Koolfoam Industries Limited v Bath HC Auckland CIV 2007-404-004554

[2008] NZHC 2397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-004554

BETWEEN  KOOLFOAM INDUSTRIES LIMITED Plaintiff

ANDKULWINDER BATH First Defendant

ANDEPS FOAM (NZ) LIMITED Second Defendant

Hearing:         2 July 2008

Appearances: Ms D M Law for the Plaintiff

Mr B M Cunningham for First and Second Defendants

Judgment:      3 July 2008 at 12.00pm

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 3 July 2008 at 12.00pm

pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors/Counsel:

Wood Ruck Manukau, P O Box 76 014, Manukau City

Paramjit Singh, P O Box 76 323, Manukau City

Mr B M Cunningham, P O Box 3599, Shortland Street, Auckland

KOOLFOAM INDUSTRIES LTD V K BATH AND ANOR HC AK CIV 2007-404-004554  3 July 2008

[1]      These proceedings were commenced in July 2007.   It was alleged in the initial statement of claim that Mr Bath, the first defendant, while employed by the plaintiff, and in breach of duties of good faith and confidentiality owed by him to the plaintiff, set up a business through the second defendant in competition with the plaintiff.  It was alleged that there was a breach of the duty of good faith, a breach of the  obligation  of  confidentiality  contained  in  an  employment  agreement,  and  a breach of confidence.  An account of profits was sought, as well as delivery of the plaintiff’s confidential information, and an injunction restraining the first and second defendants from using that information.

[2]      An Anton Piller order was made by Priestley J on 30 July 2007.  Thereafter, timetables were put in place to bring the matter on for a hearing.

[3]      An amended statement of claim was filed on 15 August 2007.  The plaintiff sought an interim injunction to prevent the defendants from using what it said was its confidential  information.    An  interim  injunction  was  granted  by  Andrews  J  on

26 October 2007, and an order was sealed on 6 November 2007. [4]  The substantive hearing is scheduled for 27 April 2009.

[5]      On 1 July 2008, the Court received a joint memorandum from counsel for the parties dated 30 June 2008.  It advised that the proceedings have been settled, and requested  that  the  Court  should  record  the  terms  of  settlement,  and  issue  an injunction in terms of an attached draft order.

[6]      Although they are in the same terms, it is necessary to first discharge the interim injunction granted by Andrews J on 26 October 2007 before replacing it with the final order of the Court and an order is made to this end.   Further, and by consent, the Court orders that an injunction is issued in the terms attached to this judgment, such injunction to remain in place for a term of three years as from the date of this order.

[7]      The settlement agreed between the parties requires the defendants to pay a sum to the plaintiff by a series of staged payments, with the last payment falling due

on 1 March 2009.  The parties requested that the proceedings should be adjourned sine die pending implementation of the terms of settlement.  It is not appropriate to adjourn the proceedings sine die.  Rather they are adjourned for call before the Duty Judge in the week commencing 2 March 2009.  In the event that settlement has been implemented prior to the matter being called before the Duty Judge, a notice of discontinuance can be filed and no appearance will be necessary.

[8]      The hearing set down for 27 April 2009 is vacated.

Wylie J