Rapid Labels Limited v Excel Digital Limited
[2019] NZHC 2522
•4 October 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-219
[2019] NZHC 2522
UNDER the Fair Trading Act 1986 IN THE MATTER OF
breach of the Fair Trading Act passing off
BETWEEN
RAPID LABELS LIMITED
Plaintiff
AND
EXCEL DIGITAL LIMITED
First Defendant
W-RAPT LABELS LIMITED
Second Defendant
Hearing: 8 August 2019 Appearances:
G F Arthur and L Carter for Plaintiff
M T Lennard and M R Wolff for Defendants
Judgment:
4 October 2019
JUDGMENT OF CLARK J
RAPID LABELS LIMITED v EXCEL DIGITAL LIMITED [2019] NZHC 2522 [4 October 2019]
Table of Contents
Para No
Introduction[1]
Is the plaintiff estopped from pursuing its claim?[8]
An issue of privilege[10]
The estoppel defence[17]
Representation not clear and unequivocal[22]
Reasonableness of reliance[28]
The defendants’ conduct[33]
Detriment[38]
Conclusion on estoppel[40]
Application for interim injunction [41]
Legal principles – interim injunctions[48]
Legal principles – Fair Trading Act[51]
Serious question to be tried?[56]
Balance of convenience[87]
Overall justice of the case[105]
Result[106]
Introduction
[1] Rapid Labels Ltd (Rapid) is one of a number of subsidiaries of Hexagon Holdings Ltd, which is the holding company of the Hexagon Labels group of companies. Rapid was incorporated in 1976 and has conducted its business in the label industry since that time. Rapid owns the RAPID trademark, which had earlier been used since 1968. Essentially, Rapid is a custom-made label manufacturer servicing clients in many markets.
[2] In March 2019, Rapid became aware of the first defendant’s intention to begin using the RAPT trade mark in relation to its labels business. The first defendant, Excel Digital Limited (Excel), had provided a digital label service from 2014 and in early 2018 decided to launch a new company for the digital printing arm of Excel (W-Rapt). It settled on Rapt Labels Ltd as the name for the new company.
[3] Rapid wrote to Excel on 20 March 2019 objecting to the use of the trade mark RAPT in light of Rapid’s use of, and reputation in, the RAPID trade mark. Rapid took the view that W-Rapt’s goods and services were the same as those provided by Rapid, and that W-Rapt operated in the same market and was targeting the same customers. Rapid asserted a similarity between the RAPID and RAPT trademarks and claimed
W-Rapt’s use of its trademark would inevitably deceive or mislead consumers. Rapid required Excel’s agreement to not use the RAPT trademark.
[4] Initially, lawyers’ letters were exchanged. Then, on 28 and 29 March 2019, the chief executives of the two companies engaged in personal discussions. The parties have polarised views about what was concluded at that time and it will be necessary to address that further because an estoppel is said to arise. For the moment, it is necessary only to record that, on 1 April 2019, W-Rapt launched as W-Rapt Labels Ltd, the same company as Rapt Labels Ltd but with its name changed and with a logo and branding design bearing a stylised “W”. The various forms of that logo appear at
[41] of this judgment.
[5] The plaintiff commenced proceedings and applied for an injunction restraining the defendants from using the trade marks set out below at [41] and restraining use of the second defendant’s company name as a trade mark, in relation to label printing or the manufacturing, marketing, sale or supply of labels.
[6] The defendants say the plaintiff is estopped from pursing its claim and that this point determines (or ought to determine) the litigation. In any case, the defendants say an injunction should not be issued as there is no seriously arguable case and the balance of convenience favours maintaining the status quo.
[7] The estoppel argument necessarily falls for determination before considering the interim injunction application.
Is the plaintiff estopped from pursuing its claim?
[8] The defendants pleaded the following affirmative defence, which is grounded in an asserted representation by the plaintiff that it would not object to W-Rapt’s new trademark.
FIRST AFFIRMATIVE DEFENCE - ESTOPPEL
12.On 28 March 2019, the plaintiff represented it would not object to the second defendant’s rebranding if the second defendant added a “W” in front of its Rapt trademark.
13.In reliance on the plaintiff’s representation, the defendants materially changed their position, incurred costs, rebranded and launched the business under the alternative W-Rapt trade mark.
14.Wherefore, in the circumstances the plaintiff is estopped from bringing a claim against the defendants and/or it would be unequitable for the plaintiffs to now alter its position.
[9] The plaintiff denies any such representation was made. Further, the plaintiff pleads that the correspondence between the parties on 28 March relied upon at paragraph 12 of the statement of defence was on a without prejudice basis and the plaintiff does not waive that privilege. The plaintiff admits the defendants launched a business under the W-Rapt trademark, but disputes that the defendants materially changed their position in reliance on the plaintiff’s representation or incurred costs on that basis because no such representation was made and there was no basis for the defendants to rely on any such representation.
An issue of privilege
[10] Rapid’s initial position had been that the evidence related to a without prejudice conversation between Mr Howell, General Manager of Rapid, and Mr Matthews, a director of the defendants. The communications were said to be clearly confidential and made in connection with an attempt to settle the dispute. Rapid’s position was that the communications were “exactly the type of settlement discussion the s 57(1) settlement privilege is designed to protect” and it asked the Court to exclude the evidence of the settlement negotiations and not consider it in the context of this application. However, at the hearing, and in light of the arguments advanced by Mr Lennard for the defendants, Mr Arthur for Rapid said he was bound to accept the evidence was admissible for the purpose of showing an agreement, but the Court was invited to ignore it for other purposes.
[11] I acknowledge the strong public policy interest in encouraging parties to settle their disputes without recourse to litigation. To facilitate settlement, parties are encouraged to discuss, confer and bargain freely and frankly within the protective confines of “without prejudice” negotiations. That is, anything said in such negotiations is without prejudice to the participants’ rights to engage in litigation as if
the discussions had not taken place. Even without Mr Arthur’s concession, it was clear to me that two statutory bases enabled me to review the privileged communications.
