Appliance dealer given injunction

Press, 3 July 1985, Page 6

Appliance dealer given injunction

An injunction to stop Noel’s Appliance Centre, Ltd, a home appliance retailer, from using the word “Noel” in its business without clearly distinguishing its trade from that of the Noel Leeming group of companies was granted by Mr Justice Holland in a reserved decision in the High Court yesterday. His Honour held that Noel’s Appliance Centre, which is owned by Mr Noel Wellborne, had indulged in “passing off” and granted the injunction but not in the wide terms that had been sought. “I am not satisfied on the evidence that an injunction in any wider terms is required. The Noel Leeming group cannot have damages at common law and equitable damages. On being required to elect which remedy was desired counsel decided on equitable damages,” his Honour said. The question of damages was adjourned for further consideration but the Noel Leeming group was gt-anted costs. The case was heard on ’ three days last month. Messrs J. G. Fogarty and T. C. Weston appeared for the Noel Leeming group and Mr C. A. McVeigh for the defendant* company, which opposed the granting of the injunction and damages. Mr Justice Holland said that the proceedings raised an interesting point concerning the admissibility of evidence relating to a public survey conducted in Christchurch by the Heylen Research Centre. Mr McVeigh objected to the admissibility of that evidence on the ground that it was hearsay. “With respect to the textbook writers I am of the

view that the evidence given here is not hearsay at all. The evidence given by the interviewers of the results of their interviews was no more than testimony tendered as a foundation for the expert opinion evidence of qualified experts,” his Honour said. “Had there been no evidence from the duly qualified experts the evidence of the interviewers might well have been inadmissible as containing hearsay and no more.” In this case, the evidence of the interviewers was tendered not to establish the truth of what was contained in the interviews but the fact that the interviews had been conducted and certain results obtained. The evidence was a necessary

foundation for the opinion evidence of the experts.

It had been strenuously challenged by the defendant company that there had been any misrepresentation and it had been submitted that there had been no element of deceit or dishonesty. There had been relatively little evidence of confusion. The defendant was not Noel Wellborne but was a limited liability company and even if the real defendant was Noel Wellborne it was not an attempt to trade in his own name but as Noel’s Appliance Centre. “I hold that trading under that name is passing off and it accordingly follows that the Noel Leeming group is entitled to an injunction,” his Honour said.