Advanta Seeds Pty Ltd v Nuseed Pty Ltd (Summary Judgment Costs)

By the time the application was filed on 9 September 2025, the proceeding was already well advanced. Evidence in chief had closed and the matter was listed for a three-week trial starting on 9 February 2026. That timing mattered. Courts are generally less tolerant of major shifts in a party's case once evidence timetables have closed and trial is approaching, because those shifts can waste work already done by the other side.

Nuseed's application was based on Advanta's then-current pleading, the Second Further Amended Statement of Claim. Nuseed said that, on that pleading, Advanta had to prove that plant line 48118 had been produced using a particular patented method described in the reasons as Method C. Nuseed argued Advanta's evidence in chief did not support a reasonable inference that this had happened.

Shortly before the hearing, Advanta filed more than 500 pages of additional affidavit material and then served written submissions the day before the hearing. Those submissions advanced two propositions the court later said were not pleaded. One was a different factual inference from contemporaneous documents about plants being added into Advanta's breeding program. The other was a different contractual argument that royalties were payable even if 48118 had not been made using the patented method.

At the hearing, Nuseed said this amounted to a new case. Advanta did not defend the summary judgment application on the basis of its existing pleading. Instead, it sought leave to amend. It later filed a Third Further Amended Statement of Claim and also amended its Product and process description and its Position Statement on Infringement. Nuseed then stopped pressing the application, but asked the court to order Advanta to pay the costs it had incurred in bringing it.

The court also had to consider Advanta's argument that summary judgment is difficult to obtain, especially close to trial, and that Nuseed's application would likely have failed anyway. If that were right, it might have supported leaving costs in the cause. But the court was not persuaded by that submission.

Another issue was whether existing costs orders had already compensated Nuseed. Advanta pointed to orders giving Nuseed its costs of the hearing appearance on 22 October 2025 and its costs thrown away by reason of the pleading amendments. The court still had to decide whether the separate costs of preparing the summary judgment application itself had been wasted and should be paid by Advanta.

The court also relied on the fact that Advanta now depended on further evidence that it had filed in response to the summary judgment application as evidence in chief. The judge said that extra material would not have been needed if the amendments were only clarification of the existing case. That was a practical indicator that the case had changed in substance.

On the argument that Nuseed's application would have failed anyway, the court was not convinced. The judge said the fact that Advanta needed to amend its pleading and file additional evidence demonstrated that Advanta recognised there was a real prospect of failure on the summary judgment application as originally framed.

The court also rejected the submission that any wasted costs had already been covered by earlier orders. It held that Nuseed had incurred costs in preparing the summary judgment application apart from the hearing appearance itself, and those costs were now wasted. The reasons specifically mention the burden of dealing with an outline of submissions served only the day before the hearing. Any overlap with other costs orders could be dealt with later by a taxing officer.

So, even though the application itself was dismissed by consent and the substantive issues remained alive for trial, the court still made a separate costs order against Advanta because the late shift in its case had caused Nuseed to incur wasted interlocutory costs.

The judgment also shows that timing and conduct can be as important as legal theory. Advanta filed over 500 pages of additional evidence on 16 October 2025 and served its written outline the day before the hearing. The court treated that sequence as part of the reason Nuseed's preparation costs were wasted. Late evidence and late argument can increase costs even if the court later allows the matter to continue on an amended basis.

For a business owner, the practical point is that pleadings, affidavits, technical descriptions and contractual arguments should be checked together. If there is a mismatch, it is better to identify and fix it before the other side spends money preparing an application against your existing case.

There are three practical trigger points to watch. First, when the evidence timetable is about to close or has already closed. Secondly, when your submissions rely on propositions not clearly pleaded. Thirdly, when your technical or commercial documents do not line up with the case theory you are advancing. If any of those are present, the business should expect a serious discussion with its lawyers about amendment risk and costs exposure.

Businesses should also note that the court was not persuaded by the argument that summary judgment is hard to obtain. Difficulty of success did not save Advanta from a costs order. The court focused on whether the application had a real prospect on the case as originally pleaded and whether the later change caused Nuseed's work to be wasted.