Fidelity National Information Services, Inc v Montoux Limited (in liq)
[2025] NZHC 2926
•3 October 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-242
[2025] NZHC 2926
UNDER the Copyright Act 1994 and the Fair Trading Act 1986 IN THE MATTER OF
copyright infringement, misuse of confidential information, inducing breach of contract, misleading conduct in trade, and conversion
BETWEEN
FIDELITY NATIONAL INFORMATION SERVICES, INC
First Plaintiff
FIS CAPITAL MARKETS UK LIMITED
Second PlaintiffAND
MONTOUX LIMITED (IN LIQ)
First Defendant
HEATH LESLIE GAIR as liquidator of MONTOUX LIMITED (IN LIQ)
Second Defendant
Hearing: 30 September 2025 Counsel:
B Carey and T Huthwaite for Plaintiffs J D Haig for Defendants
Judgment:
3 October 2025
INTERIM JUDGMENT OF GENDALL J
[Application to vary interim injunction order]
FIDELITY NATIONAL INFORMATION SERVICES, INC v MONTOUX LIMITED (IN LIQ) [2025] NZHC
2926 [3 October 2025]
Introduction
[1] The defendants (Montoux) have made an application dated 18 September 2025 to vary an injunction order (injunction order) made by me in this proceeding in judgments delivered on 29 August 2025 and reissued on 9 September 2025.
[2] The factual background to this matter is set out in my 9 September 2025 re- issued judgment at [1]–[20].1
[3]The variation and other orders sought in the present application are:
(a)Varying the interim injunction order (injunction order) in the judgment of Justice Gendall delivered on 29 August 2025 and re- issued on 9 September 2025 by amending:
(i)The scope of the injunction order at [79](b) of the judgment to delete the words “communicating, using and otherwise dealing with”.
(b)Staying the operation of the injunction orders in respect of the words “communicating, using and otherwise dealing with” pending the resolution of this application.
(c)Shortening the time for the plaintiffs to file and serve any opposition to this application to 24 hours.
(d)Costs.
[4] The liquidator of Montoux, Mr Gair, has filed an affidavit dated 18 September 2025 in support of the variation application. The plaintiffs (together FIS) oppose the application but have elected not to file any evidence in response, instead relying upon their evidence filed for the original injunction hearing.
Grounds
[5] The grounds put forward by counsel for Montoux to support the variation orders and a stay sought are set out in its application as follows:
1 Fidelity national Information Services Inc v Montoux Limited (In Liq) [2025] NZHC 2505 at [1]– [20].
Order (a) – variation of injunction order
(a)At the hearing of the plaintiffs’ interim interim injunction application on 16 May 2025 the Court was informed by counsel that Montoux Limited (in liq) (Montoux) was continuing to trade on a limited basis.
(b)By consent, an undertaking to preserve the position was recorded at [7](b) of La Hood J’s minute following the interim interim injunction hearing dated 20 May 2025 as:
“Mr Heath Leslie Gair, has undertaken to not advertise, publish, or sell the “Copyright Works” and the “Confidential Information” (as those terms are defined in the interim application) until 2 July 2025.”
(c)This undertaking continued in effect without causing any issue for the plaintiffs.
(d)Prior to the interim injunction hearing the liquidator of Montoux, Mr Gair, filed an affidavit dated 13 June 2025 in opposition to the interim injunction in which he stated at [10]:
“Currently, only two customers are still under contract with [Montoux], and only one of those customers is actively serviced. That was discussed at the last hearing in setting the terms of the undertaking I gave regarding the “Copyright Works” and the “Confidential Information”.”
(e)Montoux’s trading status was not specifically raised during the hearing by counsel or His Honour Gendall J. It was therefore overlooked.
(f)Following delivery of the judgment on 29 August 2025, the defendants urgently issued a recall application on 1 September 2025 regarding Montoux’s trading status having been overlooked at the hearing and therefore incorrectly recorded in the judgment.
(g)On 9 September 2025 the judgment was re-issued with new paragraphs [70], [71], [72] and [73] now recording Montoux’s trading status. However, the broad scope of the injunction order remained.
(h)As a result, the agreed terms of the undertaking sought by the plaintiffs and agreed by the defendants was on much narrower terms than the injunction order made in the judgment.
(i)As the trading status of Montoux was overlooked at the hearing a variation of the scope of the injunction order is urgently sought pursuant to the Court’s inherent jurisdiction.