[12]The without prejudice rule is enacted in s 57 of the Evidence Act 2006:
57 Privilege for settlement negotiations, mediation, or plea discussions
(1) A person who is a party to, or a mediator in, a dispute of a kind for which relief may be given in a civil proceeding has a privilege in respect of any communication between that person and any other person who is a party to the dispute if the communication—
(a)was intended to be confidential; and
(b)was made in connection with an attempt to settle or mediate the dispute between the persons.
…
(3)This section does not apply to—
(a)the terms of an agreement settling the dispute; or
(b)evidence necessary to prove the existence of such an agreement in a proceeding in which the conclusion of such an agreement is in issue; or
(c)the use in a proceeding, solely for the purposes of an award of costs, of a written offer that—
(i)is expressly stated to be without prejudice except as to costs; and
(ii)relates to an issue in the proceeding; or
(d)the use in a proceeding of a communication or document made or prepared in connection with any settlement negotiations or mediation if the court considers that, in the interests of justice, the need for the communication or document to be disclosed in the proceeding outweighs the need for the privilege, taking into account the particular nature and benefit of the settlement negotiations or mediation.
[13] It is obviously necessary, in the circumstances of this case, to examine the privileged communications because the existence of an agreement settling the dispute is in issue. Subsection (3)(b) is engaged.
[14] In addition, I would have been willing to consider the privileged material under subs 3(d). Subsection 3(d) was inserted on 8 January 2017 by s 21(4) of the Evidence Amendment Act 2016. The subsection mirrors the form of wording recommended by the Law Commission. In its 2013 Review of the Evidence Act 2006, the Law Commission recommended amending s 57(3) to “better reflect the appropriate policy balance between the admissibility and exclusion of evidence of settlement negotiations”.1 The options were to attempt to enact the very many exceptions that apply, or to permit the Court to order disclosure of a privileged communication if the Court considered that, in the interests of justice, the need for the communication to be disclosed in the proceeding outweighed the need for the privilege. In the circumstances of this case, it was clear to me the interests of justice outweighed the need for the privilege
[15] While counsel does not argue any longer against the Court reviewing the privileged communications, nevertheless privilege is maintained and I have directed, as requested, that confidential materials in the bundle of documents remain confidential and, as such, not available for examination on the Court file.
[16] Accordingly, I proceed to consider the confidential communications between Mr Howell of Rapid, and Mr Matthews of W-Rapt for the purpose of determining what they agreed on 28–29 March 2019.
The estoppel defence
[17] There was no dispute between counsel as to the matters the defendant must show in order to successfully invoke equitable estoppel. The “modern approach” is discussed in Equity and Trusts in New Zealand,2 which Mr Arthur cited, and in Cross on Evidence,3 which Mr Lennard cited.
[18]Equity and Trusts in New Zealand states:
1 Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, February 2013) at [10.56].
2 Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) at [19.2] (footnotes omitted).
3 Mathew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [4.3].
Although the modern approach is “to depart from strict criteria and to direct attention to overall unconscionable behaviour” it is nevertheless clear that the party alleging an estoppel must show that:
(a)A belief or expectation has been created or encouraged through some action, representation, or omission to act by the party against whom the estoppel is alleged;
(b)The belief or expectation has been reasonably relied on by the party alleging the estoppel;
(c)Detriment will be suffered if the belief or expectation is departed from; and
(d)It would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation.
[19] On 28 March 2019, Mr Howell contacted Mr Matthews. Mr Lennard set out, in the following convenient format, the recollection of the two men and the nature of their communications. I reproduce Mr Lennard’s table but have omitted his footnote references to the affidavit evidence.
Matthews
Howell
On 28 March 2019, at around midday Gregory Howell, the CEO of Hexagon Holdings Limited, called me to see if the issue with our name could be resolved directly between us. We discussed Rapid’s concerns relating to
our rebranding.
On 28 March 2019, in an effort to resolve this dispute, I called
Mr Matthews. In that phone call I urged Mr Matthews to reconsider his decision to use the RAPT trade mark, pointing out that he could
choose any name to rebrand to.
While I did not (and do not) consider the trademarks to be similar, in an attempt to alleviate Rapid’s concern, I suggested putting a W in front of Rapt to further distinguish it from Rapid.
Mr Howell said he would seek Board approval
The next day, Mr Matthews called me back. He asked what our position would be if they used ‘RAPT with a W’ (as in, WRAPT). I said that it made no difference (in that it would still be an issue), but that I would
talk to our Chair.
Later that same day, Mr Howell called me back and said Rapid would
not object to our rebranding if we
added a “W” in front of RaptI called Mr Matthews back. I said, ‘okay, we'll do it’ (meaning, let’s reach agreement on them using the WRAPT name). But I said this was subject to a couple of conditions, in particular, that they needed to make it very clear so that there wasn't any confusion and help resolve any issues with confusion, and that it needed to be formalised in an agreement the next week (as in, the week starting 1 April).
Mr Matthews said he’d get onto it and would make the change. Subsequently [at 3.56pm] our lawyers emailed Rapid’s lawyers confirming their understanding of the agreement and asking to be advised of any objections or misunderstandings urgently as we were planning to launch the following Monday, being 3 days later.
The email said “our clients have spoken directly and there is an in principle agreement that your client will not object to our client rebranding as WRAPT, and we will be hearing from you shortly with a formal note
recording the same”
[At 4.36pm] I sent the following text message to Mr Matthews, to confirm the without prejudice nature of that discussion, and that it was subject to formal agreement.
< Steve Matthews > iMessage
Fri, 29 Mar, 15:19
Hi Greg conscience of time? Thanks Steve
345pm I'll call you Fri, 29 Mar, 16:36
Steve, for completeness. Our phone calls were offline, without prejudice. This text also. Formal comms will follow early next week. That is necessary to clarify our position and to also communicate our
expectations regarding any market confusion. In the meantime we understand you intend to launch as Wrapt Labels. No reply required. Regards, Greg Howell.
On the basis of the agreement of
Mr Howell that Rapid would not object to our rebranding if we added a “W” to Rapt, and having received no response from Rapid’s solicitors, we instructed JFI to alter our branding and website to
W-Rapt Labels Limited.
In altering the website and branding so close to the launch we had to incur costs from JFI, Megabyte New Zealand
Limited and IQ New Zealand Limited which totalled $5,422.25.
