Federal Court of Australia

Nutrafruit Pty Ltd v Fivefifty5 Super Foods Pty Ltd [2024] FCA 1218

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the first, second and third respondents to withdraw the admission in the first sentence of paragraph 17 of the defence filed on 17 April 2024, and to file the defence in the form annexed to pages 140 to 152 of exhibit LJC5 to the affidavit of Lauren Jade Crosby, sworn 8 October 2024.

2.    The costs of the interlocutory application dated 8 October 2024 be costs in the cause.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

JACKMAN J:

1    The first to third respondents seek leave pursuant to r 26.11(2)(b) of the Federal Court Rules 2011 (Cth) to withdraw an admission in their defence to the effect that, since at least September 2021, there have been at least 15,000 Queen Garnet trees on the relevant property, and to amend their defence accordingly pursuant to r 16.53. An affidavit filed by the first to third respondents made by Mr Rullo suggests that the admission may be correct, albeit on the basis of a broad estimate. An audit conducted by Mr Langford on 22 August 2024, who was jointly engaged by the parties, produced a figure of 12,276 trees. That audit also relied, to some extent, on estimates, but would suggest that Mr Rullo’s estimate was wrong. A further audit is to be conducted in January 2025 by a jointly retained expert and that audit is proposed to involve an actual tree count rather than estimates. There remains an issue in the proceedings as to the precise number of trees on the property.

2    The first to third respondents have explained the making of the admission and the basis on which it is sought to be withdrawn. I cannot see that there is any real prejudice to the applicant arising from the proposed withdrawal of the admission. The precise number of trees on the property needs to be determined by an actual tree count, and once that has occurred any previous estimation of the number of trees on the property is very likely to become otiose.

Associate:

Dated:    17 October 2024

SCHEDULE OF PARTIES