Oraka Technologies Ltd v Geostel Vision Ltd - [2019] NZHC 1325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2005-419-000809

[2019] NZHC 1325

BETWEEN
ORAKA TECHNOLOGIES LIMITED

First Plaintiff

ORAKA GRADERS LIMITED
Second Plaintiff

MICHAEL WILLIAM SCHWARZ
Third Plaintiff

AND

GEOSTEL VISION LIMITED

First Defendant

PAUL DAYNES AND GORDON ROBERTSON

Second Defendants

NAPIER TOOL & DIE CO LIMITED

Third Defendant

On the papers

Judgment:

12 June 2019

JUDGMENT OF HINTON J

[Interest and Costs]

This judgment was delivered by me on 12 June 2019 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel:
Brian Henry, Barrister, Auckland Kevin Glover, Barrister, Auckland
Philip Skelton Queens Counsel, Auckland

ORAKA TECHNOLOGIES LIMITED v GEOSTEL VISION LIMITED [2019] NZHC 1325 [12 June 2019]

[1]On 23 April 2018, I gave judgment for the first plaintiff in the sum of $510,000.

[2] A number of submissions were subsequently filed with regard to interest and costs. Unfortunately, these were not brought to my attention until recently, when I was away on sabbatical. In fact, I had considered that counsel were holding off in light of the further appeal filed in the Court of Appeal. I have now addressed these issues at the earliest opportunity.

Interest

[3] The judgment sum of $510,000 was for notional licence fees for infringement of copyright from mid-2001 to mid-2009.

[4] Interest should be at the Judicature Act rate. I do not agree with the first plaintiff that a notional contractual rate should apply, effectively carrying over from the concept of a notional licence fee, or that I should take a generous view of the start date for that reason. There is no support for that approach in the authorities. In fact, the notional licence fee cases which have considered interest, seem to have consistently taken the standard approach of interest at Judicature Act rates (or the equivalent). None of the exceptions to that general approach is applicable.

[5] For the same reasons, I also do not agree that interest should be compounded, or calculated in a way that has a compounding effect.

[6] In terms of the commencement date for the interest calculation, I consider that interest should run on the full judgment sum from the mid-point of the breach period, which I fix at 1 May 2005. I take that approach because in effect there were individual breaches running from mid-2001 to March 2009. As the defendants acknowledge, I do not have information as to the number of cup assemblies produced during each year. By taking a mid-point of the breach period, I am allowing in a rough and ready way for interest to run from the date of breach in each case. I note that counsel for the first and second defendants responsibly accepts that this is one possible approach to interest.

[7] I do not agree with the defendants that interest should run only from when proceedings were issued or from the date of judgment, or from any date later than 1 May…

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: [2019] NZHC 1325
Decision Date: 12 June 2019

CaseChat Overview and Summary

In Oraka Technologies Limited v Geostel Vision Limited, the High Court of New Zealand addressed issues of interest and costs related to a copyright infringement case. The first plaintiff, Oraka Technologies Limited, had previously been awarded $510,000 in notional licence fees for copyright infringement from mid-2001 to mid-2009. The court considered arguments from both sides regarding the appropriate rate and calculation method for interest on the judgment sum. The defendants argued for a notional contractual rate or a later commencement date for interest, while the plaintiff sought interest at the Judicature Act rate from the midpoint of the breach period. The court rejected the defendants' arguments and ruled that interest should be calculated at the Judicature Act rate from 1 May 2005, the midpoint of the breach period.

The court also addressed the issue of costs for the 2017 hearing, ruling that the plaintiff was entitled to costs on a category 2 band B basis, as the proceeding was consistently treated in that way. The court found that the plaintiff was entitled to all reasonable disbursements for the 2017 hearing, with some adjustments for excessive fees and excluded charges. Regarding the 2016 hearing, the court found that the plaintiff's costs claim was unjustified, and the third defendant was awarded costs and disbursements for that hearing. The court also directed that the first and second defendants' costs, as subsequently ordered by the Court of Appeal and Supreme Court, be paid to the plaintiff as soon as possible.

Orders