Yellow Holdings Ltd v Eurobelt Ltd [2016] NZHC 2453 (14 October 2016)

Last Updated: 20 October 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-625 [2016] NZHC 2453

BETWEEN	YELLOW HOLDINGS LTD Plaintiff
AND	EUROBELT LTD Defendant

Hearing:	(On the papers)
Counsel:	D L Marriott for Plaintiff K T Glover for Defendant
Judgment:	14 October 2016

_{COSTS JUDGMENT OF BREWER J}

Solicitors: Potter IP Ltd (Auckland) for Plaintiff

Hudson Gavin Martin (Auckland) for Defendant

YELLOW HOLDINGS LTD v EUROBELT LTD [2016] NZHC 2453 [14 October 2016]

[1] The plaintiff sought interim injunctions against the defendant. One was to restrain the relevant actions of the defendant and the other was to direct that the defendant immediately assign the internet domain name www.yellow.net.nz to the plaintiff.

[2] I granted the restraining interim injunction and refused the mandatory interim injunction.

[3] I said that I would decide costs if the parties could not agree upon them. That has proven to be the case and this Judgment decides costs.

[4] The plaintiff seeks costs on a 2B basis. The defendant submits that costs should be reserved. Alternatively, the defendant submits that costs should be either awarded to the defendant or should lie where they fall.

[5] First, it is not appropriate for costs to be reserved. This was an interlocutory application and the general rule is that the Court must award costs on interlocutory applications as they are made.

[6] The defendant submits that given the relatively low threshold to be crossed in obtaining an interim injunction, there is no finding that is materially adverse to the defendant’s case. This constitutes a special reason exception to r 14.8. I disagree.

[7] Second, I do not agree that because the plaintiff did not obtain a mandatory interim injunction that costs should either be awarded to the defendant or lie where they fall. The plaintiff ’s principal objective was to ensure that the domain name was not used adverse to its interests pending resolution of the substantive claim. The application for a mandatory interim injunction was ancillary and amounted to a further legal point grafted to the factual matrix.

[8] I award costs to the plaintiff on a 2B basis. These can be calculated by the

Registrar if the parties disagree.

[9] The plaintiff, in its memorandum as to costs dated 7 July 2016, also asked me to direct that the defendant file a statement of defence. If the defendant has not yet

filed a statement of defence, then the plaintiff can exercise its right to apply for

_{judgment by default.}

Brewer J