Futura Footwear Ltd v Salomon S.A.S (5459/2011) [2012] ZAKZDHC 68; 2012 BIP 169 (KZD) (30 October 2012)

Futura Footwear Ltd v Salomon S.A.S (5459/2011) [2012] ZAKZDHC 68; 2012 BIP 169 (KZD) (30 October 2012)

The court held that the general rule requires a peregrine plaintiff to provide security for costs to an incola defendant, as the defendant would otherwise face significant difficulty and inconvenience in enforcing a costs order abroad. The respondent's argument that ownership of a registered trademark constitutes immovable property was rejected, as immovable property in this context refers to land, not intellectual property. The presence of an incola co-plaintiff does not absolve the peregrine plaintiff from the obligation to provide security, and the financial strength of the co-plaintiff is not a decisive factor. Public interest considerations arising from the Counterfeit Goods Act...

Citation
[2012] ZAKZDHC 68
Parties
Applicant: Futura Footwear Limited; Respondent: Salomon S.A.S
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
30 October 2012
Case Number
5459/2011
Procedural Posture
Security for Costs Application / Judgment on Opposed Application
Outcome
Application for adjournment refused; order granted requiring the First Plaintiff to provide security for costs.
Judges
M Pillemer
Legal Topics
Security for Costs, Peregrinus and Incola, Judicial Discretion, Adjournment Application
Civil Procedure Security for Costs Peregrinus and Incola Judicial Discretion Adjournment Application

Case Brief

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Parties

Futura Footwear Limited

Applicant

Salomon S.A.S

Respondent

Procedural Posture

Security for Costs Application / Judgment on Opposed Application

Legal Issues

  1. 1 Whether a peregrine plaintiff must provide security for costs to an incola defendant.
  2. 2 Whether ownership of a registered trademark constitutes immovable property for purposes of security for costs.
  3. 3 Whether the presence of an incola co-plaintiff absolves the peregrine plaintiff from providing security.

Ratio Decidendi

The court held that the general rule requires a peregrine plaintiff to provide security for costs to an incola defendant, as the defendant would otherwise face significant difficulty and inconvenience in enforcing a costs order abroad. The respondent's argument that ownership of a registered trademark constitutes immovable property was rejected, as immovable property in this context refers to land, not intellectual property. The presence of an incola co-plaintiff does not absolve the peregrine plaintiff from the obligation to provide security, and the financial strength of the co-plaintiff is not a decisive factor. Public interest considerations arising from the Counterfeit Goods Act...

Court Disposition

Application for adjournment refused; order granted requiring the First Plaintiff to provide security for costs.

Orders

  • The First Plaintiff, Salomon S.A.S., is ordered to provide security for the costs of the First Defendant in the action under case no. 5459/2011 in an amount to be determined by the Registrar.
  • The First Plaintiff is ordered to pay the costs of the application for security for costs.