CORDOVA V WENZEL AND ANOR HC AK CIV 2005-404-3120

CORDOVA V WENZEL AND ANOR HC AK CIV 2005-404-3120

The defendants' applications to set aside were dismissed because there was no appearance and the affidavits disclosed no merit; the court used its power under r 143 to vary the summary judgment against the first defendant to order transfer of the domain name to the plaintiff because evidence showed the defendant had...

Source-derived case information.

Citation
openlaw-0eca59d6_fc90_4e24_a925_cb117f2a5fdc.pdf
Parties
Plaintiff: Doris Carmen Cordova; First Defendant: Shane Wenzel; Second Defendant: Robyn Marie Case; Third Defendant: Consulting Services and Inspections Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 February 2006
Procedural Posture
Civil Claim Under the Fair Trading Act and Related Intellectual Property Claims / Hearing of Applications to Set Aside Summary Judgments and to Vary a Summary Judgment (interlocutory Oral Judgment)
Outcome
Application by defendants to set aside judgments dismissed; plaintiff's application to vary the summary judgment against the first defendant granted in part (transfer of domain name conditional on proof of service); costs awarded to plaintiff on a 2B basis.
Legal Topics
Summary Judgment, Setting Aside Judgment, Variation of Judgment (r 143), Injunction, Transfer of Domain Name, Costs
Fair Trading Act Intellectual Property Domain Name Law Civil Procedure Summary Judgment Setting Aside Judgment Variation of Judgment (r 143) Injunction +2 more

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Parties

Doris Carmen Cordova

Plaintiff

Shane Wenzel

First Defendant

Robyn Marie Case

Second Defendant

Consulting Services and Inspections Limited

Third Defendant

Procedural Posture

Civil Claim Under the Fair Trading Act and Related Intellectual Property Claims / Hearing of Applications to Set Aside Summary Judgments and to Vary a Summary Judgment (interlocutory Oral Judgment)

Legal Issues

  1. 1 Whether the defendants' applications to set aside prior summary judgments and associated costs orders should be granted
  2. 2 Whether the summary judgment against the first defendant could be varied under r 143 to order transfer of the domain name 'moneyandyou.co.nz'
  3. 3 Whether the defendants had engaged in conduct breaching ss 9 and 13(f) of the Fair Trading Act by representing rights to use 'Money and You' and related endorsements

Ratio Decidendi

The defendants' applications to set aside were dismissed because there was no appearance and the affidavits disclosed no merit; the court used its power under r 143 to vary the summary judgment against the first defendant to order transfer of the domain name to the plaintiff because evidence showed the defendant had no right to the name and it was associated with the plaintiff; the variation is conditional on proof of service and costs were awarded to the plaintiff on a 2B basis.

Court Disposition

Application by defendants to set aside judgments dismissed; plaintiff's application to vary the summary judgment against the first defendant granted in part (transfer of domain name conditional on proof of service); costs awarded to plaintiff on a 2B basis.

Orders

  • The application dated 25 November 2005 by the defendants to set aside the judgments is dismissed with costs in favour of the plaintiff against all three defendants on a 2B basis.
  • Subject to an affidavit proving service of the application to vary, the judgment against the first defendant is varied under r 143 to order transfer of the domain name 'moneyandyou.co.nz' from the first defendant to the plaintiff, effective from the date the affidavit is filed.