(j)The balance of convenience strongly weighs in favour of the defendants. To do otherwise will substantially prejudice the defendants and its remaining customer:
(i)Montoux will lose an ongoing source of income with which to undertake the liquidation and defend these proceedings.
(ii)Montoux will be stuck with payment obligations to third party suppliers which are unrecoverable.
(iii)Montoux will be put at financial and legal risk from its customer due to breaching its obligations.
(iv)The customer will suffer prejudice in no longer being able to access to [sic] a lot of its own data.
(k)The plaintiffs on the other hand are not prejudiced.
(i)They consented to the terms of the original undertaking to protect their position which was in place for approximately three months with no issue.
(ii)The plaintiffs stated primary concern in bringing their interim injunction application was to prevent the sale of Montoux’s software to a third party. The variation sought does not disturb the prohibition on sale pending the disposition of the plaintiffs’ substantive claim.
Order (b) – stay pending resolution
(l)The variation order sought is urgent and delay in resolving it will substantially prejudice the defendants. Absent a stay the effect of the variation could be rendered nugatory.
(m)An order to stay the effect of the words sought to be removed from the injunction order is fair and reasonable in the circumstances.
Order (c) – shortening of time for opposition
(n)The defendants have communicated their need for the orders to be varied to the plaintiffs in advance of making this application and have sought the plaintiffs’ consent.
(o)The plaintiffs are not prejudiced by the shortening of time sought which is necessary due to the urgency for the application to be resolved.
(p)And upon the further grounds as set out in the affidavit of Heath Leslie Gair filed in support of this application.
[6] As I have noted, FIS opposes this variation application. The grounds upon which FIS oppose the application2 are set out in their notice of opposition dated 24 September 2025 as follows:
2 Notionally, FIS opposes only those orders sought in Montoux’s application noted at [3](a), (b), and (d) above, and it has advanced grounds of opposition only for these. There is no issue here over the timing of FIS’s opposition referred to in [3](c) above.
The interim injunction application was fully argued at initial hearing
4.1The Court heard full argument from the defendants on the plaintiffs’ injunction application on 6-7 August 2025:
(a)The defendants chose not to provide evidence on, or make submissions on, the proposed scope of the injunction order at the hearing, despite having opportunity to do so.
(b)In any event, the defendants have now made submissions on the scope of the injunction order in its recent, largely unsuccessful application to recall the judgment.
The Court has not overlooked any relevant points of evidence
4.2The defendants have not demonstrated that the Court has overlooked any relevant points of evidence.
4.3The Court has already considered the defendants’ recall application, and supporting affidavit, and reissued the judgment to make a minor factual correction.
No evidence of material changes in circumstances since the injunction order was made
4.4The defendants have not demonstrated any material change of circumstances since the injunction order was made, or since the recall application was determined.
No special circumstances which warrant a variation to the orders given
4.5The defendants have not demonstrated any special circumstances, and in particular:
(a)The defendants’ position, that they are suffering prejudice under the injunction order, is not a “special circumstance”;
(b)The Court considered the alleged prejudice to the defendants under the injunction order at both the original hearing and under the defendants’ largely unsuccessful application for recall.
The application is an abuse of process
4.6The application is an abuse of process:
(a)The defendants are using the application to relitigate its earlier, largely unsuccessful, recall application.
(b)The defendants did not file and serve their application within the five working day timeframe prescribed by High Court Rule 7.49(3)(a). The defendants now seek to circumvent the High Court Rules by asking the Court to vary the injunction order pursuant to its inherent jurisdiction (if such inherent jurisdiction exists).
(c)The application contains insufficient detail to inform the plaintiffs and the Court of the pleaded case.
(d)Despite the admonition at [72] of the reissued judgment, the defendants continue to refuse to provide sufficient detail or evidence regarding the nature and extent of its ongoing use and disclosure of the Copyright Works and Confidential Information (as defined in the plaintiffs’ application for interim injunction dated 6 May 2025), including refusal to provide detail and evidence on the following matters:
i.The full legal name of the alleged customer that the defendants continue to serve, potentially in breach of the injunction order;
ii.Details of the assets allegedly being used to service this customer;
iii.Details of what alleged services have been, and continue to be, provided to this customer, in addition to “access to the actuarial platform”;
iv.Names and details of the “third party suppliers and contractors” engaged by the second defendant to provide services;
v.Details of the “related or third-party commercial funding” that the second defendant has or will benefit from.
