Body Technology Pty Limited v Babak Moini & Ors [2010] NSWSC 1414

Body Technology Pty Limited v Babak Moini & Ors [2010] NSWSC 1414

The court had jurisdiction over the fifth and sixth defendants, the plaintiff had a strongly arguable case to rights in the website and domain name and to misleading and deceptive conduct, damages would be difficult to quantify if the fifth defendant continued publishing the material, and the earlier restraining orders had proved ineffective. The balance of convenience therefore favoured mandatory interlocutory orders requiring the sixth defendant to unlock the domain name and provide the transfer authorisation code and restraining the fifth defendant from preventing the transfer.

Jurisdiction
Australia
Judgment Date
01 December 2010
Procedural Posture
Application to Vary Interlocutory Orders / Interlocutory Application
Outcome
Application granted; earlier restraining order revoked and mandatory interlocutory orders made concerning transfer of the www.avana.com domain name.
Legal Topics
['interlocutory Injunctions' 'mandatory Injunctions' 'jurisdiction Over Foreign Defendants' 'domain Name Transfer' 'misleading and Deceptive Conduct' 'leave to Proceed in Absence']
['civil Procedure' 'equity' 'trade Practices'] ['interlocutory Injunctions' 'mandatory Injunctions' 'jurisdiction Over Foreign Defendants' 'domain Name Transfer' 'misleading and Deceptive Conduct' 'leave to Proceed in Absence']

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Procedural Posture

Application to Vary Interlocutory Orders / Interlocutory Application

Legal Issues

  1. 1 ['Whether the court had jurisdiction to make mandatory interlocutory orders against the fifth and sixth defendants concerning the www.avana.com domain name.' 'Whether there was a serious question to be tried in relation to the final relief sought by the plaintiff.' 'Whether the balance of convenience favoured granting mandatory interlocutory orders giving the plaintiff control of the website.' 'Whether the court should revisit the interlocutory orders made by Bryson AJ on 4 March 2010.']

Ratio Decidendi

The court had jurisdiction over the fifth and sixth defendants, the plaintiff had a strongly arguable case to rights in the website and domain name and to misleading and deceptive conduct, damages would be difficult to quantify if the fifth defendant continued publishing the material, and the earlier restraining orders had proved ineffective. The balance of convenience therefore favoured mandatory interlocutory orders requiring the sixth defendant to unlock the domain name and provide the transfer authorisation code and restraining the fifth defendant from preventing the transfer.

Court Disposition

Application granted; earlier restraining order revoked and mandatory interlocutory orders made concerning transfer of the www.avana.com domain name.

Orders

  • ['Grant the plaintiff leave to proceed against the fifth and sixth defendants in their absence pursuant to UPCR rule 11.4(1).' 'Revoke the order made on 4 March 2010 restraining the fifth and sixth defendants from publishing, broadcasting or distributing any content on the website www.avana.com in Australia.' "Order...