Noble Engineering Pty Limited v Tianjian Noble Boats International Pty Ltd [2010] FCA 544

FEDERAL COURT OF AUSTRALIA

Noble Engineering Pty Limited v Tianjian Noble Boats International Pty Ltd [2010] FCA 544 Citation: Noble Engineering Pty Limited v Tianjian Noble Boats International Pty Ltd [2010] FCA 544

Parties: NOBLE ENGINEERING PTY LIMITED ACN 010 768 742 v TIANJIAN NOBLE BOATS INTERNATIONAL PTY LTD ACN 133 581 487

File number: QUD 299 of 2009

Judge: REEVES J

Date of judgment: 31 May 2010

Catchwords: PRACTICE AND PROCEDURE – Summary judgment application made by respondent – Defence raised by respondent under s 123 of Trade Marks Act 1995 (Cth) – Moving party bears the onus in a summary judgment application – Consideration of the test under s 31A of Federal Court of Australia Act 1976 (Cth) – Respondent must show that because of the s 123 defence, the applicant has no reasonable prospects of successfully prosecuting the proceedings – Consideration of whether the evidence reveals a real issue of fact to be resolved for the respondent's defence to succeed – While s 31A lowers the threshold for summary judgment applications, the Court must ensure that litigants are not unjustly shut out from litigating an issue that is fairly arguable – A pivotal fact raised by the respondent's defence not established and therefore respondent failed to discharge its onus PRACTICE AND PROCEDURE – Security for costs application made by respondent – Applicant admitted to being impecunious – Security for costs opposed because applicant could not meet an order in the amount sought and that would stifle the proceedings – Staged payments found to be the best way to deal with the application

Legislation: Trade Marks Act 1995 (Cth) ss 9, 123(1) Federal Court of Australia Act 1976 (Cth) ss 31A(2), 31A(3), 56 Federal Court Rules O 11 r 14, O 28 r 3 Corporations Act 2001 (Cth) s 1335