[20] Mr Lennard submitted the evidence shows the four elements of an estoppel are satisfied:
(a)Knowing the conversations of 28 and 29 March were taking place ahead of a 1 April launch date, the plaintiff said “we’ll do it” while also providing that the agreement would need to be formalised. In other words, the plaintiff agreed to the defendants’ launch as WRAPT, made no reply to the defendants’ solicitors’ statement that agreement had been reached, and acknowledged the defendants would rebrand as WRAPT. In context then, it is said there was a clear and unequivocal representation that the plaintiff would take no action provided the defendants rebranded as WRAPT.
(b)In all the circumstances, the defendants acted more than reasonably upon a belief the plaintiff would not take legal action were the defendants to rebrand with a W at the start of the RAPT trademark.
(c)The defendants incurred costs in the weekend rebranding exercise and were given no opportunity to resume their position before incurring prejudice.
(d)It would be unconscionable for the plaintiff to depart from its agreement to the defendants’ launch as WRAPT. Mr Lennard highlighted the negotiation was one between business competitors. In other words, the parties were not naïve. They knew they were attempting to reach a resolution that would enable them to achieve their respective business interests and avoid the costs and uncertainties of litigation. In these circumstances, it is unconscionable for the plaintiff to resile from the agreement once the defendants had undertaken the costs of the rebrand. Mr Lennard submitted there is a societal interest in holding the parties to their agreement.
[21] As I will elaborate at [22]–[40], the evidence has not satisfied me that Rapid should be estopped from claiming breach of the Fair Trading Act and passing off.
Representation not clear and unequivocal
[22] First, the representation was not “clear and unequivocal”.4 The evidence does not show Rapid represented that if the defendants placed a “W” before “RAPT” it would not object. Rather, the evidence shows Rapid was amenable to a written agreement whereby the defendants would use WRAPT in their rebranding and there would be other clauses or conditions dealing with the potential for confusion. Indeed, the defendants’ solicitors recorded in their email to Rapid’s solicitors on 29 March 2019 their understanding —
… our clients have spoken directly and there is an in principle agreement that [Rapid] will not object to our client rebranding as WRAPT, and we will be hearing from you shortly with a formal note recording the same.
[23] Mr Howell’s text to Mr Matthews on 29 March 2019 at 4:36 pm confirmed both the without prejudice nature of their discussion and, critically, that it was subject to formal agreement. As Mr Howell stated in his text, the formal communications were necessary “to clarify our position and to also communicate our expectations regarding any market confusion”.
[24] Although Mr Howell’s affidavit evidence is after the event, it is no more than consistent with his text communication on the afternoon of Friday 29 March 2019. Given the typically informal nature of text communications, the particular message sent at 4:36 pm stands out as reasonably formal. It is also clear. As Mr Howell deposed, Rapid intended to reach a written agreement with Excel and intended the agreement to require Excel to act in good faith and with professionalism in relation to any confusion arising from the rebranding, and would include a positive obligation on Excel to clarify any confusion of which Excel became aware. From Mr Howell’s point of view there was no agreement with Excel around the use of the name until it was finalised in a written agreement. Rapid intended to seek undertakings from Excel to guard against Rapid’s discomfort with its use of WRAPT but, before a draft undertaking had been finalised, Excel had proceeded with its W-Rapt launch.
4 Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741; [1972] 2 All ER 271 (HL), applied in Krukziener v Hanover Finances Ltd [2008] NZCA 187 at [37].
[25] Mr Howell’s affidavit evidence accords with the text he sent to Mr Matthews on Tuesday 2 April 2019 recording his disappointment:
[26] Excel may well have believed the communications constituted encouragement to launch on the following Monday, 1 April 2019, under the RAPT rebrand but the belief it says it held was not warranted in light of the conditions that Mr Howell plainly imposed on their “in principle” agreement. I do not think it can sensibly be construed from the text communications that Rapid had agreed, without more, to abandon its legal rights on the basis of the “in principle” agreement. At best, the reasonable person is likely to conclude that the communications were ambiguous.5 What is not ambiguous is Mr Howell’s final text at 4:36 pm on 29 March 2019, recording formal communications were to follow and were necessary to clarify Rapid’s position and communicate its expectations regarding any market confusion.
5 Compare, for example, The Travel Agents Association of New Zealand Inc v NCR (NZ) Ltd (1991) ANZ ConvR 553 (HC).
[27] The Court of Appeal’s observation in Oracle New Zealand Ltd v Price Waterhouse Administration Ltd is highly relevant.6 The Court of Appeal acknowledged that in commercial negotiations there is often little point in spending time and energy on settling details unless there is agreement in principle. At that stage it is worthwhile negotiating the details:7
… but there is no contract until all issues have been settled. To regard an agreement in principle as binding would be to deprive the qualifying words “in principle” of any meaning at all.
Reasonableness of reliance
[28] The second ingredient of an estoppel is that the belief or expectation was reasonably relied on by the party asserting the estoppel.
[29] I have already touched upon the fact it was not reasonable for the defendants to rely on an agreement “in principle” in continuing with its intended relaunch on Monday 1 April 2019, that is, on the very next working day following discussions with Mr Howell. The defendants say they were given no opportunity to resume their position before incurring prejudice and that there was a window (effectively the afternoon of Friday 29 March 2019) when the plaintiff, had it regretted the agreement, could have resiled from it without the defendants incurring prejudice.
[30] I do not accept that argument. In the first place, it was not reasonable for the defendant to proceed as though there were in place a settled contract with all issues resolved. Not only had the defendants’ solicitors emailed the plaintiff’s solicitors on 29 March 2019 at 3:56 pm recording that their respective clients had “spoken directly and there is an in principle agreement” but Mr Howell texted Mr Matthews some 40 minutes later “for completeness” restating that the necessary formal communications would follow early next week.
[31] Additionally, from at least Tuesday 2 April 2019, the defendants would have known the alleged representation had been withdrawn or that Rapid intended to depart from it. Therefore, the defendants’ continuing reliance on the asserted representation
6 Oracle New Zealand Ltd v Price Waterhouse Administration Ltd [2010] 1 NZLR 533 (CA).
7 At 556.
was, and is, not reasonable. I set out in full the unredacted parts of the letter from Rapid’s solicitors to the defendants’ solicitors on 2 April 2019.
