Buzacott and Company Limited v Cyclone Pty Ltd [1920] HCA 12

286 HIGH COURT

H.C.orA. Ricu J. I agree. 1920, w Srarxe J. I agree. TRUSTEES,

usw Appeal dismissed. Appellant to pay costs of —

AND AGENCY Co. Lrp. appeal of the respondent trustee and one set

Ptaate: of costs of the opposing respondents as ae between party and party; the respondent trustee to take out of the estate the difference

between party and party and solicitor and

client costs and any deficiency which he fails

* to recover from the appellant.

Solicitors for the appellant, Tolhurst & Druce. Solicitors for the respondents, Gair & Brahe; Malleson, Stewart, Stawell & Nankivell; adBeckett & Chomley: G. Shaw.

B.L. (HIGH COURT OF AUSTRALIA.) BUZACOTT & COMPANY LIMITED ' . APPELLANT; DEFENDANT, AND CYCLONE PROPRIETARY LIMITED . . RESPONDENT. Prarntirr,

ON APPEAL FROM A JUSTICE OF THE HIGH COURT.

H.C. or A, Practice—High Court—Appeal from Justice of High Court—Admission of further

1920. evidence—New trial—Terms—Rules of the High Court 1911, Part II., Sec. I., eo, r. 10.

Ta On an appeal to the Full Court of the High Court from the judgment of «

H Justice of that Court the appellant applied for leave to call further evidence.

Knox 0.3, The Court, being of opinion that further evidence should be taken, set aside

peat nineey. the judgment and ordered a new trial on the terms that the appellant should

pay the costs of the first trial and of the appeal.

ee

27 C.L.R.] OF AUSTRALIA.

Appgat from Isaacs J.

The Cyclone Proprietary Ltd., which was the owner of two designs registered under the Designs Act 1906, viz., No. 1053 regis- tered in respect of gates, &c., for a period of five years from 30th August 1912, which period was subsequently extended for a further five years, and No. 2697 registered in respect of gates for a period of five years from 13th June 1918, brought an action in the High Court against Buzacott & Co. Ltd. wherein the plaintiff alleged that the defendant without the licence or authority of the plaintiff had sold and offered and kept for sale gates to which the plaintifi's registered designs or fraudulent or obvious imitations thereof had been applied in infringement of the plaintiff's copyright in such designs. The plaintiff claimed an injunction, damages or an account of profits, and delivery up of infringing articles. One of the defences taken was that neither of the registered designs was new or original, but that each of them had been published and in use in connection with (inter alia) gates which were sold to the general public.