CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170

FEDERAL COURT OF AUSTRALIA

CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170 Citation: CNIP Pty Ltd v Chan & Naylor Norwest Pty Ltd (No 2) [2011] FCA 1170

Parties: CNIP PTY LIMITED ACN 122 763 240 and CHAN & NAYLOR PTY LIMITED v CHAN & NAYLOR NORWEST PTY LIMITED ACN 126 573 475 and SALVATORE ARCURI

File number: NSD 1766 of 2010

Judge: PERRAM J

Date of judgment: 7 October 2011

Catchwords: PRACTICE AND PROCEDURE – Default judgment – application for default judgment – disregard for Court directions and orders

Legislation: Federal Court Rules 2011 Rule 5.23(2)(c)

Cases cited: Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd (2006) 236 ALR 665 cited Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 cited

Date of hearing: 7 October 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 27

Counsel for the Applicants: Mr F Lever SC

Solicitor for the Applicants: Swaab Attorneys

Solicitor for the Respondents: Mr M Foley of Foleys Solicitors

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1766 of 2010

BETWEEN: CNIP PTY LIMITED ACN 122 763 240

First Applicant

CHAN & NAYLOR PTY LIMITED

Second Applicant

AND: CHAN & NAYLOR NORWEST PTY LIMITED ACN 126 573 475

First Respondent

SALVATORE ARCURI

Second Respondent

JUDGE: PERRAM J DATE OF ORDER: 7 OCTOBER 2011 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The respondents' defences of 27 June 2011 and 5 July 2011 be struck out. 2. Judgment be given for the applicants on their claim against the respondents, with damages to be assessed, pursuant to rule 5.23(2)(c) of the Federal Court Rules 2011. 3. The respondents be permanently restrained, whether by themselves or by their servants, agents or otherwise howsoever from using Registered Trade Mark Number 1094360 or any substantially identical or deceptively similar sign as a trade mark in relation to any services the subject of the registration or services of the same description. 4. The respondents be permanently restrained, whether by themselves or by their servants, agents or otherwise howsoever from: (a) passing off or falsely representing in trade or commerce that the services of the first respondent, namely accounting and financial services, are those of, or are associated with the services of or supplied by the second applicant; and (b) passing off or falsely representing in trade or commerce that the business of the first respondent is, or is associated with the business of the second applicant. 5. There be delivery up on oath by a responsible officer of the first respondent and by the second respondent to the applicants' solicitors of all goods and stationery in the possession, custody or control of each of them which infringes the second applicant's rights. 6. The respondents pay the costs of the applicants of their notice of motion dated 2 June 2011 on an indemnity basis. 7. The applicants be granted leave to have the costs of their notice of motion dated 2 June 2011 taxed forthwith. 8. The respondents pay the applicants' costs of the proceedings to date, other than those covered by the indemnity costs order in Order 6. 9. These orders be stayed for a period of 7 days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court's website.