DGM Support BV v DGM Australia Pty Ltd [2010] FCA 1349

DGM Support BV v DGM Australia Pty Ltd [2010] FCA 1349

Leave was granted for the proposed amendments to pars 14, 15 and 21 because they clarified and narrowed issues already within the controversy, relied on identified discovered documents, and did not cause demonstrated substantive prejudice or surprise to the respondent. Leave was refused for proposed amendments to...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
25 November 2010
Procedural Posture
Application to Further Amend Amended Statement of Claim in Proceedings Concerning Common Law Trademarks or Goodwill / Interlocutory Application Less Than Three Weeks Before the Fixed Hearing Date
Outcome
Application for leave to amend granted in part and refused as to the proposed amendments to pars 20 and 20A; applicant ordered to pay costs thrown away by reason of the amendment including the hearing.
Legal Topics
['amendment of Pleadings' 'particulars' 'overarching Purpose' 'common Law Trademarks' 'goodwill' 'licence Agreements']
['civil Procedure' 'trade Marks' 'goodwill'] ['amendment of Pleadings' 'particulars' 'overarching Purpose' 'common Law Trademarks' 'goodwill' 'licence Agreements']

Source-derived case record

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Procedural Posture

Application to Further Amend Amended Statement of Claim in Proceedings Concerning Common Law Trademarks or Goodwill / Interlocutory Application Less Than Three Weeks Before the Fixed Hearing Date

Legal Issues

  1. 1 ['Whether leave should be granted to the applicant to further amend its amended statement of claim shortly before trial.' 'Whether proposed amendments to pars 14 and 15, particularising an alleged 1991 agreement and removing reliance on oral terms, should be allowed.' 'Whether proposed amendments to par 21 alleging first use of the DGM marks and logo should be allowed.' 'Whether proposed amendments to pars 20 and 20A alleging permission or continuation of the 1996 agreement after 31 December 2006 pleaded coherent material facts.']

Ratio Decidendi

Leave was granted for the proposed amendments to pars 14, 15 and 21 because they clarified and narrowed issues already within the controversy, relied on identified discovered documents, and did not cause demonstrated substantive prejudice or surprise to the respondent. Leave was refused for proposed amendments to pars 20 and 20A because they did not plead substantive material facts from which the alleged permission, conduct, or continuation agreement could be discerned, did not provide a basis for admitting evidence of an alleged 2007 oral agreement, and were embarrassing.

Court Disposition

Application for leave to amend granted in part and refused as to the proposed amendments to pars 20 and 20A; applicant ordered to pay costs thrown away by reason of the amendment including the hearing.

Orders

  • ['Leave be granted to the applicant to amend the amended statement of claim in the form of the further amended statement of claim attached to the notice of motion filed 23 November 2010, save as to the amendments to pars 20 and 20A in the draft, and any amendment consequential on that rejection to the document.'...