Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 4) [2013] FCA 1047

Tamawood Limited v Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (No 4) [2013] FCA 1047

The application for leave to amend the ninth respondent's defence to plead innocent infringement under s 115(3) of the Copyright Act should be refused because (a) Mondo had ample opportunity to plead the defence earlier, (b) finality demands closure after judgment, (c) amendment would prejudice Tamawood and require...

Source-derived case information.

Parties
Applicant: Tamawood Limited (ACN 010 954 499); First Respondent: Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (ACN 122 935 497); Second Respondent: Bloomer Constructions (QLD) Pty Ltd (ACN 071 344 100); Third Respondent: Peter Frederick O'Mara; Fourth Respondent: David Gavin Johnson; Fifth Respondent: Wayne Norman Bloomer; Sixth Respondent: Habitare Pty Ltd (ACN 098 209 495); Seventh Respondent: Eight March Pty Ltd (ACN 099 315 787) (as Trustee of the Eight March Discretionary Trust); Eighth Respondent: First Priority Developments Pty Ltd (ACN 098 329 465) (as Trustee of the First Priority Discretionary Trust); Ninth Respondent: Mondo Architects Pty Ltd (ACN 085 992 990)
Jurisdiction
Australia
Judgment Date
15 October 2013
Procedural Posture
Interlocutory Application / Post Judgment, Application to Amend Defence
Outcome
Interlocutory application dismissed with costs.
Legal Topics
Amendment of Pleadings, Innocent Infringement Defence, Finality of Litigation
Practice and Procedure Copyright Amendment of Pleadings Innocent Infringement Defence Finality of Litigation

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Parties

Tamawood Limited (ACN 010 954 499)

Applicant

Habitare Developments Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) (ACN 122 935 497)

First Respondent

Bloomer Constructions (QLD) Pty Ltd (ACN 071 344 100)

Second Respondent

Peter Frederick O'Mara

Third Respondent

David Gavin Johnson

Fourth Respondent

Wayne Norman Bloomer

Fifth Respondent

Habitare Pty Ltd (ACN 098 209 495)

Sixth Respondent

Eight March Pty Ltd (ACN 099 315 787) (as Trustee of the Eight March Discretionary Trust)

Seventh Respondent

First Priority Developments Pty Ltd (ACN 098 329 465) (as Trustee of the First Priority Discretionary Trust)

Eighth Respondent

Mondo Architects Pty Ltd (ACN 085 992 990)

Ninth Respondent

Procedural Posture

Interlocutory Application / Post Judgment, Application to Amend Defence

Legal Issues

  1. 1 Whether leave should be granted to amend the defence to plead innocent infringement under s 115(3) of the Copyright Act 1968 after delivery of judgment
  2. 2 Whether the joint statement of issues superseded pleadings
  3. 3 Whether finality in litigation should preclude amendment at this late stage

Ratio Decidendi

The application for leave to amend the ninth respondent's defence to plead innocent infringement under s 115(3) of the Copyright Act should be refused because (a) Mondo had ample opportunity to plead the defence earlier, (b) finality demands closure after judgment, (c) amendment would prejudice Tamawood and require potential new evidence, and (d) no satisfactory explanation for the delay was given.

Court Disposition

Interlocutory application dismissed with costs.

Orders

  • The interlocutory application filed 28 May 2013 be dismissed with costs.