Burden v ESR Group (NZ) Ltd - [2015] NZHC 1649

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2456 [2015] NZHC 1649

UNDER
The Copyright Act 1994 and the Fair

Trading Act 1986

IN THE MATTER OF

Alleged infringement of copyright; and brach of the Fair Trading Act

BETWEEN

IAN JAMES BURDEN First Plaintiff

PLANTATION GROWN TIMBERS (INTERNATIONAL) LIMITED Second Plaintiff

PLANTATION GROWN TIMBERS (VIETNAM) LIMITED

Third Plaintiff

AND

ESR GROUP (NZ) LIMITED & ORS First Defendant

continued over

Hearing:
10 June 2015

Further submissions received on 19 and 20 June and 3 July
2015

Counsel:

G Hazel and S P Rosanowski for the Plaintiffs
A J Pietras for the First to Fourth Defendants
Appearance of Fifth Defendant excused (abiding decision)

Judgment:

14 July 2015

RESERVED JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 14 July 2015 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

BURDEN & ORS v ESR GROUP (NZ) LIMITED & ORS [2015] NZHC 1649 [14 July 2015]

MORROW MARKETING MANAGEMENT LIMITED Second Defendant

CRAIG MORROW Third Defendant

GALAXY HOME (VIETNAM) LIMITED Fourth Defendant

CHIEF EXECUTIVE OF NEW ZEALAND CUSTOMS
Fifth Defendant

ESR GROUP (NZ) LIMITED Counterclaim Plaintiff

IAN JAMES BURDEN
First Counterclaim Defendant

PLANTATION GROWN TIMBERS (INTERNATIONAL) LIMITED Second Counterclaim Defendant

CHIEF EXECUTIVE OF NEW ZEALAND CUSTOMS
Third Counterclaim Defendant

Counsel/Solicitors:
G Hazel, James and Wells, Auckland
S P Rosanowski, James and Wells, Auckland
A J Pietras, A J Pietras & Co, Lower Hutt
P Courtney, Crown Law, Wellington

Introduction

[1] The first defendant ESR Group (NZ) Limited (ESR) seeks an order under s 141(2) of the Copyright Act 1994 (the Act) for the release of various shipments of furniture detained by New Zealand Customs Service (Customs) between July 2014 and October 2014.

[2] The application is brought by ESR as an interlocutory one in the context of proceedings initiated by the first, second and third plaintiffs immediately after detention of the items. Those proceedings, in which ownership and authorship of the relevant works is directly in issue, have been set down for a three week trial commencing on 7 September 2015.

Background facts

The parties

[3] The plaintiffs are in the business of designing, producing and exporting household furniture to North America, Europe, Australia and New Zealand. The first plaintiff is Mr Burden. He is an Australian citizen who resides partly in Australia and partly in Vietnam. He is the Managing Director of the second and third plaintiffs. The second plaintiff is registered in the British Virgin Islands (BVI) and the third is registered in Vietnam.

[4] The first four defendants are in the business of producing, importing and selling furniture. ESR is registered in Auckland and carries on business as a furniture importer and retailer. The second defendant is registered in the BVI and is a furniture supplier. The third defendant is Mr Morrow, an Australian citizen residing in Vietnam. He is a former employee of the first and third plaintiffs. The fourth defendant is a wholly owned subsidiary of the second…

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: [2015] NZHC 1649
Decision Date: 14 July 2015

CaseChat Overview and Summary

This case involved an application by ESR Group (NZ) Limited (ESR) for the release of shipments of furniture detained by New Zealand Customs Service (Customs) on the grounds that they were pirated copies of works in which Ian James Burden claims to own copyright. The plaintiffs, who are in the business of designing, producing and exporting household furniture, had commenced proceedings against the defendants for copyright infringement and breach of the Fair Trading Act 1986. The court had to decide whether the plaintiffs had a seriously arguable case and whether the s 136 notice was deficient. The court found that a seriously arguable case existed, as the plaintiffs’ basic proposition that copyright reposes in an Australian national who is capable of enforcing his rights in a New Zealand court, was not so completely untenable that ESR’s application should be resolved against the plaintiffs at this stage. The court also found that the s 136 notice was not deficient. The court declined to release the items of furniture on the basis that the case was not a foregone conclusion and that the balance of convenience favoured continued detention until the imminent trial. The court awarded costs to the plaintiffs on a 2B basis and reserved leave to ESR to bring its application on for hearing again if the plaintiffs failed to prosecute their proceedings diligently.

Orders