Procedural Posture

Proceeding in Admiralty; Interlocutory Application Concerning Injunctions and Amendment of Interlocutory Application / Interlocutory Application After Full Court Decision and Pending Application for Special Leave to Appeal to the High Court of Australia

Legal Issues

  1. 1 ['Whether Birdon should be granted leave to amend its interlocutory application to add a claim for an interlocutory injunction under s 232 of the Australian Consumer Law.' "Whether a short adjournment and maintenance of the status quo should be granted rather than immediately giving effect to the Full Court's answer that the existing injunctions should not be continued." "Whether costs should be ordered against Birdon on an indemnity basis because of the amendment and the costs of the day's proceedings."]

Ratio Decidendi

Because Birdon's claim for relief under the Australian Consumer Law was accepted as not colourable, the proceedings were still preliminary, and refusal to allow a short adjournment could prejudice Birdon and lead to further interlocutory applications affecting the orderly administration of justice, leave to amend and a short adjournment were warranted. However, Birdon should have brought forward its whole case earlier, so leave was granted on terms that it pay Houben Marine's thrown away costs and the costs of the day's proceedings on an indemnity basis.

Court Disposition

Leave to amend granted; interlocutory application stood over; plaintiff ordered to pay the first defendant's thrown away costs and the costs of the day's proceeding on an indemnity basis.

Orders

  • ['Leave be granted to the plaintiff to amend the interlocutory application filed on 18 October 2011.' 'The plaintiff pay, on an indemnity basis, the costs of the first defendant thrown away by reason of the amendment and the costs of the proceeding today.' 'By 12 noon on 24 October 2011 the plaintiff: (a) file and...