Bioprospect Ltd v Solagran Ltd (No 2) - [2010] FCA 1097

FEDERAL COURT OF AUSTRALIA
Bioprospect Ltd v Solagran Ltd (No 2) [2010] FCA 1097

Citation: Bioprospect Ltd v Solagran Ltd (No 2) [2010] FCA 1097

Parties: BIOPROSPECT LTD ACN 008 130 336 v SOLAGRAN LTD ACN 002 592 396, VAGIF SOULTANOVICH SOULTANOV, DENIS BERTRAM KILROY, NOVA VITA PTY LTD ACN 109 436 508 and CUMPUTERSHARE INVESTOR SERVICES PTY LTD ACN 078 279 277

File number: WAD 234 of 2010

Judge: MCKERRACHER J

Date of judgment: 11 October 2010

Catchwords: PRACTICE AND PROCEDURE – motion to amend statement of claim – motion to strike out statement of claim – prejudice to the respondents – arguable cause of action disclosed

Cases cited: Bioprospect Ltd v Solagran Ltd [2010] FCA 1081
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494

Date of hearing: 6 October 2010

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 15

Counsel for the Applicant: T Coyle with A Rumble

Solicitor for the Applicant: Lavan Legal

Counsel for the First and Second Respondents: MD Wyles SC with B Murphy

Solicitor for the First and Second Respondents: Foster Nicholson Legal

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 234 of 2010

BETWEEN:
BIOPROSPECT LTD ACN 008 130 336
Applicant

AND:
SOLAGRAN LTD ACN 002 592 396
First Respondent

VAGIF SOULTANOVICH SOULTANOV
Second Respondent

DENIS BERTRAM KILROY
Third Respondent

NOVA VITA PTY LTD ACN 109 436 508
Fourth Respondent

CUMPUTERSHARE INVESTOR SERVICES PTY LTD
ACN 078 279 277
Fifth Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

11 OCTOBER 2010

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The motion to further amend the statement of claim be allowed.
2.The motion to strike out the amended statement of claim be dismissed.
3.Costs be reserved until trial.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 234 of 2010

BETWEEN:
BIOPROSPECT LTD ACN 008 130 336
Applicant

AND:
SOLAGRAN LTD ACN 002 592 396
First Respondent

VAGIF SOULTANOVICH SOULTANOV
Second Respondent

DENIS BERTRAM KILROY
Third Respondent

NOVA VITA PTY LTD ACN 109 436 508
Fourth Respondent

CUMPUTERSHARE INVESTOR SERVICES PTY LTD
ACN 078 279 277
Fifth Respondent

JUDGE:

MCKERRACHER J

DATE:

11 OCTOBER 2010

PLACE:

PERTH

REASONS FOR JUDGMENT
INTRODUCTION

These reasons deal with a pleading debate and consequential considerations. For an understanding of the background and terminology used in these reasons regard should be had to Bioprospect Ltd v Solagran Ltd [2010] FCA 1081 (Bioprospect No 1).
The applicant (Bioprospect) seeks to amend its statement of claim. The first respondent (Solagran) opposes the amendment. Solagran is concerned as to prejudice that would be sustained as a result of a new expanded case, alternatively it contends that the case as explained by counsel in oral argument discloses no cause of action.
The essence of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FCA 1097
Decision Date: 11 October 2010

CaseChat Overview and Summary

The parties to the case, Bioprospect Ltd v Solagran Ltd (No 2), were Bioprospect Ltd, the plaintiff, and Solagran Ltd, the defendant. The dispute centred around a motion to amend the statement of claim and a subsequent motion to strike out the amended statement of claim. The court hearing the matter was the Federal Court of Australia.

The primary legal issues for the court to decide were whether the plaintiff was entitled to further amend its statement of claim and if the defendant's motion to strike out the amended statement of claim should be granted. The court had to consider the prejudice that might be caused to the defendant by allowing further amendments and whether the amended statement of claim disclosed an arguable cause of action.

The court held that the plaintiff was entitled to further amend its statement of claim. It found that the amended statement of claim disclosed an arguable cause of action, and the prejudice to the defendant was not sufficient to warrant striking out the amended statement of claim. Consequently, the motion to further amend the statement of claim was allowed, and the motion to strike out the amended statement of claim was dismissed. The court reserved costs until the trial.

Orders

Orders of the court

1. The motion to further amend the statement of claim be allowed.

2. The motion to strike out the amended statement of claim be dismissed.

3. Costs be reserved until trial.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Bioprospect Ltd v Solagran Ltd (No 2) [2010] FCA 1097
Parties:		BIOPROSPECT LTD ACN 008 130 336 v SOLAGRAN LTD ACN 002 592 396, VAGIF SOULTANOVICH SOULTANOV, DENIS BERTRAM KILROY, NOVA VITA PTY LTD ACN 109 436 508 and CUMPUTERSHARE INVESTOR SERVICES PTY LTD ACN 078 279 277
File number:		WAD 234 of 2010
Judge:		MCKERRACHER J
Date of judgment:		11 October 2010
Catchwords:		PRACTICE AND PROCEDURE – motion to amend statement of claim – motion to strike out statement of claim – prejudice to the respondents – arguable cause of action disclosed
Cases cited:		Bioprospect Ltd v Solagran Ltd [2010] FCA 1081 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Date of hearing:	6 October 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Applicant:	T Coyle with A Rumble
Solicitor for the Applicant:	Lavan Legal
Counsel for the First and Second Respondents:	MD Wyles SC with B Murphy
Solicitor for the First and Second Respondents:	Foster Nicholson Legal

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 234 of 2010

JUDGE:	MCKERRACHER J
DATE OF ORDER:	11 OCTOBER 2010
WHERE MADE:	PERTH

JUDGE:	MCKERRACHER J
DATE:	11 OCTOBER 2010
PLACE:	PERTH