[32] From this point at least, the defendants were expected to take reasonable steps to alleviate their position because it had to be clear to the defendants, from this point at least, that the plaintiff intended to depart from the ostensible representation.8
The defendants’ conduct
[33] The third barrier to the defendants’ estoppel defence is that they did not proceed, in fact, on the strength of the representation they now assert constitutes the basis of the estoppel. The asserted representation was that Rapid did not object to the defendant rebranding as WRAPT.
[34] Instead, however, the defendants chose to rebrand as W-RAPT with various colour device marks such as:
[35] The plaintiff says the use of “W-” separate from RAPT was never discussed. Consequently, approval of the use of W-RAPT could not have constituted part of any representation by Rapid. In any event, the plaintiff says, the stylised “W” on its side appears to emphasise the RAPT element of the mark.
8 James Every-Palmer Equity – A to Z of New Zealand Law (online ed, Thomson Reuters) at [26.19.2.2(3)], citing Prudential Building and Investment Society of Canterbury v Hankins [1997] 1 NZLR 114 (HC) at 122.
[36] The defendants say that use of a hyphen, and the fact there is a stylised W rotated on its side before RAPT, make no difference. Mr Lennard submitted that placing a W before RAPT makes absolutely no difference to the way it sounds; there are no points of similarity between the visual logos and whatever variations were undertaken nobody would be confused between the plaintiff’s and defendants’ logos. In any event, a W was placed visually before the word RAPT, as agreed. Consequently, the alleged difference between what was agreed and what was done makes no difference to the plaintiff. In essence, the defendants’ position is that the plaintiff resiled from its agreement not to file proceedings because it regretted in April 2019, the decision it made at the end of March 2019 and not because of any bona fide conclusion the defendants had not acted as agreed.
[37] I do not accept this aspect of the defendants’ case. The arguments that are made about points of similarity and distinction between the logos, as to the sound of RAPT verses RAPID, and whether or not confusion would arise, are points relevant to the substantive dispute. They are not points that assist in determining whether the defendants have established a defence of estoppel. Nor are they points able to be determined at this interlocutory stage. The plaintiff was entitled to treat the defendants’ actions as differing from their agreement.
Detriment
[38] The fourth and final point concerns the costs the defendants say they incurred as a result of undertaking the rebrand in reliance on the plaintiff’s representation.
[39] I do not agree the circumstances in which the costs — or loss — to the defendants are such that equity requires relief to be given. I accept the plaintiff’s argument that the detriment allegedly suffered by the defendants was in consequence of the defendants acting prematurely, that is, prior to the foreshadowed formal agreement being executed.
Conclusion on estoppel
[40] In summary, the defendants have not established that the plaintiff, by words or conduct, made a clear and unequivocal representation or assurance intended to affect
the relations between them and to be acted upon. Accordingly, the plaintiff is not estopped from bringing its claim. I therefore proceed to consider the application for injunctive relief.
Application for interim injunction
[41] The plaintiff seeks an interim injunction, pending further order of the Court, restraining the defendants from using the following trademarks:
(a) RAPT
(b) RAPT LABELS
(c) WRAPT
(d) WRAPT LABELS
(e) W-RAPT
(f) W-RAPT LABELS
(g)
(h)
(i)
[42] The plaintiff also seeks an order restraining use of the second defendant’s company name as a trademark, in relation to label printing or the manufacturing, marketing, sale or supply of labels.
[43] The interlocutory application is underpinned by the plaintiff’s substantive claim in which it pleads two causes of action: breach of the Fair Trading Act 1986 and passing off.
[44] In its first cause of action, Rapid pleads W-Rapt’s use of its trade marks is likely to mislead or deceive consumers and will breach ss 9, 10, 11, 13(a), 13(b), 13(e), and 13(f) of the Fair Trading Act. Rapid seeks a declaration that W-Rapt’s use of its trade marks breaches the Fair Trading Act, an injunction restraining W-Rapt’s use of its trade marks, and damages under s 43 of the Fair Trading Act.
[45] In relation to the second cause of action, Rapid pleads it owns a significant and valuable reputation in the RAPID trade mark, which is exclusively associated by consumers with Rapid’s business. Rapid says consumers are likely to mistake or confuse the goods or services provided by Rapid and use of W-Rapt’s trade marks is causing and will cause damage including to Rapid’s goodwill in the RAPID trade mark. Rapid seeks a declaration that W-Rapt’s use of its trade marks amounts to passing off, an injunction restraining W-Rapt’s use of its trade marks and either an account of profits or damages.
[46] In a nutshell, the defendants’ case is that the respective marks are “chalk and cheese”. The defendants point to the substantial expansion of Excel’s client base from 2014 when it started printing labels, and the decision to establish a standalone company with the name Rapt Labels Ltd to provide the service. A new trade mark was also thought desirable. When Rapid expressed concern that the trade mark was deceptively similar to its own, Excel decided to modify its proposed rebranding by adding a “W” before “RAPT”.
[47] Mr Lennard argued the threshold to be met by Rapid is high — justifiably so in this case as an interim injunction would not simply hold the status quo but would have the effect of a final determination. That is because the defendant cannot return to being Excel.
Legal principles – interim injunctions
[48] The approach to be taken to an application for an interlocutory (or interim) injunction has been firmly established since the House of Lords’ decision in American
Cyanamid Co v Ethicon Ltd.9 The Court of Appeal summarised the approach in
NZ Tax Refunds Ltd v Brooks Homes Ltd, also a passing off case.10
(a)The applicant must first establish there is a serious question to be tried, that is, that the claim is not vexatious or frivolous.
(b)The balance of convenience is then considered by assessing the impact on the parties of granting, or refusing to grant, an injunction.
(c)Finally, an assessment of the overall justice of the position is required as a check.
[49] It is not necessary that the threshold question be considered separately in relation to Rapid’s two causes of action. Counsel broadly agreed the analysis to be undertaken in relation to the Fair Trading Act cause of action will be similar to the analysis to be undertaken for passing off, the only real difference being the requirements to establish goodwill and damage in relation to the passing off cause of action. As Mr Lennard submitted, if the case cannot succeed under the various misleading or deceptive criteria in the Fair Trading Act, it cannot succeed in passing off.
