AQUA TECHNICS POOL & SPA CTRE NZ LTD V AQUA-TECH INDUSTRIES LTD CA CA257/05
Special leave to appeal was granted because the solicitor's error in service was excusable and there were arguable issues of public importance concerning the trade-mark that justified permitting the appeal; costs of $750 and usual disbursements were awarded to the respondent.
Source-derived case information.
- Citation
- openlaw-0fd302d0_890c_4053_ac4a_0923bb35f844.pdf
- Parties
- Applicant: Aqua Technics Pool and Spa Centre NZ Limited; Respondent: Aqua-Tech Industries Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 13 March 2006
- Procedural Posture
- Trade Mark Appeal From High Court / Application for Special Leave to Appeal
- Outcome
- Special leave to appeal granted.
- Legal Topics
- Special Leave to Appeal, Service of Documents, Costs, Jurisdiction
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aqua Technics Pool and Spa Centre NZ Limited
Applicant
Aqua-Tech Industries Limited
Respondent
Procedural Posture
Trade Mark Appeal From High Court / Application for Special Leave to Appeal
Legal Issues
- 1 Whether special leave to appeal should be granted despite a solicitor's error in service of appeal documents
- 2 Whether the proposed appeal has sufficient merit to be heard by this Court
- 3 Proper allocation of costs for the leave application
Ratio Decidendi
Special leave to appeal was granted because the solicitor's error in service was excusable and there were arguable issues of public importance concerning the trade-mark that justified permitting the appeal; costs of $750 and usual disbursements were awarded to the respondent.
Court Disposition
Special leave to appeal granted.
Orders
- Special leave to appeal granted.
- Respondent awarded costs of $750 and usual disbursements.
Full Case Text
Judgment text and source record
1 paragraphs
AQUA TECHNICS POOL & SPA CTRE NZ LTD V AQUA-TECH INDUSTRIES LTD CA CA257/05 13 March 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA257/05BETWEEN AQUA TECHNICS POOL AND SPA CENTRE NZ LIMITED Applicant AND AQUA-TECH INDUSTRIES LIMITED Respondent Hearing: 13 March 2006 Court: Glazebrook, Hammond and Cooper JJ Counsel: D L Marriott for Applicant K W McLeod and C A Tompkins for Respondent Judgment: 13 March 2006JUDGMENT OF THE COURT A. The application for special leave to appeal is granted. B. The respondent will have costs of $750 and usual disbursements. REASONS(Given by Hammond J)Introduction[1] This is an application for special leave to appeal, in relation to a trade-mark proceeding, from a decision of Venning J in the High Court.[2] The necessity for leave arises out of a solicitor's error in service of the documents relating to the appeal which was unfortunately compounded by the recent changes to the rules of this Court. We are satisfied that that error was excusable and is of little moment in the context of the application. [3] As to the merits of the application, Mr McLeod responsibly did not feel able to argue that the appeal would be entirely fruitless although he does strongly maintain that it is at best a thin appeal. [4] It is undesirable that we should pronounce on that at this stage. We are satisfied that there are arguments which should be advanced to this Court, particularly in a matter of this kind which has public implications as to whether there is a trade-mark, and which could very well generate other litigation by way of infringement proceedings, in the background of the case as it were, if the substantive issue is not resolved on this appeal. [5] In the circumstances, the leave sought is granted. The respondent will have costs of $750 and usual disbursements, the respondent having been put to the trouble of filing a notice of opposition and appearing today.Solicitors: A J Park, Auckland for Applicant James & Wells, Auckland for Respondent