KD Kanopy Australasia Pty Ltd v Insta Image Pty Ltd [2007] FCA 812

FEDERAL COURT OF AUSTRALIA

KD Kanopy Australasia Pty Ltd v Insta Image Pty Ltd [2007] FCA 812 KD KANOPY AUSTRALASIA PTY LTD, TREVOR HUDSON DAND, KD KANOPY INC AND INSTANT MARQUEE SYSTEMS PTY LTD v INSTA IMAGE PTY LTD AND RICHARD WALDEN WALLACE AND BRENDA MARGARET WALLACE QUD 18 OF 2004 AND INSTA IMAGE PTY LTD, RICHARD WALDEN WALLACE AND BRENDA MARGARET WALLACE v KD KANOPY AUSTRALASIA PTY LTD, TREVOR HUDSON DAND, KD KANOPY INC, INSTANT MARQUEE SYSTEMS PTY LTD QUD 105 OF 2007

KIEFEL J

24 May 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 18 OF 2004

BETWEEN: KD KANOPY AUSTRALASIA PTY LTD

First Applicant/Cross Respondent

TREVOR HUDSON DAND

Second Applicant

KD KANOPY INC

Third Applicant

INSTANT MARQUEE SYSTEMS PTY LTD

Fourth Applicant

AND: INSTA IMAGE PTY LTD

First Respondent/Cross Claimant

RICHARD WALDEN WALLACE AND BRENDA MARGARET WALLACE

Second Respondent/Cross Claimants

JUDGE: KIEFEL J DATE OF ORDER: 24 may 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The respondents have leave to appeal the orders made on 3 April 2007. UPON THE RESPONDENTS, BY THEIR COUNSEL, UNDERTAKING: a. to prosecute their appeal from the judgement and orders made in proceeding QUD 18 of 2004 with all reasonable expedition; b. to keep full and proper accounts sufficient to readily enable an assessment of all imports and sales made, profits generated in relation to, and stocks held, of the products referred to in paragraph 2 of the order made in proceeding number QUD 18 of 2004 made on 24 April 2007, including the Caravan Instant Shelter product A or B, for the period from 3 April 2007 until the hearing of the appeal, such accounts to be made available on request to the applicants upon reasonable notice in writing. IT IS FURTHER ORDERED: 2. Until the hearing of the appeal, the respondents are not to divest themselves of any valuable assets or retained profits, or to encumber their assets or profits save in the ordinary course of business, and save insofar as it is necessary to provide the security herein ordered, without the leave of the Court. 3. Until the hearing of the appeal, the orders made in paragraph 2 of the order in proceedings QUD 18 of 2004, made 3 April 2007, be stayed. 4. Until the hearing of the appeal, the orders made in paragraphs 1 to 7 of the orders made in proceeding number QUD 18 of 2004 and QUD 105 of 2007, made on 24 April 2007, be stayed. 5. On or before 22 June 2007 each of the first respondent, and the second respondents jointly, provide to the Registrar of the Court an unconditional bank guarantee, in terms to the satisfaction of the Registrar, in favour of the applicants, in the sum of $250 000, securing the payment of any compensation ordered pursuant to the undertakings recorded and any sum ordered to be paid in respect of an account of profits or damages and costs in the event that the appeal does not succeed. 6. In the event that the security referred to herein is not provided by the date required, the stay on the operation of the orders provided in paragraphs 3 and 4 shall cease to operate. 7. The applicants have liberty to apply in the event that the appeal is not prosecuted with due diligence, or in relation to access to the books of account. 8. The respondents pay the applicants' costs of this application including any reserved costs.