[50] I note also the observation of the Court of Appeal in Taylor Bros Ltd v Taylors Group Ltd:11
… it is to be expected that, as has apparently happened in Australia, to a large extent proceedings under the [Fair Trading] Act will replace in this country actions for passing off at common law.
Legal principles – Fair Trading Act
[51]Section 9 of the Fair Trading Act provides:
9 American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) at 407. See also Eng Mee Yong v Letchumanan [1980] AC 331 (PC).
10 NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [12].
11 Taylor Bros Ltd v Taylors Group Ltd [1988] 2 NZLR 1 at 38.
9 Misleading and deceptive conduct generally
No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
[52] In Robertson Engineering Ltd v Gallagher Group Ltd, when considering conduct characterised as misleading or deceptive, Heath J regarded the “pithy statement” of Cooke P in Taylor Bros Ltd v Taylors Group Ltd as the starting point for analysis: “Members of the public have a right not to be misled about with whom they are dealing.”12
[53] More recently, in Red Eagle Corporation Ltd v Ellis, the Supreme Court said s 9 is directed:13
…to promoting fair dealing in trade by proscribing conduct which, examined objectively, is deceptive or misleading in the particular circumstances. Naturally that will depend upon the context, including the characteristics of the person or persons said to be affected.
[54]Further:14
It is not necessary under s 9 to prove that the defendant’s conduct actually misled or deceived the particular plaintiff or anyone else. If the conduct objectively had the capacity to mislead or deceive the hypothetical reasonable person, there has been a breach of s 9. If it is likely to do so, it has the capacity to do so. Of course, the fact that someone was actually misled or deceived may well be enough to show that the requisite capacity existed.
[55] In National Mini Storage Ltd v National Storage Ltd, the Court of Appeal was required to engage in a comparative analysis of trading names under the Fair Trading Act. The Court of Appeal set out what it described as “uncontentious propositions”:15
(a)Consumers will not be misled by the adoption of a trading name unless a class of consumers associates that name with the goods or services of another.
12 Robertson Engineering Ltd v Gallagher Group Ltd HC Hamilton CIV 2008-419-744, 11 July 2008 at [47], citing Taylor Bros Ltd v Taylors Group, above n 11, at 40.
13 Red Eagle Corporation Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 at [28] (footnotes omitted).
14 At [28] (footnotes omitted).
15 National Mini Storage Ltd v National Storage Ltd [2018] NZCA 45 at [19]–[22].
(b)To assess the risk of consumers being misled or deceived, a court puts itself in the position of a hypothetical consumer who is reasonably informed and reasonably attentive. And, echoing the passage cited above at [54] from Red Eagle Corporation Ltd v Ellis, it is not necessary that the defendant actually misled anyone or that it should mean to do so.
(c)If the plaintiff cannot show that the number of people in the class of consumers likely to be confused or deceived is substantial or significant, the court may conclude the conduct is not misleading or deceptive, or it may decline relief in the exercise of its discretion.
(d)A party who adopts a generic or descriptive trading name must be prepared to accommodate a degree of confusion because small distinctions may be sufficient to defeat a claim under the Fair Trading Act or a claim in passing off.
Serious question to be tried?
[56] Rapid uses the RAPID trade mark in various forms. These are the bare word mark RAPID, the word mark RAPID LABELS and the following Rapid Labels logo:
[57] It is apparent from a visual comparison of Rapid’s logo with W-Rapt’s logos (reproduced above at [41]) that they are distinct. I accept Mr Lennard’s submission that there is no possibility of visual confusion between them. But, as Mr Arthur emphasised, the plaintiff’s case does not rest on a comparison of logos. On Rapid’s case the issue is whether, given its reputation in the various forms of the RAPID trade mark, the defendants’ uses of W-RAPT is misleading or deceiving. In particular, consumers with imperfect recollection may be confused.
[58] In its advertising, Rapid states “Our thing is being fast – to quote, to proof, to deliver”. Citing Office Cleaning Services Ltd v Westminster Office Cleaning Association, Mr Lennard submitted that where the similarity between trade marks or names lies in descriptive words, the courts will generally accept a small difference between them will be sufficient to distinguish them.16 Mr Arthur argued strongly against characterising RAPID as a descriptor.
[59] The significance of the point is that the courts have held some element of low level confusion may have to be tolerated as the price paid for the adoption of a descriptive name.17 The general rule is that, the more distinctive a trading name, “the further away competitors must keep in the names they adopt”.18 Where a plaintiff’s trading name is generic or descriptive, the nearer the competitor may approach.
[60] I do not accept the defendants’ argument that the name “Rapid” is descriptive in the sense necessary to invoke the principle that the court should be reluctant to interfere. The name may very well describe the manner by which Rapid seeks to provide its services, but the name is not descriptive of the business the plaintiff carries on, which is the production and supply of labels.
[61] The question I turn to consider then is the risk of a class of consumers associating the name RAPT with RAPID and thereby being deceived by W-Rapt’s use of its trade marks. As the Court of Appeal stated in National Mini Storage Ltd v National Storage Ltd, distinctiveness or reputation in a trading name, is a question of fact.19
[62] Mr Howell, Rapid’s General Manager, deposed to his understanding that what was a family business started in 1968 and traded under the RAPID trade mark from day one. In any event, and as mentioned at the outset, Rapid was incorporated in 1976. It was then incorporated into the Blue Star Group in 1998 but continued to operate the Rapid Labels business as a division of the Group until 2012 when, for reasons that are
16 Office Cleaning Services Ltd v Westminster Office Cleaning Association [1944] 2 All ER 269 (CA) at 271.
17 National Mini Storage Ltd v National Storage Ltd [2017] NZHC 1775 at [66].
18 NZ Tax Refunds Ltd v Brooks Homes Ltd, above n 10, at [21], citing Airport Rentals Ltd v Airport Car Rentals (Southern) Ltd (1995) 6 TCLR 664 (HC) at 665.
19 National Mini Storage Ltd v National Storage Ltd, above n 15, at [19].
unnecessary to detail here, Rapid came to own the RAPID trade mark. When Hexagon acquired ownership of Rapid in 2014, the ownership of the RAPID trade mark remained with Rapid.
