Elevate Brandpartners Ltd v Hammond (No 3)

FEDERAL COURT OF AUSTRALIA

Elevate Brandpartners Ltd v Hammond (No 3) [2019] FCA 1788

File number:

NSD 488 of 2019

Judge:

STEWART J

Date of judgment:

31 October 2019

Catchwords:

COSTS – costs thrown away by amendments

Cases cited:

Elevate Brandpartners Ltd v Hammond [2019] FCA 1103

Elevate Brandpartners Ltd v Hammond (No 2) [2019] FCA 1598

Date of hearing:

31 October 2019

Registry:

New South Wales

Division

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Category:

Catchwords

Number of paragraphs:

16

Counsel for the Plaintiffs:

S Dawson SC and M Cairns

Solicitor for the Plaintiffs:

HWL Ebsworth

Counsel for the Defendants:

R Newlinds SC and D G Healey

Solicitor for the Defendants:

Gadens

ORDERS

NSD 488 of 2019

BETWEEN:

ELEVATE BRANDPARTNERS LTD (UK COMPANY NUMBER 10159717)

First Applicant

QUAYEYEWARE PTY LTD ACN 118 078 274

Second Applicant

AND:

LINDA HAMMOND

First Respondent

ALLEN JASON RICHARD HAMMOND

Second Respondent

ZAK RILEY RICHARD HAMMOND (and another named in the Schedule)

Third Respondent

JUDGE:

STEWART J

DATE OF ORDER:

31 OCTOBER 2019

THE COURT ORDERS THAT:

1.        With regard to the costs thrown away by the applicants’ Further Amended Originating Application and Amended Statement of Claim filed on 27 September 2019 pursuant to leave granted by orders on 25 September 2019:

(a)       the applicants are to pay the costs of the proceeding of the third respondent, Zak Hammond, excluding the costs that he was ordered to bear himself by orders on 25 September 2019;

(b)       the costs of the first, second and fourth of respondents are costs in the cause.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

1. On 25 September 2019, I granted the applicants leave to file and serve an amended statement of claim and a further amended originating application and I reserved all questions of costs arising from those amendments.  The costs questions were argued before me today.

2. The amendments are significant.  First, they have the effect of removing the third respondent, Zak Hammond, from the proceeding altogether; that is to say, he is no longer a respondent.  Second, they delete originally asserted causes of action against (1) the fourth respondent, Dream Bandits, of tortious interference with contractual relations, (2) all the respondents for trademark infringement, (3) the first respondent, Ms Hammond, for copyright infringement, and (4) the first, second and fourth respondents for misrepresentation.  Third, they place greater reliance on breaches of a shareholders’ deed, in particular by seeking additional declarations with regard to the nature of any breach of the deed constituting an event of default under the deed.

3. It is convenient to deal first with the costs of the third respondent, Zak Hammond.  In the ordinary course, a party discontinuing against another party should pay the latter’s costs.  It was submitted on behalf of the applicants that the usual order should not be made in this case because I previously ordered that Zak Hammond…