BURDEN v DIXIE CUMMINGS NZ LTD [2016] NZHC 729

BURDEN v DIXIE CUMMINGS NZ LTD [2016] NZHC 729

Security for costs was ordered because plaintiffs were resident overseas, the evidence indicated an unwillingness to pay (including an unpaid Irish costs order) and enforcement against overseas entities raised practical difficulties; having found prima facie merits but not sufficient to displace security, the Court exercised its discretion to order staged security of NZD 75,000 for the copyright proceeding and NZD 50,000 for the trade mark proceeding, with non-payment resulting in a stay of the relevant proceeding and costs to the applicant on a 2B basis.

Citation
[2016] NZHC 729
Parties
First Plaintiff: Ian James Burden; Second Plaintiff: Plantation Grown Timbers (International) Limited; Third Plaintiff: Plantation Grown Timbers (Vietnam) Limited; First Defendant: Dixie Cummings New Zealand Limited; Second Defendant: Morrow Marketing Management Limited; Third Defendant: Craig Morrow; Fourth Defendant: Galaxy Home Vietnam Limited; Second Defendant: Burden Furniture (International) Limited; Third Defendant: Burden Furniture Co Limited; Fourth Defendant: Lindsay John Burden
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 April 2016
Procedural Posture
Interlocutory Application for Security for Costs in Related Copyright and Trade Mark Proceedings / Pre Trial, Interlocutory Application for Security for Costs Under High Court Rules R 5.45
Outcome
Security for costs granted in both proceedings; applicant awarded costs on a 2B basis for the single hearing
Legal Topics
Security for Costs, Enforcement of Foreign Judgments, Interlocutory Relief, Costs Orders, Stay Vs Strike Out
Trade Marks Law Copyright Law Fair Trading Act Civil Procedure Security for Costs Security for Costs Enforcement of Foreign Judgments Interlocutory Relief Costs Orders +1 more

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Parties

Ian James Burden

First Plaintiff

Plantation Grown Timbers (International) Limited

Second Plaintiff

Plantation Grown Timbers (Vietnam) Limited

Third Plaintiff

Dixie Cummings New Zealand Limited

First Defendant

Morrow Marketing Management Limited

Second Defendant

Craig Morrow

Third Defendant

Galaxy Home Vietnam Limited

Fourth Defendant

Burden Furniture (International) Limited

Second Defendant

Burden Furniture Co Limited

Third Defendant

Lindsay John Burden

Fourth Defendant

Procedural Posture

Interlocutory Application for Security for Costs in Related Copyright and Trade Mark Proceedings / Pre Trial, Interlocutory Application for Security for Costs Under High Court Rules R 5.45

Legal Issues

  1. 1 Whether security for costs should be ordered under r 5.45
  2. 2 Whether plaintiffs are unable or unwilling to pay adverse costs orders
  3. 3 Assessment of the merits of the plaintiffs' claims at interlocutory stage

Ratio Decidendi

Security for costs was ordered because plaintiffs were resident overseas, the evidence indicated an unwillingness to pay (including an unpaid Irish costs order) and enforcement against overseas entities raised practical difficulties; having found prima facie merits but not sufficient to displace security, the Court exercised its discretion to order staged security of NZD 75,000 for the copyright proceeding and NZD 50,000 for the trade mark proceeding, with non-payment resulting in a stay of the relevant proceeding and costs to the applicant on a 2B basis.

Court Disposition

Security for costs granted in both proceedings; applicant awarded costs on a 2B basis for the single hearing

Orders

  • The plaintiffs shall provide security for costs in proceeding CIV-2015-485-001608 in the sum of $75,000 to be paid as follows: the sum of $15,000 to be paid into Court within 10 working days of receipt of this judgment; the sum of $25,000 to be paid into Court at least 10 working days prior to the date set for the...
  • The plaintiffs shall provide security for costs in proceeding CIV-2014-404-002547 in the sum of $50,000 to be paid as follows: the sum of $10,000 to be paid into Court within 10 working days of receipt of this judgment; the sum of $15,000 to be paid into Court at least 10 working days prior to the date set for the...