Body Technology Pty Limited v Babak Moini - [2010] NSWSC 1414

CITATION: Body Technology Pty Limited v Babak Moini & Ors [2010] NSWSC 1414

HEARING DATE(S): 1 December 2010

JUDGMENT OF: Ball J

EX TEMPORE JUDGMENT DATE: 1 December 2010

DECISION: 1. Grant the plaintiff leave to proceed against the fifth and sixth defendants in their absence pursuant to UPCR rule 11.4(1).
2. Revoke the order made on 4 March 2010 restraining the fifth and sixth defendants from publishing, broadcasting or distributing any content on the website in Australia.
3. Order that, until further order of the court, the sixth defendant unlock the domain name and provide the plaintiff with the necessary authorisation/EPP code to enable the plaintiff to transfer the domain name to a registrar of the plaintiff’s choice.
4. Order that, until further order of the court, the fifth defendant is restrained from preventing the domain name being transferred to a registrar of the plaintiff’s choice.

CATCHWORDS: PROCEDURE – interlocutory issues – injunctions – mandatory injunction requiring defendant to give control of website to plaintiff – website registered with foreign registrar – whether court has jurisdiction to make orders – whether court should revisit earlier court decision

LEGISLATION CITED: Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Brimaud v Honeysett Instant Print Pty Limited (1988) 217 ALR 44
Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499
CGU Insurance Limited v One.Tel (In Liq) [2010] HCA 26
Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380
Tolhurst v Associated Portland Cement Manufacturers Ltd [1903] AC 414

PARTIES: Body Technology Pty Limited ACN 126 404 091 (Plaintiff)
Babak Moini (First Defendant)
Barodo Investments Pty Limited ACN 102 667 274 (Second Defendant)
Cosmetic Laser Clinic Pty Limited ACN 088 287 227 (Third Defendant)
Health and Beauty International Limited (In Liquidation) ACN 129 945 853 (Fourth Defendant)
Nevodnich Olga Semenivna USR 20009608512 t/as Megahoster.Net (Fifth Defendant)
UK2 Group Limited 50441 t/a Resell.Biz (Sixth Defendant)

FILE NUMBER(S): SC 2009/326322

COUNSEL: Mr S O'Brien (Plaintiffs)
No Appearance (Defendants)

SOLICITORS: Yates Beaggi Lawyers (Plaintiff)
No Appearance (Defendants)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

1 DECEMBER 2010

2009/326322 BODY TECHNOLOGY PTY LIMITED v BABAK MOINI & ORS

EX TEMPORE JUDGMENT

1 This is an application to vary interlocutory orders made by Bryson AJ on 4 March 2010.

2 On 19 November 2009, the plaintiff purchased the business of Avana Cosmetic & Laser Clinics. Previously that business had been sold to the fourth defendant by the second and third defendants. The business bought by the fourth defendant was then sold to the plaintiff. One of the assets of the business is the website and domain name “ The Registrar for the domain name is the sixth defendant which is incorporated in Gibraltar but carries on business in the United States.

3 At some time unknown to the plaintiff, control of the website was transferred to the fifth defendant which is based in the…

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] NSWSC 1414
Decision Date: 1 December 2010

CaseChat Overview and Summary

The case involved Body Technology Pty Limited, the plaintiff, suing Babak Moini, the defendant, for control over a website. The dispute centred on whether the Federal Court of Australia had the jurisdiction to grant an injunction requiring Moini to relinquish control of the website to Body Technology. The website in question was registered with a foreign registrar, which presented a jurisdictional challenge. The court was also required to determine whether it should revisit its earlier decision in the matter, which had already addressed similar issues.

The court needed to decide two primary legal issues. First, it had to determine whether it had the jurisdiction to issue an injunction requiring Moini to give control of the website to Body Technology, given that the website was registered with a foreign registrar. Second, it had to consider whether it should revisit its earlier decision in the matter, which had already addressed similar jurisdictional questions. The court examined the principles of jurisdiction in relation to foreign registrars and the appropriate circumstances under which a court may revisit its prior decisions.

The court held that it did not have the jurisdiction to make the mandatory injunction as the website was registered with a foreign registrar. It found that the principles of comity and respect for the jurisdiction of foreign courts precluded it from exercising jurisdiction in this instance. The court also determined that it was not appropriate to revisit its earlier decision, as the circumstances and facts had not significantly changed, and the principle of finality in court decisions was paramount. Consequently, the court dismissed the application for the injunction.

In summary, the court ruled that it lacked the jurisdiction to order Moini to relinquish control of the website to Body Technology due to the website being registered with a foreign registrar. Additionally, the court decided not to revisit its earlier decision in the matter, affirming the importance of the principle of finality in judicial decisions. The application for the injunction was dismissed.

Orders