Flujo Holdings Pty Limited v Merisant Company

[2016] NZHC 2790

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001019 [2016] NZHC 2790

BETWEEN

FLUJO HOLDINGS PTY LIMITED

Plaintiff

AND

MERISANT COMPANY First Defendant

MERISANT AUSTRALIA PTY LIMITED

Second Defendant

SUGAR AUSTRALIA PTY LIMITED Third Defendant

NEW ZEALAND CANE SUGAR COMPANY LIMITED

Fourth Defendant

Hearing:	On the papers
Judgment:	22 November 2016

JUDGMENT OF COURTNEY J

This judgment was delivered by Courtney J

on 22 November 2016 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

FLUJO HOLDINGS PTY LTD v MERISANT COMPANY [2016] NZHC 2790 [22 November 2016]

[1]      In my decision of 2 August 2016 I declined an application by the plaintiff, Flujo Holdings Pty Ltd, for interim relief in respect of the “Naturals” sweetener packaging being used by the defendants, whom I refer to collectively as Merisant. Merisant seeks costs on the injunction application.  Flujo resists and seeks to have costs reserved pending determination of the substantive proceedings.

[2]      Rule 14.8 of the High Court Rules provides that, on an opposed interlocutory application, costs are to be fixed when the application is determined and payable when they are fixed, unless there are special reasons to the contrary.  Flujo asserts that there are special reasons, namely that the balance of convenience was found to weigh in its favour and that the evidence did show that it had lost sales and that Merisant had “sailed deliberately close to the wind when re-designing their packaging.”  Flujo’s perspective is that the outcome of the application reflected the inability of the Court to resolve conflicting evidence in the interlocutory context.

[3]      I do not accept that these are special reasons that justify reserving costs at this stage.  In terms of the evidence, the problem for Flujo was not so much a conflict of evidence but an absence of evidence necessary to show confusion in the market as a result of Merisant’s product.   It is true that the balance of convenience did favour Flujo.   But given the lack of a substantial evidential foundation to show a serious question to be tried, that fact could not justify interim relief and nor does it justify departing from r 14.8.

[4]      I do not, however, accept Merisant’s assertion that costs should be allowed on a combined 2B and 2C basis.   The affidavit evidence was of a nature and extent ordinarily found in applications of this kind.   There was no special urgency.   The matter was argued on established legal principles.    I consider that costs on a 2B basis which Merisant calculate at $7,379 is appropriate, together with disbursements

of $160.

P Courtney J