Mark Stuart Hayes

Following the dismissal of a motion brought under Rule 45.02 of the Rules of Civil Procedure, the successful defendants sought costs of the motion.

The motion had been brought on very short notice and sought relief akin to a Mareva-type injunction, requiring the defendants to respond urgently.

The defendants requested substantial indemnity costs, while the plaintiff argued the matter was simple and proposed a modest costs award.

The court found the motion was not simple and that the defendants had been placed in a difficult position by the short notice, but held that the circumstances did not justify substantial indemnity costs.

Costs were therefore awarded on a partial indemnity basis.

The moving party sought an order under Rule 45.02 of the Rules of Civil Procedure requiring $1.1 million from the proceeds of the sale of a Hamilton property to be paid into court for interim preservation pending litigation.

The dispute arose from a property investment arrangement between long‑time associates, where the moving party alleged entitlement to a proportionate share of the profits based on funds invested.

The court held that the moving party did not establish a proprietary claim to a specific fund because he was merely an investor and had no proprietary interest in the sale proceeds held in an investment account.

Even if the first branches of the test were met, the balance of convenience did not favour the order as there was no evidence the responding parties intended to dissipate assets or frustrate enforcement of a potential judgment.

The motion was therefore dismissed with costs.

In a copyright appeal, the Court considered whether pre-existing sound recordings embedded in film and television soundtracks remain subject to equitable remuneration under s. 19 of the Copyright Act when the soundtrack accompanies a cinematographic work.

Applying modern statutory interpretation, the Court held that the soundtrack exclusion in the definition of sound recording captures pre-existing recordings in that context.

The Court found this reading consistent with the legislative scheme, parliamentary intent, and international obligations under the Rome Convention.

As a result, the proposed tariffs could not be certified for performances or communications of recordings when accompanying cinematographic works.