[63] Rapid’s position is that it has obtained a considerable reputation in the RAPID trade mark. The evidence supports that contention. The RAPID trade mark has been used extensively by Rapid in relation to self-adhesive labels, tags, barcode printers, scanners, ribbons, printer parts and service, label overprinting bureau services and associated good and services. Its website (rapidlabels.co.nz) has become what Rapid describes as the “primary vehicle” by which it communicates “the breadth of [its] full label offer”. Rapid has a customer base of around 2,500 active clients, many of whom are in the food and beverage industry.
[64] The evidence shows the RAPID trademark is used in general advertising, targeted marketing campaigns, on social media, on Rapid’s catalogue, as part of sponsorships, on Rapid’s website, on invoices, and on packing slips that accompany delivery of products. The RAPID trade mark is also used in New Zealand Winegrower (the official magazine of the New Zealand wine industry), industry publications, wall planners and targeted campaigns. Confidential evidence was provided as to Rapid’s market share of the total market for labels and packaging in New Zealand, its expenditure on sales and services and the annual amounts expended in advertising.
[65] I accept consumers or potential consumers of labelling services in New Zealand are likely to have a high awareness of the RAPID trade mark.
[66] W-Rapt emailed approximately 800 customers and suppliers on 19 March 2019 to announce that due to the growth of its labels business “as of 1 April 2019 Excel Labels will trade under the new brand, Rapt Labels”.
[67] Rapid highlights W-Rapt’s original intention to use the logo below but that, following the exchange of correspondence at the end of March 2019, W-Rapt switched to the W-RAPT trade marks shown above at [41].
[68] Rapid’s complaint is that the new logo (at [41] above) is essentially the old logo with an extra squiggle on the “artistic device”.
[69] The plaintiff’s case is that many, if not all, consumers would read the W-RAPT logo as RAPT. Few, if any, would read it as a stylised W beside the word RAPT. There is no practical difference, Rapid argues, between the original RAPT logo and the new W-RAPT logo.
[70] When comparing the RAPID logo (at [56] above) with W-Rapt’s logos — whether the old or new — I have accepted they are visually distinct. So, the inquiry must be into whether other features of the first defendant’s marks are likely to mislead or deceive.
[71] Aurally, the plaintiff’s and first defendant’s logos are alike. Even if the word RAPT did not stand apart from the stylised W, (so that for example it appeared as WRAPT) the W becomes either irrelevant or silent and the logo would only be read and articulated as “rapt”. Nor, to my mind, does the addition of a hyphen signify. The defendants do not suggest a pronunciation for W-RAPT other than “rapt”. With or without the “W”, the first defendant’s marks will be pronounced “rapt” by most people, including the relevant market.
[72] But does the aural similarity, which I accept, create the risk of confusion for which the plaintiff contends? W-Rapt argues that while the parties operate in similar markets they are not in direct competition as W-Rapt provides an exclusively digital printing service targeting small to medium sized runs of labels for customers.
[73] Rapid completely disagrees the companies are not in direct competition. Mr Matthews reviewed Rapid’s records over the past two years in which time, he deposed, at least ten companies had given some of their business to the first defendant instead of Rapid. He said this shows there is no differentiation between the companies’ potential customers.
[74] I take the view the parties operate in a broadly similar market. I accept W-Rapt provides what Mr Matthews described as a “purely digital process” and that is obviously W-Rapt’s point of distinction. But Rapid also provides digital services. W-Rapt takes pride in offering what it regards as something different from conventional printing companies, but this does not mean the parties do not have an overlapping customer base and that they are not in competition. Rapid also offers digital printing solutions to its customers and both Rapid and W-Rapt serve small and medium sized companies.
[75] Rapid adduced evidence in support of its claim of confusion including affidavits from an accounts manager, a sales manager and a former general manager of Rapid. The three affidavits contain inadmissible hearsay and I have disregarded those deponents’ accounts of what others are reported to have said about confusion.
[76] Mr Howell, however, provided evidence of confusion held by a customer, as to the identities of the plaintiff and first defendant. Around 10 April 2019, a courier company delivered to WineWorks a package purporting to be from “Rapts Labels Limited”. Believing the package was in fact from Rapid, WineWorks contacted Rapid to obtain a copy of the packaging slip.
[77] Mr Matthews explained that W-Rapt was unaware of the mix up until he read Mr Howell’s affidavit. WineWorks was not in W-Rapt’s database and therefore did not receive W-Rapt’s updating email in relation to its rebrand. At the time it was trading as W-Rapt Labels so the inclusion of an “s” and the omission of “W-” was most likely a labelling error by the courier company. Mr Matthews put the confusion down to an “initial teething problem that typically occurs when companies rebrand” and that the problem is one that can be easily rectified.
[78] These proceedings were commenced almost as the first defendant commenced trade under its rebranded identity. In those circumstances, a judge is often left to make the best assessment he or she can because relevant evidence of confusion is unlikely to be available. While the confusion involving WineWorks is only one piece of evidence, I am unable to put it to one side as merely reflecting initial teething problems. The first defendant had barely begun to trade under its new brand when a customer contacted Rapid believing it to be the sender of the package.
[79] While it is not necessary, of course, to establish a breach of s 9 by proving the defendant’s conduct actually misled or deceived anyone, the fact someone was actually misled or deceived “may well be enough to show that the requisite capacity existed”.20
[80] Mr Hutcheson provided an affidavit on behalf of Rapid. Mr Hutcheson has significant expertise and experience in brand development. He is a past managing director of Saatchi & Saatchi (a global communications and advertising agency network with 140 offices in 76 countries and over 6,550 staff) and has worked in brand development for 45 years. Mr Hutcheson is currently an adjunct professor at AUT.
[81]I summarise the key points of Mr Hutcheson’s evidence:
(a)He believes Rapid is a market leader in the label print industry.
(b)The W-Rapt trade marks are phonetically indistinguishable from, or at least sound very similar to, the word “rapid”.
(c)The addition of W to the trade marks seems baffling. The “stylised winged creature … seems to be a contrived afterthought”.
(d)It is entirely possible that a customer or potential customer who had heard of Rapid would be confused if they saw any one of the RAPT trade marks.
