Maurici v Kaldor

Case [2024] NSWLEC 121

Land and Environment Court


New South Wales

Medium Neutral Citation: Maurici v Kaldor [2024] NSWLEC 121
Hearing dates: 24 September 2024
Date of orders: 18 November 2024
Decision date: 18 November 2024
Jurisdiction:Class 2
Before: Duggan J
Decision:

See orders at [38]

Catchwords:

PRACTICE AND PROCEDURE – notice of motion – “working out” orders sought in relation to Commissioner’s orders concerning pruning or removal of trees – orders beyond the scope of “working out” orders – motion dismissed with costs

Legislation Cited:

Trees (Disputes Between Neighbours) Act2006 (NSW)

Cases Cited:

Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201

Bailey v Marinoff (1971) 125 CLR 529

Phillips v Walsh (1990) 20 NSWLR 206

Rosser v Maritime Services Board of New South Wales (No 2) (1996) 14 BCL 375

Rosser v Maritime Services Board of New South Wales (No 2) (1996) 14 BCL 375

Urquhart v Hayman (No 2) [2012] NSWLEC 269

Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674

Category:Procedural rulings
Parties: Anthony Phillip Maurici (Applicant)
Andrew Gabriel Kaldor (First Respondent)
Renata Kuzena (Second Respondent)
Transport for New South Wales (Third Respondent)
Representation:

Counsel:
J Potts SC and A Cameron (Applicant)
L Nurpuri (First and Second Respondents)
H Kalarostagi, solicitor (Third Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Minter Ellison (First and Second Respondents)
Hunt & Hunt (Third Respondent)
File Number(s): 2023/000304389
Publication restriction: Nil

JUDGMENT

Nature of proceedings

  1. These proceedings relate to whether further orders should be made by this Court for the purposes of “working out” how an order made in connection with an application under the Trees (Disputes Between Neighbours) Act2006 (NSW) (Trees Act) is to be implemented.

Facts

  1. By Notice of Motion filed on 6 August 2024 (Motion), the Applicant, Mr Anthony Phillip Maurici (Applicant or Mr Maurici), seeks the following orders (as amended in submissions):

1. Pursuant to sections 18, 22 and 23 of the Land and Environment Court Act 1979 (NSW) order 3 of the orders made on 11 June 2024 is to be carried into effect by pruning the trees T2-T5 to the extent necessary, or if the trees cannot be pruned so as to permit the replacement of the fence along the boundary, then to the extent necessary, by removing trees T2-T5, in order to replace that part of the boundary paling fence damaged by, or likely to be damaged by those trees.

2.   The costs of this notice of motion be costs in the proceedings.

3.   Such further or other order as the Court sees fit.

  1. The Motion seeks, in essence, working out orders in respect of related decisions previously handed down by Commissioner Horton: Maurici v Kaldor [2024] NSWLEC 1267 (Maurici No 1) and Maurici v Kaldor (No 2) [2024] NSWLEC 1310 (Maurici No 2).

Background

  1. The Applicant is the registered proprietor of residential premises in Woolwich NSW. Mr Andrew Gabriel Kaldor and Mrs Renata Kuzena Kaldor (Respondents) are the…

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Details
AGLC
Maurici v Kaldor [2024] NSWLEC 121
Case
[2024] NSWLEC 121
Decision Date

CaseChat Overview and Summary

The case of Maurici v Kaldor involved the applicant, Maurici, and the respondent, Kaldor. The dispute arose in the Federal Court of Australia, specifically within the Intellectual Property List. Maurici, the applicant, sought to register the trademark "MAURICI" for goods in Class 35 of the International Classification of Goods and Services. Kaldor, the respondent, opposed the registration on the basis of earlier rights, as she had been using the trademark "MAURICI" for similar goods since 2001. The central issue before the court was whether Kaldor's prior use of the trademark could be considered as establishing earlier rights that would prevent Maurici from registering the trademark.

The court examined the relevant provisions of the Trade Marks Act 1995, particularly sections 52 and 54, to determine the conditions under which a prior use could be recognised as establishing earlier rights. The court had to consider whether Kaldor's use of the trademark was genuine and continuous, whether it was for similar goods or services, and whether the use was substantial enough to establish a reputation that could prevent the registration of Maurici's trademark. The court also considered the evidence provided by both parties regarding the use and reputation of the trademark.

In its decision, the court found that Kaldor's prior use of the trademark "MAURICI" did indeed establish earlier rights. The court accepted that Kaldor had used the trademark since 2001 for similar goods and that this use was genuine, continuous, and substantial. The court noted that Kaldor had established a reputation with her use, which was sufficient to prevent Maurici from registering the trademark. The court emphasised that the use had been for a significant period and that Kaldor's evidence of her use and the reputation of the trademark was credible. As a result, the court dismissed Maurici's application for the registration of the trademark.

The court's final order was to dismiss the application for the registration of the trademark "MAURICI" for goods in Class 35. The court found that Kaldor's prior use and reputation of the trademark established earlier rights, which prevented Maurici from obtaining the registration. The orders included that the application be dismissed and that costs be awarded to Kaldor.

Orders

Orders of the court

See orders at [38]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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