Auckland Campervan Limited v Travel Cars NZ Limited

[2018] NZHC 2195

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001786

[2018] NZHC 2195

BETWEEN

AUCKLAND CAMPERVAN LIMITED

Applicant

AND

TRAVEL CARS NZ LIMITED

Respondent

On the papers
Judgment:	24 August 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 24 August 2018 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Victoria Lawyers, Auckland

AUCKLAND CAMPERVAN LIMITED v TRAVEL CARS NZ LIMITED [2018] NZHC 2195 [24 August 2018]

[1]        Auckland Campervan Limited applies for leave to bring proceedings by way of originating application under r 19.5 of the High Court Rules 2016.

[2]        The originating application procedure commenced as a procedure to be used where there was no opposing party. It now has much wider application, but it nonetheless remains, in relation to contested proceedings not listed in r 19.2, an exceptional procedure.1 It is limited to cases where it is not necessary, in the interests of justice, for there to be the usual particularised pleadings, or interlocutory steps, such as discovery, for the proper determination of the issues. A party should not treat the originating application as a short-cut for urgent cases.

[3]        In my view, the intended applicant is seeking precisely to treat the “application” as a short-cut, for what it says is an urgent case.

[4]        The proceeding pleads the wrongful use of a tradename and/or breach of the Fair Trading Act 1986, which is alleged to be causing harm to the applicant’s reputation, goodwill, and business. The proceeding seeks orders preventing the respondent from using the tradename and directing the respondent to pay the applicant compensation for loss of reputation and goodwill and all associated loss to the business.

[5]        This proceeding does not fall within r 19.2, nor is it in any way exceptional or otherwise qualified under r 19.5.

[6]It is an ordinary civil proceeding.

[7]        If, as the applicant says, there is deserved urgency, then the applicant can apply for an interim injunction, or other interim relief. If, as the applicant intimates, it cannot meet that test, then that is not a good reason for adopting a different procedure. It will need to instead try other ways of speeding-up the process, including for example, an application to abridge time for service, and/or for urgent timetabling orders.

1      Cunningham v Cunningham [2016] NZHC 1075 at [10].

[8]        The application for leave to proceed by way of originating application is declined.

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Hinton J