20 Red Eagle Corporation Ltd v Ellis, above n 13, at [28].
(e)It is very likely that if a customer or potential customer who had heard of Rapid received a sales call from a company using any one of the RAPT trade marks, they would think they were dealing with Rapid because they may mishear RAPT as RAPID or simply think W-Rapt is the company they have dealt with before.
(f)Given the first defendant “could have chosen any name in the world” the question must be asked why it chose a name “so close to the market leader”. In Mr Hutcheson’s view the similarity seems “too blatant to be coincidental”.
(g)The chances of confusion, do not change with the different features of the RAPT trade marks because no matter what those changes the phonetic similarity remains and therefore the chances of confusion remain high.
[82] The defendants did not file expert or independent evidence challenging Mr Hutcheson. Nor were they required to do so. In fact, the defendants challenged the admissibility of Mr Hutcheson’s evidence on the basis it went to matters of common sense that are ultimately for the Court to determine. I tend to agree. Section 25 of the Evidence Act permits the admission of expert opinion evidence “if the fact- finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding”. I have not derived substantial help from Mr Hutcheson’s evidence.21 Mr Hutcheson does not profess to having expertise in phonetics. Had Mr Hutcheson formed a different view from the view I reached in relation to the aural similarity between RAPID and RAPT, I would not have been inclined to alter my view on that basis.
[83] As to Mr Hutcheson’s opinion that the “stylised winged creature … seems to be a contrived afterthought,” I do not discount Mr Matthews’ evidence as to the origins of the name “Rapt” for the new corporate digital printing arm of Excel. Mr Matthews attributed inspiration for the name to Christopher Wise, who was to invest in the new
21 See generally R v Pora [2015] UKPC 9, [2016] 1 NZLR 277 at [27].
company and become a director if it was formed. Mr Wise apparently told Mr Matthews he had come up with the name when having a wine with his wife one night. The reasons Mr Matthews liked the name were twofold. First, the word “rapt” is a homophone for “wrapped”. Wrapping or applying a label to a product is a key part of the process Mr Matthew said their customers undertake when creating their finished goods. The name “Rapt”, which means extremely happy or elated, emphasised the total supply of all products the company was able to produce for its customers and was a play on the adjective “wrapped”. W-Rapt wished its customers to be extremely happy or elated with the finished product and W-Rapt’s service.
[84] That is an explanation of sorts in answer to the question Mr Hutcheson said must be asked, that is, why the first defendant chose a name so close to that of the market leader.
[85] I am not in a position to test the evidence. In any event, it seems the idea originated with Mr Wise who did not, in fact, give evidence. Mr Howell points out that Mr Wise was previously employed by Hexagon and Blue Star Print Group, which were parent companies of Rapid. Mr Howell’s evidence is that, when he created the RAPT trademark, Mr Wise would have known of Rapid’s business, its success within the New Zealand label market and its long-standing and extensive use of the RAPID trademark.
[86] Having considered the evidence bearing on distinctiveness and similarity, and of confusion, and having myself undertaken a comparison of the trade marks at issue, I am satisfied there is a serious question to be tried. The key reason is the aural similarity between the words RAPID and RAPT, combined with the apparent prevalence of aural marketing, such as cold calling, in the label industry. While this factor alone might not be sufficient to mislead or deceive, that is an issue for trial. Certainly, Rapid’s case is not frivolous or entirely without merit.
Balance of convenience
[87]I turn now to consider the balance of convenience.
[88] The defendants argue against the grant of an interim injunction on the basis the plaintiff cannot show it will suffer irreparable harm, even if successful, such that damages would not be an appropriate remedy in the circumstances.
[89] The defendants return to the initial confusion and maintain that initial confusion will be inevitable whenever a player rebrands, or a new player emerges.
[90] More fundamentally, the defendants have provided evidence that the direct costs of a further rebrand will be in the vicinity of $90,300. That figure does not include the opportunity costs and delays inherent in re-educating the customer base about any further rebrand.
[91] Mr Lennard submitted an interim injunction was likely to have the effect of a final determination. The second defendant cannot simply return to being Excel. Mr Wise, who was to invest in the new company and be appointed a director, was not and is not a director or shareholder in Excel. If W-Rapt is required to incur the expense of adopting another rebranded identity pending trial, it is very likely the effort and cost of rebranding (for a third time) back to W-Rapt might not be undertaken. In effect, granting an injunction might bring the litigation to a premature end in the plaintiff’s favour.
[92] In the circumstances for which the defendants contend, the relative merits of the parties’ cases become relevant to the balance of convenience. In NWL Ltd v Woods, Lord Diplock, who earlier gave the leading judgment in American Cyanamid Co v Ethicon Ltd, said that where “the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action” the Court should consider “the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial”.22
[93] Similarly, in New Zealand Olympic and Commonwealth Games Association Inc v Telecom New Zealand Ltd, which also concerned claims under the Fair Trading
22 NWL Ltd v Woods [1979] 3 All ER 614 (HL) at 626.
Act, McGechan J refused to grant an interim injunction “where any serious question of liability would be highly marginal and the prohibition in reality would be final.”23
[94] While there is certainly a serious question to be tried on the basis of the aural, and to a lesser extent textual, similarity between RAPT and RAPID, my perception at this interlocutory stage is that the plaintiff must overcome particular obstacles if it is to succeed in establishing at trial its entitlement to an injunction:
(a)First, it is not seriously arguable that confusion could arise by association between the two brands. There is nothing in the name W-RAPT that suggests W-Rapt might be a derivative or partner of Rapid. Realistically, the potential for confusion arises only if an undiscerning consumer were to mistake one name for the other.
(b)Secondly, both parties accept the likelihood of confusing the identities of the companies, on the basis of their logos, is low. Therefore, Rapid’s case tends to become confined to one of confusion arising from the simplified W-RAPT or W-RAPT LABELS trade marks and aural use of the trade marks.
(c)Third, RAPID and W-RAPT have different meanings, or associations, thus tending to mitigate the potential for confusion. RAPID brings to mind the idea of speed or haste, while W-RAPT brings to mind either the physical process of wrapping or the idea of being excited or elated. Those concepts are quite distinct and are unlikely to be confused by a consumer who remembered the trading name by its meaning or association.
