The New Zealand Court of Appeal denied an injunction, but allowed an account of profits and an assessment of damages for breach of contract.
12.
It was also asked that Stearns and Maslin provide a full account of profits derived from the sale of the bicycles and the alleged infringement of rights.
13.
I see no reason why, in practice, the availability of the remedy of an account of profits need disturb settled expectations in the commercial or consumer world.
14.
It is not as though this step would contradict some recognised principle applied consistently throughout the law to the grant or withholding of the remedy of an account of profits.
15.
The New Sombrero Phosphate Co sued for rescission based on non-disclosure, if they gave back the mine and an account of profits, or for the difference.
16.
The main argument against the availability of an account of profits as a remedy for breach of contract is that the circumstances where this remedy may be granted will be uncertain.
17.
The breach of common law directors'duties may enable a liquidator to recover property from a director, or may give the liquidator a right to an account of profits.
18.
My conclusion is that there seems to be no reason, in principle, why the court must in all circumstances rule out an account of profits as a remedy for breach of contract.
19.
In conducting an account of profits, the plaintiff is treated as if they were conducting the business of the defendant, and made those profits which were attributable to the defendant's wrongful actions.
20.
There is a light sprinkling of cases where courts have made orders having the same effect as an order for an account of profits, but the courts seem always to have attached a different label.
