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New Zealand Insulators Ltd v ABB Ltd

New Zealand Insulators Ltd v ABB Ltd

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA215/06
BETWEENNEW ZEALAND INSULATORS LIMITED

Appellant

ANDABB LIMITED

First Respondent
ANDABB INDUSTRY PTE LIMITED

Second Respondent
ANDABB STOTZ-KONTAKT GMBH

Third Respondent

Hearing:13 November 2006

Court:Glazebrook, Robertson and Ellen France JJ
Counsel:J E Hodder and N S Wood for Appellant

A H Brown QC and A C Paterson for Respondents

Judgment:4 December 2006 at 4 pm

JUDGMENT OF THE COURT

ATHE APPEAL IS ALLOWED.

BThere will be a stay of all relief until the disposal of the pending appeal in this Court on the conditions set out in [56].
CCosts of $6,000 are awarded to the appellant, together with usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       This is an application for a stay of a judgment of Courtney J delivered in the High Court at Auckland CIV-2004-404-4829 on 20 September 2006 and varied on 27 October 2006, pending determination of a substantive appeal, which is unlikely to be heard until the middle of 2007.
Background
[2]       There was a month-long hearing before Courtney J at the end of 2005 about miniature circuit breakers (mcbs) which have been used in New Zealand since the 1970’s to replace rewireable fuses in switchboxes. Until early 2004, the New Zealand market was dominated by a product known as the S91 (which can loosely be described as an ABB product), a product designed and manufactured by the three respondents.
[3]       The appellant (NZI) was involved in the distribution, but at the end of 2003 their licence to do so was terminated. NZI decided to source its own mcbs and compete. It produced a copy of the S91 under its own brandname - Basemount (BM). BM products dominated the mcbs market until NZI’s ability to trade in the product was curtailed by the High Court.
[4]       The respondents alleged that, by manufacturing and marketing the BM mcbs, the appellant breached the Fair Trading Act 1986 and breached copyright.
[5]       The Judge concluded that NZI was liable under ss 9 and 10 of the Fair Trading Act 1986 for misrepresentations as to the commercial origin of the BM mcbs. A passing off claim failed. Courtney J found liability under the Fair Trading Act 1986 on the basis of a representation that the BM mcb was equivalent to S91 when in fact it did not comply with reg 69 of the Electricity Regulations 1997. She also found infringements in copyright.
[6]       The Judge ordered injunctive relief which after variation now provides:
(a)NZI shall cease having manufactured and cease importing, distributing and selling any miniature circuit breakers that:
(i)bear labelling that is deceptively or misleadingly similar to the labelling that the S91 bore before 1 January 2004 and that are packaged in blister wrapping or boxes that are deceptively or misleadingly similar to the blister wrapping or boxes in which the S91 was packaged before 1 January 2004;
(ii)incorporate any of the three components shown in ABB’s drawing GH S090 4501, GH 2090 4526 or GH…

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: [2006] NZCA 330
Decision Date: 4 December 2006

CaseChat Overview and Summary

New Zealand Insulators Limited (NZI) appealed against a judgment of Courtney J delivered in the High Court at Auckland, which found that NZI had breached the Fair Trading Act 1986 and infringed copyright. The respondents alleged that NZI manufactured and marketed miniature circuit breakers (mcbs) that were deceptively similar to their own product and that it was unsafe. The High Court issued injunctive relief, which NZI sought to have stayed pending appeal. The Court of Appeal had to decide whether to grant a stay of the injunctive relief pending the outcome of the substantive appeal. The appeal raised issues of the interpretation of the Fair Trading Act 1986, the Copyright Act 1994, and the assessment of safety concerns. The Court of Appeal held that the appeal was bona fide and that the right of appeal would probably be rendered nugatory if the judgment was not stayed. The Court found that safety considerations should not have been a critical factor in determining the stay application in this case, as statutory provisions enabled relevant public authorities to intervene to protect the public from unsafe products. The Court granted a stay of all relief on conditions, including that NZI would take steps to expedite the hearing of its appeal and repackage and relabel its products. The Court also awarded costs of $6,000 to the appellant, together with usual disbursements.

Orders