Date: 19981022
Docket: T-407-98
BETWEEN:
REVOLVING MEDIA CANADA INC.,
Plaintiff,
- and -
JÜRGEN RICHARD MÜNKNER, and
IAP (INTERNATIONAL AIRPORT PROMOTION) n.v.,
Defendants.
REASONS FOR ORDER AND ORDER
ROULEAU, J.
[1] This matter first came before me on the 30th day of September, 1998 at which time I was to entertain an application on behalf of the Plaintiff seeking default judgment against the Defendants. When I was about to entertain the motion a counsel appeared, acting on behalf of one Jürgen Richard Münkner, one of the co-inventors. He sought leave to be added as a party Defendant, advising the Court that he had just been recently retained since his client had just recently re-acquired an interest in the patent at suit.
[2] Counsel for the Plaintiff explained the difficulties being faced by the Plaintiff because of the delays; this matter originated in March of 1998 and to date his client has suffered interuptions to his ongoing business; there was still considerable dispute as to the validity of the Defendants' patent and infringment.
[3] I then suggested that since this new Defendant seeking to be added being outside the jurisdiction of the Court and in view of the lengthy delays occasioned by other parties causing a detrimental effect on the Plaintiff's position as well as his business, I suggested that this new Defendant should post security for costs of $10,000 and that he would pay costs to date to the Plaintiff of $5,000 as thrown away; that the Plaintiff would amend his Statement of Claim to reflect what was required and the Defendant be allowed a certain period of time to file a Statement of Defence.
[4] I then adjourned the matter in order to allow the parties to discuss my suggestions and that I would return following a brief recess.
[5] Upon returning to the Courtroom it appeared to me that both parties had apparently agreed to my suggestions. I did not issue an Order, but merely a Direction to the file which is dated October 6, 1998 in which I confirmed the following:
| Further to parties' appearance before me in Court on October 5, I adjourned the outstanding matters with the understanding that a draft order would be prepared by counsel after having reached an agreement during the recess. It is my understanding that the Defendant Jürgen Münkner, through his counsel, shall pay a further sum of $10.000.00 for security for costs either in Court or in trust, whichever can be agreed upon, and that they shall further provide $5,000.00 in costs payable to the Plaintiff and thrown away. I believe it was further agreed that the Defendant Münkner was to file a Statement of Defence within 14 days. If parties cannot agree on a draft order, I will so direct on the 19th of October next. |
[6] Following the issuance of my Direction the Plaintiff did file and serve an Amended Statement of Claim on the 6th day of October, 1998; on the 16th day of October, 1998, counsel filed a Statement of Defence for Jürgen R. Münkner. Since I had not issued an Order and counsel could not agree to the proposed settlement that I had suggested at the hearing on September 30th, 1998, the matter was brought before the Prothonotary on the 19th of October, 1998, and it was submitted by counsel for the added Defendant that the matter was now moot. This was so found by the Prothonotary, under the objection of the Plaintiff. The Prothonotary wrote in his Order "This matter is now moot by reason of the direction of Mr. Justice Rouleau and the defence filed 16 October 1998.".
[7] Both parties however have since filed written submissions which I have now reviewed.
[8] The Defendant still having not complied with my Direction as to costs and security for costs, I hereby Order as follows.
ORDER
| 1. The Defendant shall pay to the Plaintiff the sum of $5,000.00 for costs, thrown away; |
| 2. The Defendant shall post as security for costs the amount of $10,000.00; and |
| 3. Failure to comply within 30 days from the date of this Order, the Statement of Defence of the Defendant Jürgen R. Münkner shall be struck. |
(Sgd.) "P. Rouleau"
Judge
Vancouver, British Columbia
October 22, 1998