New Zealand Case Law: Decisions & Judgments

Topic

Additional damages

Legal area

Court

22 Sept 2017

OTOY NZ LTD v KOZLOV [2017] NZHC 2294

Citation

[2017] NZHC 2294
Court

High Court

Otoy owned the copyright in the Octane software; the striking similarities in source code, including identical typographical errors and UI defaults, and Kozlov's access during employment established that Kozlov copied a substantial part of the Octane software (primary infringement) and possessed infringing copies in the course of business (secondary infringement); the source code was confidential and was used without authorisation (breach of confidence); consequently Otoy was entitled to declarations, permanent injunctions, delivery up and destruction of infringing copies, nominal compensator…
20 Apr 2016

EIGHT MILE STYLE, LLC v THE NZ NATIONAL PARTY & OR [2016] NZHC 741

Citation

[2016] NZHC 741
Court

High Court

Application for a split trial was dismissed. The defendants bore the onus and although liability and quantum are separable, three factors tipped the discretion against a split trial: (1) the plaintiffs' claim for additional damages under s121(2) reduced the prospects of settlement on quantum, (2) the pleaded defence of innocent infringement under s121(1) meant quantum could not be reasonably deferred without undermining resolution, and (3) the multiplicity of third and fourth/fifth party downstream claims made separate hearings inefficient. The Court therefore refused the defendants' applicat…
25 Oct 2012

SKIDS PROGRAMME MANAGEMENT LTD V MCNEILL COA CA315/2011

Citation

COA CA315/2011
Court

Court of Appeal

Given appellants' partial success on appeal (establishing equitable breach and substantial increase in additional and exemplary damages) and respondents' greater overall success on injunctive and restraint issues, High Court costs are not left unchanged but must be reduced to reflect the appeal outcome and respondent misconduct; the Court therefore reduced the agreed High Court costs by 40% to $33,366 and awarded costs for the appeal to the appellants on a Band A basis less one-third plus approved disbursements.
8 Apr 2009

TINY INTELLIGENCE LTD V RESPORT LTD SC 55/2008

Citation

TINY INTELLIGENCE LTD V RESPORT LTD SC 55/2008
Court

Supreme Court

Section 121(2) must be construed as providing additional damages as an enhancement of damages, not as an independent remedy; therefore additional damages under s 121(2) cannot be awarded when the plaintiff elects an account of profits.
21 Oct 2008

TINY INTELLIGENCE LIMITED V RESPORT LIMITED SC 55/2008

Citation

SC 55/2008
Court

Supreme Court

The Supreme Court granted leave to appeal to determine the substantive legal question whether s 121(2) allows additional damages where an account of profits is elected; the Court did not decide the substantive issue in this order.
5 Aug 2008

TINY INTELLIGENCE LTD V RESPORT LTD CA CA270/06

Citation

openlaw-ac56ed01_3eac_4fb5_9c41_d7988ede91f8.pdf
Court

Court of Appeal

The Court followed Redrow: s121(2) does not permit additional damages to be awarded in conjunction with an account of profits; 'additional damages' are an enhancement to compensatory damages and are inconsistent with an accounting of profits, so the Judge below was correct to refuse additional damages when an account of profits was elected.

New Zealand Case Law

OTOY NZ LTD v KOZLOV [2017] NZHC 2294

EIGHT MILE STYLE, LLC v THE NZ NATIONAL PARTY & OR [2016] NZHC 741

SKIDS PROGRAMME MANAGEMENT LTD V MCNEILL COA CA315/2011

TINY INTELLIGENCE LTD V RESPORT LTD SC 55/2008

TINY INTELLIGENCE LIMITED V RESPORT LIMITED SC 55/2008

TINY INTELLIGENCE LTD V RESPORT LTD CA CA270/06