[95] Further, the difficulties in establishing confusion may be exacerbated by the market in which the parties operate. Both parties deposed to having customer bases of less than 2,500 people or entities. Approximately 90 per cent of Rapid’s business comes from repeat customers who are primarily businesses. Individual purchases also
23 New Zealand Olympic and Commonwealth Games Association Inc v Telecom New Zealand Ltd
(1996) 7 TCLR 167 (HC) at 174.
appear to involve substantial sums of money. The parties are in the business of targeted retail. In other words, there is little scope for impulse buying and decision- making. In this context, it is not unreasonable to assume a discerning customer base. The limited size of the market also increases the possibility of raising awareness of the difference between the two brands. It is perhaps not a coincidence that the one example of confusion involved an organisation that was unaware of the defendants’ rebranding.
[96] All of the foregoing considerations lead me to conclude the merits of the parties’ respective cases at trial are likely to be rather finely balanced.
[97] Mr Arthur advanced two primary arguments in support of the proposition the balance of convenience favours Rapid. First, damages would not be an adequate remedy for Rapid. Secondly, the defendants launched their new branding with their eyes wide open to the potential consequences.
[98] In relation to damages, Mr Arthur submitted damages are usually considered inadequate in passing off cases because erosion of goodwill through misleading conduct is not easily measurable.24 In particular, Mr Arthur argued it would be difficult for Rapid to prove that customers purchased from W-Rapt due to confusion. I tend to think Rapid’s concern in this regard is met by the narrow compass within which the issues at trial will be argued along with the finely balanced nature of the merits. In particular, the apparently confined scope of the plaintiff’s claim reduces the scope for erosion of goodwill, such that refusing an injunction at this stage is unlikely to cause irreparable damage to Rapid.
[99] In elaborating the second point, Mr Arthur submitted the defendants came into the market strategically and they should not be permitted to benefit from the risk they took when prematurely launching under the rebranded identity. There is certainly support in the authorities for such a proposition, if one accepts Rapid’s characterisation
24 Phillip Morris (New Zealand) Ltd v Liggett & Myers Tobacco Co (New Zealand) Ltd [1977] 2 NZLR 35 (SC) at 39.
of events.25 I do not think, however, acceptance of Rapid’s characterisation is warranted at this stage. Mr Matthews’ evidence is that the defendants arrived at the RAPT name legitimately and independently. There is no basis upon which to question that evidence before trial. I have no proper basis for assuming this to be a case where the defendant is unreasonably testing the limits of the plaintiff’s rights, rather than a case of two bona fide traders with co-incidentally similar sounding trade marks.26
[100] Furthermore, the defendants’ consistent position has been that there is no likelihood of confusion between their trade marks and the RAPID trade mark. The defendants attempted to address Rapid’s grievance despite their belief it had no merit. Where the relative strengths of the parties’ cases are finely balanced, it cannot be said the defendants’ eyes were wide open to an obvious claim. They may have been aware of the reality that litigation might ensue, while legitimately maintaining their view any such litigation was meritless. They may ultimately be wrong about that, but I do not think it should be held against them for the purpose of assessing the balance of convenience.
[101] Before leaving the issue of balance of convenience, I address the remark by the Chief Justice in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd (Klissers) that “to deprive the plaintiff of the interim injunction because the defendants may not feel it commercially worthwhile to continue is to deprive the plaintiff of the most effective remedy for passing off”.27 Davison CJ’s approach, as he observed, reflected the approach taken in other cases of passing off involving allegations of likely confusion in trade. The expressions of judicial concern about deprivation of a remedy to a plaintiff must, of course, be regarded in their particular contexts. In fact, on appeal, the Court of Appeal was at pains to avoid precise formulae: “… an interlocutory decision of this kind is essentially discretionary and its solution cannot be governed and is not much simplified by generalities”.28 Interim injunctions having
25 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129 at 139; and New Zealand Farmers’ Co-operative Association of Canterbury Ltd v Farmers Trading Co Ltd (No 1) (1979) 1 TCLR 18 (SC) at 28.
26 Compare Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, above n 25, at 139.
27 At 139.
28 At 142.
the effect of putting an end to litigation “is at least a danger against which it is necessary to guard”.29
[102] I do not see the present case as similar to Klissers where the merits manifestly and strongly favoured the plaintiff. The plaintiff had some 65 per cent of its total production in the disputed packaging, which it had developed at a cost of over half a million dollars over the past six years, whereas the defendants had only recently adopted their packaging in a small proportion of their products. There was a possibility the defendants would flood the market with their new packaging in the interim period,30 and the defendants could comply with the injunction with relative ease. The plaintiff’s central complaint concerned the defendant’s use of checks on their packaging. The checks could be readily eliminated without major change in the packaging.31
[103] The position of the defendants in this case is very different. To comply with the terms of the injunction that the plaintiff seeks, W-Rapt would have to change not only all its business and marketing material, but also its trading name. The high likelihood is that it would not be viable for the defendants to return to their present position and an injunction would effectively end the action.
[104] I am satisfied the balance of convenience lies with the defendants whose position may be irrevocably prejudiced by the grant of an injunction.
Overall justice of the case
[105] Standing back, I am satisfied the overall justice of the case does not favour the grant of an interim injunction. Granting an injunction at this stage is likely to bring an end to the litigation. As a matter of commercial reality, it would not be in the defendants’ interests to continue defending the action if it were required to rebrand in the interim. To bring about that outcome without a greater degree of comfort in the merits of the plaintiff’s claim would be unjust. While I am satisfied there is a genuine issue for trial, I consider the prospects of success to be relatively even and damages to
29 At 142.
30 At 141.
31 At 141–142.
be an appropriate remedy for any loss caused in the intervening period if the plaintiff is ultimately successful.
Result
[106]The plaintiff’s application for an interim injunction is dismissed.
[107] Although the plaintiff has been unsuccessful in terms of its interlocutory application, so too have the defendants been unsuccessful in their estoppel defence which was advanced as decisive of the litigation. In the circumstances, costs are reserved for determination following the hearing of the plaintiff’s substantive proceeding.
Karen Clark J
Solicitors:
Hudson Garvin Martin, Auckland for Plaintiff Morrison Kent, Wellington for Defendants
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