Green Cabs Limited v Naidu - [2014] NZHC 2749

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002177 [2014] NZHC 2749

BETWEEN
GREEN CABS LIMITED

Plaintiff

AND

PARSHU RAM NAIDU First Defendant

SMART CABS LIMITED Second Defendant

Hearing: 5 November 2014

Appearances:

O Lund for Plaintiff
R Keenan for First Defendant
No appearance by or on behalf of Second Defendant

Judgment:

5 November 2014

ORAL JUDGMENT OF WOOLFORD J

Solicitors: Duncan Cotterill, Barristers & Solicitors, PO Box 10-376, Wellington 6143
Liberty Law Chambers, PO Box 28161, Remuera, Auckland 1541
David Rice & Associates, PO Box 72266, Papakura, Auckland 2244

GREEN CABS LIMITED v PARSHU RAM NAIDU [2014] NZHC 2749 [5 November 2014]

Introduction

[1] The plaintiff, Green Cabs Limited (Green Cabs), applies for an interim injunction prior to trial against Parshu Ram Naidu (Mr Naidu), a former independent contractor to Green Cabs, and Smart Cabs Limited (Smart Cabs), to whom Mr Naidu is currently contracted. The following orders are sought:

(a) Mr Naidu is to repaint his vehicle within one month in a colour that is not associated with Green Cabs;

(b)Mr Naidu is to refrain from driving his vehicle as a taxi until such repaint has taken place;

(c) Smart Cabs is to be prohibited from allowing Mr Naidu to drive the vehicle as a taxi for Smart Cabs until Mr Naidu has repainted the vehicle; and

(d)Mr Naidu and Smart Cabs are to pay Green Cabs the costs of this application in such proportions as the Court thinks fit.

Factual background

[2] Mr Naidu was a taxi driver contracted by Green Cabs under an independent driver’s contract dated 14 May 2012. The contract contained a clause that required him, on termination of the contract with Green Cabs, to remove any identification that in any way associated him with Green Cabs and to change his vehicle colour.

[3] While an independent contractor to Green Cabs, Mr Naidu drove a Toyota Camry hybrid motor vehicle, registration GGJ30. It was painted in Green Cabs’ distinctive green paint, Pantone 368C.

[4] Mr Naidu resigned from Green Cabs and his contract was terminated on

18 October 2012. Mr Naidu told the Auckland Operations Manager for Green Cabs that he would repaint his vehicle in the week following the termination of his contract.

[5] On 29 October 2012, Mr Naidu was seen operating his vehicle at a taxi rank near the Viaduct Harbour in Auckland. He had removed the Green Cabs signage and identification from his vehicle, but it was still painted green. He was driving for Sail Taxis Limited (Sail Taxis) and there was an A3 sized magnetic sticker on the driver’s door with the triangular logo of Sail Taxis.

[6] On 7 November 2012, Green Cabs sent Mr Naidu a letter giving him seven days to repaint his vehicle. On 27 November 2012, the solicitors acting for Green Cabs sent cease and desist letters to Mr Naidu and Sail Taxis.

[7] No further action was taken by Green Cabs at the time because in December

2012 Mr Naidu was convicted…

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: [2014] NZHC 2749
Decision Date: 5 November 2014

CaseChat Overview and Summary

Green Cabs Limited sought an interim injunction against Parshu Ram Naidu, a former contractor and Smart Cabs Limited, to whom Naidu is currently contracted. Green Cabs sought orders for Naidu to repaint his vehicle, which was painted in a green colour associated with Green Cabs, and to refrain from driving his vehicle as a taxi until it was repainted. The court considered the legal test for granting an interim injunction, which required a serious question to be tried, a favourable balance of convenience, and overall justice. The court was unpersuaded by Naidu's claims to have repainted his vehicle, as it remained in a green colour almost indistinguishable from that of Green Cabs. The court held that damages would not be an adequate remedy for Green Cabs, as the green colour of Naidu's vehicle was a significant point of difference between Green Cabs and other taxi companies, and its continued use could cause diversion of trade, damage to reputation, and dilution of brand. The court granted the interim injunction in the terms that Naidu was prohibited from operating his vehicle as a commercial passenger vehicle until it was repainted a different shade of green or any other colour that was acceptable to Green Cabs.

The court held that no order was made against Smart Cabs, who had chosen not to take any part in these proceedings. The court reserved costs and invited Green Cabs to file a memorandum if they wished to pursue them.

Orders