Acting as senior counsel for the LEGO Group on claims against Zuru for trade mark infringement, passing off and breach of the Fair Trading Act. Opposing applications by Zuru for declarations of non-infringement. 12 day trial in the Auckland High Court in May 2023, judgment in favour of the LEGO Group (currently on appeal to the Court of Appeal). The High Court judgment was reported at (2023) 173 IPR 146.
Oraka v Geostel
Kevin2022-11-09T02:10:32+00:00Counsel for two of the defendants, Geostel and its director Paul Daynes, since June 2016. The case relates to industrial copyright in the design of a component called a cup used in asparagus-grading machines. I was instructed just after the High Court had awarded damages of $4.1m against my clients and another party, Napier Tool & Die, in 2016 – the largest award of damages for copyright infringement in New Zealand history.
That award was overturned by the Court of Appeal in 2016: reported at [2017] 2 NZLR 611. The High Court was directed to assess damages on a “user principle” (or notional licence fee) basis rather than lost profits. Geostel was awarded costs on Oraka’s abandoned application for leave to appeal to the Supreme Court: [2017] NZSC 79. There was a further six day trial in the High Court in 2017 including extensive expert evidence. The High Court set damages at $510,000, plus interest going back to 2005 which effectively doubled the amount due: reported at (2018) 131 IPR 363. This was reduced on appeal to $47,000: [2020] NZCA 256.
Brands Limited v Bed Bath ‘N’ Table Pty Limited
Kevin2023-10-30T23:37:57+00:00Senior counsel for New Zealand manchester and homewares retailer Bed Bath & Beyond in a claim for trade mark infringement, trade mark invalidity, passing off and breach of the Fair Trading Act by its competitor, Bed Bath N’ Table. Three week trial in the Wellington High Court held in July/August 2022.
Confidential
Kevin2023-10-31T00:32:05+00:00Senior counsel for the defendant on a claim for breach of contract and breach of confidence, set down for a two week trial in the Wellington High Court in September 2024.
Bayly v Hicks
Kevin2022-11-09T02:10:20+00:00Counsel for the respondents in the leading case on partition under the Property Law Act 2007. This involved extensive expert evidence on valuation, surveying and planning issues, with several hearings in the High Court and the Court of Appeal over 7 years: 7 day hearing in the High Court, 2011, reported at (2011) 13 NZCPR 568; Court of Appeal, 2012, reported at [2013] 2 NZLR 401; three day hearing in the High Court, 2015, following appointment of Court-appointed valuers and surveyors; resolved after Court of Appeal hearing was adjourned part-heard, 2016.
Justitiae Trustee Company Limited v NZF Nominees Limited
Kevin2023-10-30T23:44:56+00:00Counsel for a respondent on a trust dispute. Successful in High Court ([2021] NZHC 659) and awarded increased costs with indemnity ([2021] NZHC 1585). Also successful in opposition to set aside statutory demand based on the costs award (reported at [2022] NZCCLR 10).
Confidential
Kevin2023-05-06T02:43:57+00:00Counsel for the plaintiff on an interim injunction application relating to copyright, breach of confidence, breach of directors’ duties and Fair Trading Act.
Switch Lighting v Visionary Technologies
Kevin2021-10-28T02:32:34+00:00Counsel for the defendant on a patent and copyright infringement claim regarding LED lights in the Auckland High Court.
Wendco v Wiri Licensing Trust and Auckland Council
Kevin2022-11-09T02:10:11+00:00Counsel for the Wiri Licensing Trust (junior to Graham Kohler QC) on a significant dispute with its tenant, the operator of Wendy’s New Zealand. We successfully opposed two applications for interim injunction in lease dispute (2014). I also acted on the opposition to an application for judicial review regarding non-notification of resource consent application which went to the Supreme Court: High Court, 2014; Court of Appeal, 2015, (2015) 19 ELRNZ 328; and Supreme Court, 2016, [2017] 1 NZLR 1008.
Marr v Parkin
Kevin2020-07-06T05:17:25+00:00Counsel for the defendant on a High Court claim relating to purchase of a residential property (four day trial), with judgment for the defendant upheld on appeal. The issues included agency, knowing receipt, competing equitable priorities and the Credit Contracts and Consumer Finance Act. The Court awarded increased costs in relation to the proceeding and a related caveat matter: High Court, 2014; Court of Appeal, 2015; High Court costs judgment, 2015. In a separate proceeding between the same parties, the High Court made an order for possession of the property on summary basis (2015).