Date: 20030212
Docket: T-2277-01
Neutral citation: 2003 FCT 151
BETWEEN:
TANDOORI-KING RESTAURANT LTD.
Plaintiff
- and -
BESTWAY RESTAURANT LTD.
Defendant
[1] The plaintiff moves the Court in writing pursuant to Rule 369 for default judgment, the defendant having failed to file a statement of defence and to respond to the Order of Justice Heneghan dated December 5, 2002, to show cause why default judgment should not be entered.
[2] The defendant, who was served with this motion at the direction of Prothonotary Hargrave, opposes part of the relief sought in the underlying action.
[3] The plaintiff filed the motion for default judgment after it was indicated by Prothonotary Hargrave he would be scheduling a case management meeting if it was not going to move for default judgment.
[4] This action was launched on December 21, 2001. The plaintiff seeks to expunge the Defendant's registered logo design trade mark TMA 468128 registered in January 1997. The plaintiff also seeks a permanent injunction, damages and an accounting for profits as well as exemplary or aggravated damages and other relief.
[5] The president of the defendant is the brother-in-law of the president of the plaintiff and their dispute goes back to 1992 when the defendant purchased a restaurant from the plaintiff known as "Tandoori-King" (the "1992 purchase agreement").
[6] In 1995, the defendant sued the plaintiff in the Supreme Court of British Columbia alleging the plaintiff had breached the 1992 purchase agreement by establishing a restaurant near the one he purchased using a name which was the same or similar to his.
[7] The defendant alleges an oral agreement was brokered in 1996 by members of the two families which led to an accommodation and made it unnecessary for him to pursue his action.
[8] I need not deal with the tortuous history of this action except to say: (1) the plaintiff responded to a notice of status review by submitting it would move for default judgment (the defendant made no submissions); (2) Justice McGillis on October 16, 2002, ordered the action to continue as a specially managed proceeding and required the plaintiff to file and serve a motion for default judgment by October 25, 2002; (3) that motion was not responded to by the defendant and lead to Justice Heneghan's Order.
[9] The defendant is consenting to the expungement of its registered trade mark TMA 468128 registered by it, but contests the balance of the relief sought by the plaintiff on the grounds the parties had in 1996 resolved the issues arising out of the 1992 transaction.
[10] The defendant's defence comes very late in the day and it is inexcusable it should now emerge. It does appear the defendant does have elements of an arguable defence although it has not filed a statement of defence.
[11] I am reluctant, even at this late date, to foreclose a defence which may have merit, but the defendant must be sanctioned with solicitor-client costs because its conduct has been eggregious.
(Sgd.) "F. Lemieux"
Judge
Vancouver, British Columbia
February 12, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2277-01
STYLE OF CAUSE: TANDOORI-KING RESTAURANT LTD.
v. BESTWAY RESTAURANT LTD.
MOTION IN WRITING PURSUANT TO RULE 369 WITHOUT APPEARANCE OF COUNSEL
REASONS FOR ORDER: LEMIEUX J.
DATED: February 12, 2003
SOLICITORS OF RECORD:
D. Scott Lamb for Plaintiff
RBS Lawyers
Vancouver, B.C.
Brian J. Konst for Defendant
MacKenzie Fujisawa
Vancouver, B.C.