It is in the interests of justice for the judgment to stand as conclusive
4.7It is in the interests of justice for the injunction order to remain as originally ordered:
(a)Varying the orders would significantly prejudice the plaintiffs, who are not at fault:
i.The proposed orders would allow the defendants to continue to “communicate, use, or otherwise deal with” the Copyright Works and Confidential Information, including with the unspecified current customer, and with any number of persons or entities, potentially including competitors;
ii.The application signals further potential unlawful actions by the defendants, including unauthorised disclosure of the Copyright Works and Confidential Information to newly revealed and also unspecified “third party suppliers and contractors”;
iii.The proposed variation would force the plaintiffs to consider a possible new proceeding against any person or entity that has received communication of the Copyright Works or Confidential Information,
including the undisclosed customer, and third parties and contractors.
(b)It is in the public interest for the interim orders to stand as conclusive (subject to rights, if any, for the defendants to apply for leave to appeal) in order to preserve the principle of finality in litigation.
(c)It is not appropriate for a party to use an application to vary an injunction order to “improve” its case by presenting new arguments and new evidence that were not raised in the initial hearing when they could have been.
[7] Montoux’s 18 September 2025 application to vary the injunction order was supported by a new affidavit of Mr Gair dated 18 September 2025.
[8] In that affidavit, Mr Gair raised, I understand, for the first time, what he described as “…practical difficulties I am facing in trying to ensure reasonable compliance with the injunction order on its current terms”. On this, he deposed as follows:
[20] …since the making of the injunction order further serious concerns have arisen:
(a)I am legally obligated to pay the third-party suppliers to enable the level of service and access required by the (Montoux) customer. If Montoux NZ’s ability to service this customer ends, I will still have commercial obligations to cover further costs that are unrecoverable.
(b)Further, in simply cutting off the customer’s access, Montoux will be at legal and financial risk from a large multinational corporation who will no longer have access to a lot of its own and its customers’ data. I understand this data is required as part of the customer’s audit requirements.
[21] For the reasons outlined above I am in a very difficult position that now requires the Court’s assistance to resolve (and also forms the reason behind the stay being applied for pending determination of this application).
[9] As I see it, these matters raised by Mr Gair in his affidavit are new and may be seen to go some way towards constituting “special circumstances” here. Possible additional prejudice to the defendants of relevance to my proper consideration of the present variation application.
[10] To properly consider these issues, however, certain further information (much of which was earlier at issue between the parties) is required.
[11] As to this aspect, I now direct that within three working days of the date of this interim judgment, the defendants are to file and serve a confidential memorandum with the following information:
(a)The full legal name of the “current client” that the second defendant says he is servicing, together with details of who operates, manages and beneficially controls the business of this current client.
(b)Details of how the second defendant is “using the assets” to service the client including:
(i)the details of the “assets” being used by this client;
(ii)details of what services have been and continue to be provided to this client since the liquidation commenced and further details of any contract in place between the defendant or defendants and the client;
(iii)names and details of the persons who are allegedly providing the services to the client, irrespective of whether these persons are employees, contractors, or are engaged in some other capacity;
(iv)details of the “income stream” from the client that the defendants claim benefits the liquidation and its ongoing costs;
(v)details of how the use of the “assets” being used by Montoux’s client does or does not include any ongoing use of copyrighted software or confidential information of the plaintiffs.
[12] This information is to be strictly confidential to counsel for the plaintiffs and to myself only. Absent a proper order of this Court otherwise, following appropriate
argument, it is not to be disclosed to the plaintiffs, FIS, or any other party at this point, or subsequently.
[13] As I see the position, it is potentially necessary information for my proper consideration of Montoux’s variation application, and in any event, it is largely information which counsel for the defendants confirmed to counsel for the plaintiffs in his letter of 11 September 2025 at [5] that:
… The liquidator is willing to provide…(subject to confidentiality undertakings).
[14] When this confidential information is to hand and provided, then I make the following additional directions:
(a)Counsel for the plaintiffs is to have a period of two working days from the date of provision of the information to file and serve any memorandum he may wish relating to that new information.
(b)Counsel for the defendants is then to have a further two working days after the date of receipt of the memorandum from counsel for the plaintiffs to file and serve any memorandum he may wish in response.
[15] All that material is then to be referred to me for consideration and a substantive judgment in this matter will follow.
Gendall J
Solicitors:
A J Park, Wellington for Plaintiffs
Thomas Dewar Sziranyi Letts, Lower Hutt for Defendants
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