CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170

CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170

Persistent and unjustified procedural default by the respondents, including disregard of multiple court orders and failure to provide affidavits, justified entry of judgment in favour of the applicants under Rule 5.23(2)(c). The applicants' pleadings disclosed sufficient basis for the grant of permanent injunctions for trade mark infringement and passing off, as well as delivery up. The conduct of the respondents warranted indemnity costs as litigation misconduct.

Jurisdiction
Australia
Judgment Date
07 October 2011
Procedural Posture
Practice and Procedure Default Judgment / Application for Default Judgment Following Procedural Non Compliance
Outcome
Judgment for applicants; respondents' defences struck out; permanent injunctions granted; damages to be assessed; costs orders in favour of applicants, including indemnity costs; orders stayed for 7 days.
Legal Topics
['default Judgment' 'trade Marks' 'passing Off' 'costs (indemnity and Ordinary Basis)']
['intellectual Property' 'civil Procedure'] ['default Judgment' 'trade Marks' 'passing Off' 'costs (indemnity and Ordinary Basis)']

Case Brief

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Procedural Posture

Practice and Procedure Default Judgment / Application for Default Judgment Following Procedural Non Compliance

Legal Issues

  1. 1 ["Whether respondents' persistent procedural defaults and failure to comply with court orders justify judgment being entered against them under Rule 5.23(2)(c) of the Federal Court Rules 2011" 'Whether the applicants are entitled to permanent injunctions restraining use of a registered trade mark and for passing off' 'Whether indemnity costs should be ordered for litigation misconduct']

Ratio Decidendi

Persistent and unjustified procedural default by the respondents, including disregard of multiple court orders and failure to provide affidavits, justified entry of judgment in favour of the applicants under Rule 5.23(2)(c). The applicants' pleadings disclosed sufficient basis for the grant of permanent injunctions for trade mark infringement and passing off, as well as delivery up. The conduct of the respondents warranted indemnity costs as litigation misconduct.

Court Disposition

Judgment for applicants; respondents' defences struck out; permanent injunctions granted; damages to be assessed; costs orders in favour of applicants, including indemnity costs; orders stayed for 7 days.

Orders

  • ["The respondents' defences of 27 June 2011 and 5 July 2011 be struck out." 'Judgment be given for the applicants on their claim against the respondents, with damages to be assessed, pursuant to rule 5.23(2)(c) of the Federal Court Rules 2011.' 'The respondents be permanently restrained from using Registered Trade...