Croser v Focus Genetics Ltd Partnership (2548500) - [2019] NZHC 2995

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-625

[2019] NZHC 2995

BETWEEN
DAMIEN LEIGH CROSER and KIRSTEN LOUISE CROSER

Plaintiffs

AND

FOCUS GENETICS LIMITED PARTNERSHIP (2548500)

Defendant

Hearing:
6 November 2019

Further submissions and evidence 7, 12, 14 and 15 November
2019

Counsel:

C M Stephens and T Mijatov for Plaintiffs S M Bisley and P J Niven for Defendant

Judgment:

18 November 2019

JUDGMENT OF CHURCHMAN J

Background

[1] The plaintiffs are sheep farmers at Kiranda in South Australia. The defendant is a limited partnership based in Napier, New Zealand. It specialises in livestock genetics. It is controlled by Landcorp Farming Limited, a very substantial Government-owned farming enterprise.

[2] The defendant undertakes, or has undertaken, business relating to sheep genetics in three Australian states: New South Wales, Victoria and South Australia. In 2013, the parties commenced discussions with the intent that they would enter into an agreement whereby the plaintiffs would breed sheep utilising genetic material provided by the defendant.

CROSER & ANOR v FOCUS GENETICS LIMITED PARTNERSHIP (2548500) [2019] NZHC 2995
[18 November 2019]

[3]On 18 December 2013, the parties signed a written agreement.

[4] Evidence filed by the plaintiffs in parallel proceedings contains a claim that the terms of the written agreement were varied.1 The defendant denies that, and says that the total extent of the contractual terms between the parties is to be found in the December 2013 agreement. The Court has yet to resolve that issue.

[5] For the purposes of an interim injunction, the plaintiffs satisfied the Court that it was arguable that the December 2013 agreement does not accurately and comprehensively document the contractual arrangements which evolved between the parties.2

[6] As a result of that application, the Court ordered an interim injunction directing the defendant to provide the plaintiffs’ breeding plan consultant with certain genetic data held by the defendant on the plaintiffs’ sheep. That data was to be used for the purpose of creating a mating plan.

[7] The provision of that data allowed for the preparation of such a plan which ensured that the plaintiffs’ sheep were not inbred by mating with close relatives, and also ensured that the genetic value of the flock would be maintained.

[8] The original proceedings were set down for hearing to commence on 14 October 2019.

Developments

[9] By email of 2 October 2019, the Court was advised by counsel for the plaintiffs that the proceedings set down to commence on 14 October 2019 had been settled, and that the hearing could be vacated.

[10] For reasons that I need not go into, the matter did not settle as anticipated. This led to the plaintiffs issuing these proceedings on 25 October 2019 to enforce what the plaintiffs said was the settlement agreement.

1 Croser v Focus Genetics Limited Partnership (2548500) CIV-2019-485-164.
2 Croser v Focus Genetics Limited Partnership [2019] NZHC 627 at [57].

[11]In a separate application, the plaintiffs sought orders:

(a)for an…

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.

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Details

Case: [2019] NZHC 2995
Decision Date: 18 November 2019

CaseChat Overview and Summary

Croser v Focus Genetics Limited Partnership concerns a dispute between Australian sheep farmers and a New Zealand-based genetics company over the terms of a written agreement signed in December 2013. The plaintiffs claim that the written agreement does not accurately reflect the terms of the contractual arrangements which evolved between the parties, while the defendant denies this and asserts that the written agreement contains the total extent of the contractual terms between the parties. The court has yet to resolve this issue. The plaintiffs sought an interim injunction directing the defendant to provide certain genetic data held by the defendant on the plaintiffs' sheep, which allowed for the preparation of a mating plan and ensured that the plaintiffs' sheep were not inbred by mating with close relatives. The defendant opposed the application for urgency on a number of grounds, including that the urgency of the proceeding was considerably overstated and that the proposal was incomplete and unworkable. The court considered the legal tests for granting interim relief and found that the plaintiffs have an arguable case that they reached a binding settlement agreement with the defendant, and that the defendant appears to accept that the plaintiffs will suffer significant harm if they do not have access to at least some of the genetic data held by the defendant. The court found that damages would not be an adequate remedy for the plaintiffs but would be adequate for the defendant if an interim injunction were to be granted. The court granted the plaintiffs' application to use in these proceedings affidavit evidence and discovery material from the original proceedings and issued an injunction in the terms set out in the judgment.

The final orders of the court were that the plaintiffs' application to use in these proceedings affidavit evidence and discovery material from CIV-2019-485-164 is granted, an injunction will issue in the terms set out in the judgment, and the parties are directed to file within seven working days of this order, a joint memorandum setting out a proposed timetable order, or failing agreement, separate memoranda.

Orders