Beadcrete Pty Ltd v Fei Yu trading as Jewels 4 Pools (No 2) [2012] FCA 1139

Beadcrete Pty Ltd v Fei Yu trading as Jewels 4 Pools (No 2) [2012] FCA 1139

The real forensic disadvantage to the applicants created by the lateness of the respondents' application to amend their cross-claim, particularly regarding the opportunity to adduce damage evidence related to unjustifiable threats, means leave to amend should not be granted at this stage.

Parties
First Applicant: Beadcrete Pty Ltd (ACN 071 743 961); Second Applicant: Designer Concrete Coatings Pty Ltd (ACN 102 760 234); Third Applicant: Buyrite Steel Supplies Pty Ltd (ACN 053 173 041); Fourth Applicant: Designerite Pty Ltd (ACN 146 670 706); First Respondent: Fei Yu trading as Jewels 4 Pools; Second Respondent: Jeffrey Stuart McAlister; Third Respondent: Pebble Masters Pty Ltd (ACN 087 540 734); Fourth Respondent: Twin Coast Pools Pty Ltd (ACN 104 149 484); Fifth Respondent: Melken Developments Pty Ltd trading as Bayside Pools & Paving (ACN 052 945 169); Sixth Respondent: Grin Distributions Pty Ltd (ACN 133 541 563)
Jurisdiction
Australia
Judgment Date
03 October 2012
Procedural Posture
Application for Leave to Amend Cross Claim in Patent Proceeding / Interlocutory Application Decision
Outcome
application for leave to amend cross-claim dismissed
Legal Topics
Patents, Unjustifiable Threats, Cross Claims, Damages, Litigation Procedure
Intellectual Property Law Patents Unjustifiable Threats Cross Claims Damages Litigation Procedure

Case Brief

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Parties

Beadcrete Pty Ltd (ACN 071 743 961)

First Applicant

Designer Concrete Coatings Pty Ltd (ACN 102 760 234)

Second Applicant

Buyrite Steel Supplies Pty Ltd (ACN 053 173 041)

Third Applicant

Designerite Pty Ltd (ACN 146 670 706)

Fourth Applicant

Fei Yu trading as Jewels 4 Pools

First Respondent

Jeffrey Stuart McAlister

Second Respondent

Pebble Masters Pty Ltd (ACN 087 540 734)

Third Respondent

Twin Coast Pools Pty Ltd (ACN 104 149 484)

Fourth Respondent

Melken Developments Pty Ltd trading as Bayside Pools & Paving (ACN 052 945 169)

Fifth Respondent

Grin Distributions Pty Ltd (ACN 133 541 563)

Sixth Respondent

Procedural Posture

Application for Leave to Amend Cross Claim in Patent Proceeding / Interlocutory Application Decision

Legal Issues

  1. 1 Whether leave should be granted to amend the cross-claim to add a claim and relief for unjustifiable threats under s 128 of the Patents Act 1990 (Cth)

Ratio Decidendi

The real forensic disadvantage to the applicants created by the lateness of the respondents' application to amend their cross-claim, particularly regarding the opportunity to adduce damage evidence related to unjustifiable threats, means leave to amend should not be granted at this stage.

Court Disposition

application for leave to amend cross-claim dismissed

Orders

  • The application for leave to amend the cross-claim filed on 25 September 2012 be dismissed.