WAIWERA WATER NEW ZEALAND LTD v MELROSE [2019] NZHC 221

WAIWERA WATER NEW ZEALAND LTD v MELROSE [2019] NZHC 221

The Court was satisfied there were surrounding circumstances from which it was reasonable to infer the plaintiff would be unable to meet a costs award (lease cancellation, exclusion from premises, inaccessible bottling plant, contradictory plaintiff evidence), and in exercise of its discretion ordered staged security of $25,000 to cover interlocutory steps to close of pleadings, with a stay if not paid and costs to defendant on a 2B basis.

Citation
[2019] NZHC 221
Parties
Plaintiff and First Counterclaim Defendant: WAIWERA WATER NEW ZEALAND LIMITED; Defendant and Counterclaim Plaintiff: DAVID MURRAY MELROSE; Second Counterclaim Defendant: WAIWERA GROUP LIMITED; Third Counterclaim Defendant: MIKHAIL KHIMICH; Fourth Counterclaim Defendant: LEON FINGERHUT; Fifth Counterclaim Defendant: WAIWERA, LLC; Sixth Counterclaim Defendant: O-I OPERATIONS (NZ) LIMITED; Seventh Counterclaim Defendant: OWENS-ILLINOIS, INC; Eighth Counterclaim Defendant: LINK PLAS LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 February 2019
Procedural Posture
Civil Intellectual Property (copyright/design/fair Trading) / Interlocutory — Application for Security for Costs
Outcome
Security for costs ordered; staged security fixed at $25,000 payable into Court within 10 working days; proceeding stayed as to plaintiff's claim if security not provided; defendant awarded costs on a 2B basis.
Legal Topics
Security for Costs, Groundless Threats, Declaration of Non Infringement, Registered Design Validity, Counterclaims
Intellectual Property Copyright Design Law Fair Trading Civil Procedure Security for Costs Groundless Threats Declaration of Non Infringement +2 more

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Parties

WAIWERA WATER NEW ZEALAND LIMITED

Plaintiff and First Counterclaim Defendant

DAVID MURRAY MELROSE

Defendant and Counterclaim Plaintiff

WAIWERA GROUP LIMITED

Second Counterclaim Defendant

MIKHAIL KHIMICH

Third Counterclaim Defendant

LEON FINGERHUT

Fourth Counterclaim Defendant

WAIWERA, LLC

Fifth Counterclaim Defendant

O-I OPERATIONS (NZ) LIMITED

Sixth Counterclaim Defendant

OWENS-ILLINOIS, INC

Seventh Counterclaim Defendant

LINK PLAS LIMITED

Eighth Counterclaim Defendant

Procedural Posture

Civil Intellectual Property (copyright/design/fair Trading) / Interlocutory — Application for Security for Costs

Legal Issues

  1. 1 whether there is reason to believe the plaintiff will be unable to pay the defendant's costs if unsuccessful
  2. 2 whether it is just to order security for costs in all the circumstances
  3. 3 what quantum and staging of security is appropriate

Ratio Decidendi

The Court was satisfied there were surrounding circumstances from which it was reasonable to infer the plaintiff would be unable to meet a costs award (lease cancellation, exclusion from premises, inaccessible bottling plant, contradictory plaintiff evidence), and in exercise of its discretion ordered staged security of $25,000 to cover interlocutory steps to close of pleadings, with a stay if not paid and costs to defendant on a 2B basis.

Court Disposition

Security for costs ordered; staged security fixed at $25,000 payable into Court within 10 working days; proceeding stayed as to plaintiff's claim if security not provided; defendant awarded costs on a 2B basis.

Orders

  • Plaintiff to pay $25,000 into Court or an agreed solicitor's trust account within 10 working days as security for the defendant's costs up to the close of pleadings date, leave reserved to defendant to apply for additional security thereafter
  • If $25,000 security is not paid within 10 working days this proceeding is stayed insofar as it involves the plaintiff's claim until security is provided