Puredepth Ltd v NCP Trading Ltd - [2010] NZCA 392

IN THE COURT OF APPEAL OF NEW ZEALAND
CA264/2010
[2010] NZCA 392
BETWEENPUREDEPTH LIMITED
Appellant

ANDNCP TRADING LIMITED
First Respondent
ANDLG DISPLAY LIMITED
Second Respondent

Hearing:19 August 2010

Court:Glazebrook, Venning and Simon France JJ
Counsel:C L Elliott for Appellant
J E Hodder SC and M C Sumpter for Second Respondent

Judgment:25 August 2010 at 12.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellant must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.

____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
[1]       Puredepth Ltd (Puredepth) appeals against the decision of Fogarty J to join LG Display Ltd (LG) as a defendant to proceedings Puredepth had taken against NCP Trading Limited (NCP).
Background
[2]       Puredepth carries on business involving the design and licensing of displays for televisions and associated apparatus. It holds a patent number 541023 for a “backlighting system for display screen”.
[3]       Puredepth commenced proceedings against NCP alleging infringement of its patent. It sought urgent injunctive relief preventing NCP from importing and dealing in New Zealand in direct backlighting systems and, in particular, from importing and dealing in the Konka branded LCD television range in New Zealand.
[4]       LG’s components are used in the backlighting systems of Konka televisions.
[5]       Puredepth’s interim injunction application was supported by a report from an electrical engineer, Mr Chaplin. Mr Chaplin analysed an LG backlight system in a 42 inch Konka television and concluded that all the integers of claim 1 of Puredepth’s patent were present in the Konka TV.
[6]       At a preliminary hearing on 18 and 19 March 2010 Fogarty J raised whether LG and perhaps other component suppliers should be involved in the case. Puredepth maintained that the source of the components assembled by NCP into the alleged offending backlighting system was irrelevant. It filed a formal memorandum submitting it was not appropriate for LG to be joined to the proceedings.
[7]       Fogarty J then issued a minute noting that, in light of Puredepth’s opposition, it would be appropriate for either NCP or LG to apply for LG to be added as a party under r 4.56 of the High Court Rules if that was LG or NCP’s wish. The Judge indicated that if an application was filed it would be heard at the beginning of the interim injunction hearing which was scheduled for 14 April 2010.
[8]       LG made a formal application seeking to be joined as a defendant. Puredepth maintained its opposition.
[9]       After hearing from counsel on 14 April Fogarty J made an order joining LG to the proceeding. In his reasons for doing so, the Judge said:[1]
In my view there are therefore two bases upon which LG’s presence before the Court is necessary within the standard of r 4.6(1)(b)(ii). They are that the judgment will, at the very least informally if not formally, contain a declaration as to the infringement or not of LG backlighting of the…

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: [2010] NZCA 392
Decision Date: 25 August 2010

CaseChat Overview and Summary

Puredepth Ltd (Puredepth) filed proceedings against NCP Trading Limited (NCP) alleging patent infringement. Puredepth sought injunctive relief preventing NCP from importing and dealing in certain televisions in New Zealand. NCP uses components made by LG Display Ltd (LG) in the backlighting systems of the televisions. Puredepth opposed LG being joined as a defendant. The trial judge ordered that LG be joined. Puredepth appealed, arguing that the judge erred in joining LG. Puredepth also appealed the judge's refusal to make the injunctive orders sought. Puredepth and NCP settled, and Puredepth did not pursue the appeal against NCP. The appeal against the joinder order was thus moot. However, Puredepth chose not to withdraw the appeal. The court found that the trial judge did not err in joining LG. The appeal was dismissed, and Puredepth was ordered to pay costs to LG.

Orders