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

This decision sits inside a larger commercial fight between Advanta Seeds Pty Ltd and Nuseed Pty Ltd about royalties and patent rights connected to TT Hybrid Canola Seed. Advanta said royalties were payable under a 2016 licensing agreement and also alleged patent infringement. Nuseed responded with a summary judgment application aimed at knocking out certain claims and relief before trial.

The important point is that this judgment is not the final merits decision. It is a costs ruling about what happened when Nuseed brought that application and Advanta answered it with a different and broader case than the one it had previously pleaded.

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.

This sequence helps explain the result. The closer a matter gets to trial, the more expensive and disruptive it becomes to change the case theory. Here, the court was dealing with a late-stage application in a proceeding where evidence had already closed. That procedural setting made the costs consequences more acute.

The immediate issue was narrow but commercially important: after the summary judgment application was dismissed by consent, should Advanta pay Nuseed's costs of that application, or should those costs simply be treated as costs in the proceeding?

To answer that, the court had to decide whether Advanta's late evidence and submissions were really just clarification of the case it had already pleaded, as Advanta argued, or whether they introduced a new and expanded case. That distinction mattered because a party is generally entitled to prepare and argue an interlocutory application against the case actually pleaded. If the responding party then changes the case in a material way, the applicant may have incurred wasted costs.

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.

Downes J ordered that Advanta pay Nuseed's costs of the summary judgment application. The court rejected Advanta's submission that the amendments in the Third Further Amended Statement of Claim were merely clarificatory. Instead, the court found that the amendments expanded the case previously pleaded.

The reasons identify two important changes. First, the amended pleading now contended that 48118 was produced using Method A and Method C. Secondly, it pleaded the new construction argument about the licensing agreement. The court treated those matters as additions to the case, not simple refinement of what had already been alleged.

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.

This judgment is a strong reminder that courts look at the whole litigation record, not just the latest submissions. The reasons compare Advanta's late propositions with earlier documents, including its Product and process description and its Explanation of steps regarding PPD dated 30 June 2025. The court said the new factual proposition was inconsistent with those earlier materials.

That matters for businesses because technical disputes are often built on internal records, product descriptions, process maps, laboratory histories, development timelines and commercial agreements. If those documents point one way but the submissions filed in response to an application point another, the court may conclude the party is trying to run a different case from the one previously advanced.

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.

This is not a patent doctrine case so much as a case management and costs case. Its message is especially relevant for businesses involved in IP, licensing and other evidence-heavy disputes. If your company sues on one factual and contractual theory, but later tries to rely on a different inference from documents or a different construction of the agreement, the court may let you amend but still make you pay the costs caused by the change.

That risk is not limited to patent matters. The same logic can apply in contract, technology, franchise, construction and shareholder disputes where the case depends on a pleaded theory supported by documents and witness evidence. Once the other side has prepared an interlocutory application against your pleaded case, a late pivot can become a direct costs problem.

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.

This page is based on Advanta Seeds Pty Ltd v Nuseed Pty Ltd (Summary Judgment Costs) [2025] FCA 1447, a Federal Court of Australia decision delivered by Downes J on 21 November 2025. The orders were made in proceeding QUD 196 of 2024.

The reasons deal specifically with costs of a summary judgment application. They should not be read as a complete account of the underlying patent infringement and royalty dispute or as a final ruling on those substantive issues.