Pollen-Plus Limited v Znel Limited HC Tauranga CIV 2010-470-848

[2010] NZHC 1769

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2010-470-848

BETWEEN  POLLEN-PLUS LIMITED Plaintiff

ANDZNEL LIMITED First Defendant

ANDLENZ EQUIPMENT LIMITED Second Defendant

Hearing:         7 October 2010 (Heard at Rotorua)

Appearances: P J Crombie for the Plaintiff

No appearance for the First Defendant
G Hazel and V Veerakumar for the Second Defendant

Judgment:      7 October 2010

INTERIM ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr P J Crombie, CooneyLeesMorgan, Solicitors, Tauranga

Mr G Hazel, Baldwins Law Ltd, Solicitors, Auckland

Copy to:

ZNEL Limited, C/o Bennett Gibson Limited, 126 Jellicoe St, Te Puke

POLLEN-PLUS LIMITED V ZNEL LIMITED AND ANOR HC TAU CIV-2010-470-848  7 October 2010

[1]      This is an urgent application by the plaintiff for an interim injunction to restrain the second defendant from selling equipment alleged to infringe copyright of the plaintiff.   This is claimed copyright in drawings for machines for collecting kiwifruit pollen.

[2]      I am  having  to  reserve  my decision.    In  these  circumstances,  as  I have advised  counsel,  I  am  making  an  interim  order  pending  delivery  of  a  formal judgment.   I am doing this because the second defendant has a contract to sell machinery which is said to infringe the plaintiff’s copyright to a third party.   The second defendant is contractually bound to make the delivery by 29 October 2010 at the latest but is, at this date, in a position to make delivery.  It has refrained from doing so pending determination of this application.

[3]      The judgment on the application for the interim injunction will be delivered before 29 October 2010.  In the meantime I make a provisional order restraining the second defendant from completing the contract of sale with the third party, Seeka Kiwifruit Industries Limited.

[4]      I note that there is also an application against the first defendant.  However, the first defendant has provided an undertaking acceptable to the plaintiff.  This has been provided to the Court and is now on file.   As a consequence of that the application against the first defendant has been withdrawn by the plaintiff.  Costs in that regard are reserved.

[5]      I otherwise reserve my decision on the substantive issue in respect of the interim injunction application.

[6]      What I am about to say was not part of the interim oral judgment dictated in Court and contained in the preceding paragraphs.   However, it is a matter I had discussed  with  counsel.    Some  attention  needs  to  be  given  to  the  terms  of  the proposed interim order in the event that the plaintiff makes out its case for an interim order.   I would be grateful if counsel could confer in that regard to see whether agreement can be reached.  Plainly that will be on the basis that the second defendant

does not in any way concede that the plaintiff is entitled to an interim injunction and

an interim order may not be made.

Peter Woodhouse J