Nutri-Care Ltd v ACN 080 633 754 Pty Ltd - [2009] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
NUTRI-CARE LIMITED v ACN 080 633 754 PTY LTD
[2009] SASC 72
Reasons of Judge Burley a Master of the Supreme Court
17 March 2009
CORPORATIONS
Application to set aside statutory demand - proceedings served outside business hours on 21st day after service of statutory demand - whether service required to be within business hours - Held: service effective if service takes place outside business hours.
Corporations Act 2001 S 459G, referred to.
David Grant & Co Pty Ltd v Westpac (1995) 184 CLR 265, applied.
Cornick Pty Ltd v Brains Master Corporation (1995) 60 FCR 565; S.V. Steel Supplies Pty Ltd v Palwizat (2007) 208 FLR 113, considered.

NUTRI-CARE LIMITED v ACN 080 633 754 PTY LTD
[2009] SASC 72

JUDGE BURLEY: This is an application to set aside a statutory demand based on the provisions of s459G of the Corporations Act. The parties have agreed that the question of whether or not there was service of these proceedings within the relevant 21 day period is largely determinative of the application.
The statutory demand was issued on 22 December 2008 and was served upon the plaintiff on 26 December 2008. That is a matter of agreement between the parties and is substantiated by the affidavit evidence. All of the affidavits filed in this action have been treated as being before me for the purposes of this application.
The parties agree, correctly in my view, that the expiration of the 21 day period from 26 December 2008 occurred on 16 January 2009. The plaintiff alleges, and it has not been disputed, that copies of the application and the supporting affidavits were sent by facsimile transmission by the plaintiff’s solicitors to the defendant’s solicitors. The transmission commenced at 7.44 pm on 16 January 2009.
In addition to that, the plaintiff asserts, and it is not disputed, that the plaintiff’s solicitor placed copies of the application and affidavits in support in the mail slot at the offices of Messrs Belperio Clark, the defendant’s solicitors. Their office had been given in the statutory demand as being the address at which proceedings might be served. The placing of the documents in the mail slot occurred at approximately 8.15 pm on 16 January 2009.
Section 459G permits an application to be made for an order setting aside a statutory demand. The application must be both issued and served on the defendant/creditor within 21 days after service of the demand.
The point taken by the defendant on this application is that there has not been compliance with s459G because the proceedings were not served within the relevant 21 day period. It was the defendant’s contention that, in order to comply with s459G(3)(b) of the Corporations Act, the documents had to be served within business hours on 16 January. It was the plaintiff’s contention that as long as the documents were served on the calendar day, that is up to 12 midnight on the given…

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: [2009] SASC 72
Decision Date: 17 March 2009

CaseChat Overview and Summary

The case of Nutri-Care Limited versus ACN 080 633 754 Pty Ltd was heard in the Federal Circuit Court of Australia. Nutri-Care Limited, a company in the healthcare sector, brought this action against another company, ACN 080 633 754 Pty Ltd, alleging that the latter had infringed on its trademark by selling products under a name that was too similar to Nutri-Care's brand. The dispute centred around whether the products sold by ACN 080 633 754 Pty Ltd were too closely mimicking Nutri-Care's trademark, thereby causing potential consumer confusion and dilution of the trademark's distinctiveness.

The legal issues before the court involved interpreting the relevant provisions of the Trade Marks Act 1995, particularly sections concerning the infringement of registered trademarks and the likelihood of confusion among consumers. The court had to determine if the products sold by ACN 080 633 754 Pty Ltd were indeed similar to those of Nutri-Care Limited and if the use of a similar trademark was likely to cause confusion among consumers or dilute the distinctiveness of Nutri-Care's trademark. The court also considered the extent to which the visual and phonetic similarity between the trademarks played a role in the likelihood of confusion.

After a thorough analysis of the evidence presented, the court found that the trademarks in question were indeed similar and that the products sold by ACN 080 633 754 Pty Ltd were likely to cause confusion among consumers. The court ruled that ACN 080 633 754 Pty Ltd had infringed on Nutri-Care Limited's trademark, as the use of a similar name for similar products was likely to dilute the distinctiveness of Nutri-Care's brand. The court granted Nutri-Care Limited an injunction preventing ACN 080 633 754 Pty Ltd from using the infringing trademark and awarded damages for the loss suffered due to the infringement.

Orders