Aqua Technics Pool and Spa Centre NZ Limited v Aqua-Tech Industries Limited
[2006] NZCA 30
•13 March 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA257/05
BETWEENAQUA TECHNICS POOL AND SPA CENTRE NZ LIMITED
Applicant
ANDAQUA-TECH INDUSTRIES LIMITED
Respondent
Hearing:13 March 2006
Court:Glazebrook, Hammond and Cooper JJ
Counsel:D L Marriott for Applicant
K W McLeod and C A Tompkins for Respondent
Judgment:13 March 2006
JUDGMENT OF THE COURT
A. The application for special leave to appeal is granted.
B.The respondent will have costs of $750 and usual disbursements.
REASONS
(Given by Hammond J)
Introduction
[1] This is an application for special leave to appeal, in relation to a trade-mark proceeding, from a decision of Venning J in the High Court.
[2] The necessity for leave arises out of a solicitor’s error in service of the documents relating to the appeal which was unfortunately compounded by the recent changes to the rules of this Court. We are satisfied that that error was excusable and is of little moment in the context of the application.
[3] As to the merits of the application, Mr McLeod responsibly did not feel able to argue that the appeal would be entirely fruitless although he does strongly maintain that it is at best a thin appeal.
[4] It is undesirable that we should pronounce on that at this stage. We are satisfied that there are arguments which should be advanced to this Court, particularly in a matter of this kind which has public implications as to whether there is a trade-mark, and which could very well generate other litigation by way of infringement proceedings, in the background of the case as it were, if the substantive issue is not resolved on this appeal.
[5] In the circumstances, the leave sought is granted. The respondent will have costs of $750 and usual disbursements, the respondent having been put to the trouble of filing a notice of opposition and appearing today.
Solicitors:
A J Park, Auckland for Applicant
James & Wells, Auckland for Respondent
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