Australasian Conference Association Limited v A Little Bit of Britain Limited

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000526 [2017] NZHC 2684

UNDER the Trademarks Act 2002

BETWEEN

AUSTRALASIAN CONFERENCE ASSOCIATION LIMITED

First Plaintiff

NEW ZEALAND CONFERENCE ASSOCIATION

Second Plaintiff

NEW ZEALAND HEALTH ASSOCIATION LIMITED Third Plaintiff

AND

A LITTLE BIT OF BRITAIN LIMITED First Defendant

LISA ELIZABETH WILSON Second Defendant

THE CHIEF EXECUTIVE OF THE NEW ZEALAND CUSTOMS SERVICE

Person required to be served

Hearing: 2 November 2017 (Determined on the papers)

Counsel:

S E Eden for Plaintiffs
K T Glover for Defendants

Judgment:

2 November 2017

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] The plaintiffs have withdrawn an application for summary judgment which

was scheduled to be heard by the Court on 29 November. The defendants ask for an

AUSTRALASIAN CONFERENCE ASSOCIATION LTD v A LITTLE BIT OF BRITAIN LTD [2017] NZHC
2684 [2 November 2017]

order that the plaintiffs pay their costs. The plaintiffs say that costs should be reserved.

[2] The defendants say they were put to the cost and inconvenience of preparing a notice of opposition and affidavit, that they put the plaintiffs on notice that they would seek costs if their defence of the application was successful, and that the plaintiffs had an opportunity to withdraw the application before a notice of opposition and affidavit were filed, because they were on written notice that the application would be opposed.

[3] The plaintiffs say that they did not withdraw the application on the basis that there was an arguable defence. Rather, they now consider it preferable for the proceeding to go to trial, there being arguments in relation to s 153 of the Trademarks Act 2002, and in relation to sales for infringing goods in terms of s 89.

[4] I have considered the proceeding and the submissions made by counsel. As a matter of general practice it is preferable for costs to be determined after resolution of the substantive proceeding, where a summary judgment application is unsuccessful. Here, that is not the case but in my opinion the same principle should apply. There are plainly arguments both ways in relation to the issues raised in this case and in my opinion costs should be determined when the answer of the Court has been given on those issues.

[5] Counsel for the defendants noted and relied on the decision in Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd,1 a case in which the plaintiff withdrew an application for summary judgment and the Court awarded costs against it. That case, however, is plainly distinguishable. There was clear fault on the part of the plaintiff in issuing summary judgment in the first place for all the reasons set out at some length in the judgment. That is not the position in
the present case.

1 Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd [2016] NZHC
1244.

[6] Costs are reserved.

J G Matthews
Associate Judge

Solicitors:
Shieff Angland, Auckland
Rachel Colley, Auckland
Crown Law, Wellington

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the Australasian Conference Association Limited, the New Zealand Conference Association, and the New Zealand Health Association Limited brought a claim against A Little Bit of Britain Limited and Lisa Elizabeth Wilson. The plaintiffs sought to have the defendants' opposition to their application for summary judgment dismissed, with an order for the defendants to pay their costs. The plaintiffs had withdrawn their application for summary judgment, and the defendants sought an order that the plaintiffs pay their costs. The plaintiffs argued that costs should be reserved until the substantive matter was decided.

The court was required to decide whether the plaintiffs should be ordered to pay the defendants' costs following the withdrawal of the application for summary judgment. The court considered the submissions made by the parties and whether the case was distinguishable from the decision in Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd, a case in which the plaintiff was ordered to pay costs after withdrawing an application for summary judgment.

The court found that while it was generally preferable for costs to be determined after resolution of the substantive proceeding, where a summary judgment application is unsuccessful, this was not the case here. However, the court held that the same principle should apply and that costs should be determined when the answer of the court had been given on the issues. The court found that the case was distinguishable from Emmons Developments New Zealand Ltd v Mitsui Sumitomo Insurance Co Ltd because there was no clear fault on the part of the plaintiff in issuing the summary judgment application in the first place. Therefore, costs were reserved.

The court reserved costs pending the resolution of the substantive matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	2 November 2017 (Determined on the papers)
Counsel:	S E Eden for Plaintiffs K T Glover for Defendants
Judgment:	2 November 2017