NIKE INTERNATIONAL V NAI HC AK CIV.2007-404-7590
Because the defendant had not filed any defence and was evading service, the Court exercised its power under High Court Rules r 465(2) to dispense with notice and entered judgment by default for the plaintiff in respect of the specified relief in paragraphs (a) and (b) of the first and second causes of action, with...
Source-derived case information.
- Citation
- openlaw-ac6bd4fe_d42a_4bcb_9bee_0fbcbaab7534.pdf
- Parties
- Plaintiff: Nike International Limited; Defendant: Sione Nai; Person to Be Served: Chief Executive of the New Zealand Customs Service
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 2 April 2008
- Procedural Posture
- Trade Mark Infringement / Judgment by Default
- Outcome
- Judgment by default entered for plaintiff
- Legal Topics
- Trade Mark Infringement, Default Judgment, Service of Process, Relief by Injunction and Account
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nike International Limited
Plaintiff
Sione Nai
Defendant
Chief Executive of the New Zealand Customs Service
Person to Be Served
Procedural Posture
Trade Mark Infringement / Judgment by Default
Legal Issues
- 1 Defendant failed to file a defence
- 2 Defendant evading service of process
- 3 Whether court may dispense with notice of default judgment under High Court Rules r 465(2)
Ratio Decidendi
Because the defendant had not filed any defence and was evading service, the Court exercised its power under High Court Rules r 465(2) to dispense with notice and entered judgment by default for the plaintiff in respect of the specified relief in paragraphs (a) and (b) of the first and second causes of action, with the plaintiff abandoning its claim for damages.
Court Disposition
Judgment by default entered for plaintiff
Orders
- Judgment by default in favour of the plaintiff in terms of paragraphs (a) and (b) of the relief sought in the first cause of action
- Judgment by default in favour of the plaintiff in terms of paragraphs (a) and (b) of the relief sought in the second cause of action
Full Case Text
Judgment text and source record
1 paragraphs
NIKE INTERNATIONAL V NAI HC AK CIV.2007-404-7590 2 April 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV.2007-404-7590UNDER the Trade Marks Act 2002 IN THE MATTER OF Trade mark infringement, proceedings in respect of goods bearing infringing signs BETWEEN NIKE INTERNATIONAL LIMITED Plaintiff AND SIONE NAI Defendant AND CHIEF EXECUTIVE OF THE NEW ZEALAND CUSTOMS SERVICE Person To Be Served Hearing: 2 April 2008 Counsel: Kim W McLeod for Plaintiff No appearance for Defendant Judgment: 2 April 2008[ORAL] JUDGMENT OF WILLIAMS J [Judgment by default in favour of plaintiff][1] These are proceedings issued by the plaintiff on 5 December 2007 alleging breach of its registered trademark. [2] The proceedings were served on the defendant, Mr Nai, on 12 December 2007 but he has not filed a statement of defence since that time.2 [3] The solicitors for Nike have been trying to serve Mr Nai with an application for judgment by default but it appears reasonably clear from the affidavit of Ms Cooper and the exhibited process server's report that Mr Nai is evading service. [4] Mr McLeod, for Nike, seeks judgment by default under R 465. Clearly the application qualifies in the sense that Mr Nai has failed to file any defence within the time allowed. The plaintiff has, however, not been able to give the required notice to Mr Nai of the application for judgment by default. That notwithstanding R 465(2) gives the Court power to dispense with the giving of such notice to the defendant where justice so requires, subject to an exception which is not presently relevant. [5] It seems clear that this matter can and should be brought to a conclusion. [6] Accordingly, there will be judgment by default in favour of the plaintiff in terms of paragraphs (a) and (b) of the relief sought in the first cause of action and also paragraph (a) and (b) in the second cause of action. [7] In the circumstances the plaintiff is foregoing the application for relief as it relates to damages. ..WILLIAMS J.Solicitors: A J Park , Patent & Trade Mark Attorneys, PO Box 565 Auckland Email: charmian.oh@ajpark.com kim.mcleod@ajpark.com Case Officer: Wendy.Pukeiti@justice.govt.nz