Australasian Conference Association Limited v A Little Bit of Britain Limited

[2017] NZHC 2684

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000526 [2017] NZHC 2684

UNDER

the Trademarks Act 2002

BETWEEN

AUSTRALASIAN CONFERENCE ASSOCIATION LIMITED

First Plaintiff

NEW ZEALAND CONFERENCE ASSOCIATION

Second Plaintiff

NEW ZEALAND HEALTH ASSOCIATION LIMITED Third Plaintiff

AND

A LITTLE BIT OF BRITAIN LIMITED First Defendant

LISA ELIZABETH WILSON Second Defendant

THE CHIEF EXECUTIVE OF THE NEW ZEALAND CUSTOMS SERVICE

Person required to be served

Hearing:	2 November 2017 (Determined on the papers)
Counsel:	S E Eden for Plaintiffs K T Glover for Defendants
Judgment:	2 November 2017

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      The plaintiffs have withdrawn an application for summary judgment which

was scheduled to be heard by the Court on 29 November.  The defendants ask for an

AUSTRALASIAN CONFERENCE ASSOCIATION LTD v A LITTLE BIT OF BRITAIN LTD [2017] NZHC

2684 [2 November 2017]

order that the plaintiffs pay their costs.   The plaintiffs say that costs should be reserved.

[2]      The defendants say they were put to the cost and inconvenience of preparing a notice of opposition and affidavit, that they put the plaintiffs on notice that they would seek costs if their defence of the application was successful, and that the plaintiffs  had  an  opportunity  to  withdraw  the  application  before  a  notice  of opposition and affidavit were filed, because they were on written notice that the application would be opposed.

[3]      The plaintiffs say that they did not withdraw the application on the basis that there was an arguable defence.   Rather, they now consider it preferable for the proceeding  to  go  to  trial,  there  being  arguments  in  relation  to  s  153  of  the Trademarks Act 2002, and in relation to sales for infringing goods in terms of s 89.

[4]      I have considered the proceeding and the submissions made by counsel. As a matter of general practice it is preferable for costs to be determined after resolution of the substantive proceeding, where a summary judgment application is unsuccessful.  Here, that is not the case but in my opinion the same principle should apply.  There are plainly arguments both ways in relation to the issues raised in this case and in my opinion costs should be determined when the answer of the Court has been given on those issues.

[5]      Counsel  for the defendants  noted and  relied  on  the decision  in  Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd,1  a case in which the plaintiff withdrew an application for summary judgment and the Court awarded costs against it.  That case, however, is plainly distinguishable.  There was clear fault on the part of the plaintiff in issuing summary judgment in the first place for all the reasons set out at some length in the judgment.  That is not the position in

the present case.

1      Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd [2016] NZHC

1244.

[6]      Costs are reserved.

J G Matthews

Associate Judge

Solicitors:

Shieff Angland, Auckland
Rachel Colley, Auckland

Crown Law, Wellington