Ace-Kirker v Piper - [2017] NZHC 226

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-500 [2017] NZHC 226

BETWEEN
WAYNE LIONEL ACE-KIRKER

AND

MICHELLE LOUISE BAKER AS TRUSTEES OF THE UTOPIA FAMILY TRUST

Plaintiffs

AND

JAMES WILLIAM PIPER Defendant

Hearing: 21 February 2017

Appearances:

K Robinson for the Plaintiffs
R J Hollyman and S Laing for Defendant

Judgment:

21 February 2017

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Shine Lawyers, Albany, Auckland, for Plaintiffs
Spencer Legal, Auckland, for Defendant

Copy for:
R J Hollyman, Auckland, for Defendant

ACE-KIRKER AND BAKER v PIPER [2017] NZHC 226 [21 February 2017]

[1] The plaintiffs, trustees of the Utopia Family Trust, sue the defendant, a patent attorney, for alleged breaches of professional duty which they say resulted in certain patent applications failing. Mr Piper applies for summary judgment. He says that the plaintiffs’ causes of action cannot succeed for the following reasons:

(a) their claim is barred by the terms of an agreement made in 2013 under which earlier litigation was settled;

(b)the claim is an abuse of process because they are litigating matters that Mr Ace-Kirker should have raised in the earlier proceeding;

(c) the plaintiffs as trustees of the Utopia Family Trust do not have standing to sue, as Mr Ace-Kirker was his client;

(d)he did not breach any professional duties because the retainer terminated at the end of March 2010 and the matters that the plaintiffs allege against him occurred after that date; and finally

(e) the plaintiffs did not suffer any loss. Mr Ace-Kirker had the opportunity to maintain his patents and was not prevented from doing so by Mr Piper. Any failure by Mr Ace-Kirker to maintain his patent application was a result of his own impecuniosity.

[2] There is no dispute as to the principles applying on a defendant’s application for summary judgment under r 12.2(2)of the High Court Rules. The Court of Appeal’s decision in Westpac Banking Corporation v M M Kembla New Zealand Ltd
remains authoritative. 1

1 Westpac Banking Corporation v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA) at
[60]-[64].

Background

[3] Mr Ace-Kirker is an inventor. His inventions include security devices and other products. While he is the inventor, the arrangements (or the evidence) as to the ownership of the intellectual property rights in his inventions and trade marks and the right to exploit them are not straightforward. At one stage there was a partnership between Mr Ace-Kirker and a Mr Birkett for the development of products invented by Mr Ace-Kirker. Later a company, XFactor Quality Products Ltd, was formed, in which Mr Ace-Kirker and Mr Birkett were shareholders. That is said to have replaced the partnership. Later, the Utopia Family Trust was formed. At the same time Mr Ace-Kirker says that he assigned various intellectual property rights to the Trust. Neither the deed of the Utopia Family Trust nor the deed assigning the intellectual property has been put in evidence.

[4] There is evidence of a licensing agreement between the Trust…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ace-Kirker v Piper

Details

AGLC: Ace-Kirker v Piper [2017] NZHC 226
Case: [2017] NZHC 226
Decision Date: 21 February 2017

CaseChat Overview and Summary

The plaintiffs, trustees of the Utopia Family Trust, sought to sue the defendant, a patent attorney, for alleged breaches of professional duty which they say resulted in certain patent applications failing. The defendant applied for summary judgment, contending that the plaintiffs' claims could not succeed because the settlement of earlier litigation barred the claims, the claims constituted an abuse of process, the plaintiffs lacked standing, the defendant did not breach any professional duties, and the plaintiffs did not suffer any loss. The plaintiffs argued that the settlement did not bar their claims, that it was not an abuse of process to bring their claims, that they had standing to sue, and that there was a possibility that they suffered loss. The Court found that the settlement did not bar the plaintiffs' claims, that it was not an abuse of process to bring the claims, that the plaintiffs had standing to sue, and that there was a possibility that they suffered loss. The Court dismissed the defendant's application for summary judgment. The Court also directed the Registrar to arrange a first case management conference and invited the parties to confer as to the pleadings and discovery.

Orders