Collins v Dalgana Pty Limited HC Auckland CIV 2006-404-3523

[2007] NZHC 1864

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2006-404-3523

UNDER  The Patents Act 1953

IN THE MATTER OF     Infringement of New Zealand Letters

Patent No. 328961

BETWEEN  NICHOLAS ROBERT COLLINS Plaintiff

ANDDALGANA PTY LIMITED First Defendant

ANDMSA (AUST) PTY LIMITED Second Defendant

ANDCRANE DISTRIBUTION NZ LIMITED Third Defendant

ANDHAVERSTOCK SAFETY & ENVIRONMENTAL LIMITED Fourth Defendant

Hearing:         15 June 2007

Appearances: A McDonald for Plaintiff

G Hazel for First Defendant

Judgment:      19 June 2007 at 2.30 pm

RESERVED COSTS JUDGMENT OF ASSOCIATE JUDGE SARGISSON

Solicitors:

Daniel Overton & Goulding, PO Box 13 017, Onehunga, Auckland

Bell Gully, PO Box 4199, Auckland

Baldwins, PO Box 5999, Wellesley Street, Auckland

NR COLLINS V DALGANA PTY LIMITED AND ORS HC AK CIV2006-404-3523  19 June 2007

[1]      There is an outstanding costs issue on the first defendant’s application for particulars which was listed for hearing in the chambers list last Friday.  I heard from both counsel at that time and indicated my preliminary view.   I indicated I would reflect on their submissions before issuing my decision.

Decision

[2]      Under the statutory costs regime the presumption  is that the plaintiff should have costs as it was the successful party.

[3]      Counsel are agreed that any costs award should be on a 2B basis but they disagree on the question whether there should be a costs award.  The plaintiff seeks costs.  The first defendant contends that costs should lie where they fall.

[4]      At the hearing Mr Hazel relied on two grounds for the contention that costs should lie where they fall:

a)      First, that the application was brought reasonably, because of the mandatory wording of r 725ZK.

b)Second, the plaintiff was requested on several occasions to provide a unified set of particulars of breaches in accordance with the rules and it was not until the hearing that counsel for the plaintiff clarified specifically what documents contain the particulars of breaches he relies on.

[5]      I accept that the first defendant acted reasonably in raising r 725ZK as a ground for seeking particulars of at least one instance of infringement.  However, for reasons given in my judgment the application failed and I am not persuaded the plaintiff should be deprived of costs because the first defendant had a reasonably arguable ground for its application.

[6]      I do accept that the first defendant’s second ground warrants at least some modest adjustment to a costs award as it was not until the hearing that the plaintiff made quite clear what documents contain the particulars he now relies on, and I

think the first defendant was entitled to seek clarification in its application.   The point might have been resolved well before the hearing had the first defendant’s own application been clearer but the plaintiff nevertheless bears some responsibility for the ongoing confusion.

[7]      In the circumstances I take the view that the plaintiff should have reduced costs.

[8]      Accordingly I make an order for costs against the first defendant on the application in favour of the plaintiff.   Costs are to be assessed at 75% of costs calculated on a 2B basis.   The first defendant is also to pay disbursements on the application, as fixed by the Registrar.

Dated at Auckland on at am/pm.

Associate Judge Sargisson