Green Way Ltd v Mutual Construction Ltd - [2021] NZHC 1704

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-1053

[2021] NZHC 1704

UNDER Copyright Act 1994 Fair Trading Act 1986

IN THE MATTER OF

Breach of Confidence Inducing Breach of Contract Conspiracy

Copyright Infringement Conversion

Misleading and deceptive conduct

BETWEEN

GREEN WAY LIMITED

Plaintiff

AND

MUTUAL CONSTRUCTION LIMITED

First Defendant

Continued…

Hearing: 30 June 2021

Appearances:

C Elliott QC and J B Scheirlinck for the Plaintiff J G Miles QC and R L White for the Defendants

Judgment:

8 July 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 8 July 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

GREEN WAY LIMITED v MUTUAL CONSTRUCTION LIMITED AND OTHERS [2021] NZHC 1704 [8 July 2021]

PHILLIP ANTHONY AINSWORTH
Second Defendant

ZHEHUA (WILLIAM) XIANG
Third Defendant

STEFAN MASUTTI
Fourth Defendant

[1] On 16 June 2021, the plaintiff, Green Way Ltd, filed this proceeding. At the same time Green Way applied, without notice, for a search order and an interim injunction against the first defendant, and for an order that the second, third and fourth defendants file an affidavit disclosing any documents or information in their possession belonging or relating to Green Way.

[2] On 17 June 2021, on a without notice basis, Lang J made the three orders sought by Green Way. On 18 June 2021, the search order was executed.

[3] The defendants apply for all three orders to be rescinded. They say Green Way did not apply in the correct form, did not certify it had complied with its obligations on an application without notice, and failed to discharge its obligation to make full and frank disclosure to the Court of all material facts.

Green Way’s substantive claim

[4] I will begin by outlining Green Way’s substantive allegations against the defendants. The defendants dispute many of the allegations.

[5] Green Way is a civil engineering and construction company. It was formed in 2013. It has almost 100 employees, and a substantial annual turnover.

[6] Since 2015 Green Way has specialised in providing deconstruction services, including asbestos removal and demolition. Green Way is a market leader in New Zealand in the asbestos removal industry. It has spent considerable time and money in developing processes and systems, and in hiring employees, that have allowed it to attain this leading position.

[7] Green Way has obtained four certifications for asbestos removal from Telarc, an auditing and assessment company. Green Way is the only asbestos removal company in New Zealand that holds all four certifications. This provides it with a significant competitive edge in a highly specialised technical market.

[8] The first defendant, Mutual Construction Ltd (MCL), is a building and construction company. Green Way says that from about March 2021 MCL has been

setting up a new branch of business, closely modelled on Green Way, specialising in asbestos removal and demolition.

[9] The second, third and fourth defendants are former employees of…

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 Green Way Ltd v Mutual Construction Ltd

Details

AGLC: Green Way Ltd v Mutual Construction Ltd [2021] NZHC 1704
Case: [2021] NZHC 1704
Decision Date: 8 July 2021

CaseChat Overview and Summary

Green Way Ltd initiated proceedings against Mutual Construction Ltd and three former employees, alleging breach of confidence, conspiracy, copyright infringement, conversion, inducing breach of contract, and misleading or deceptive conduct. Green Way sought a search order, an interim injunction, and an order compelling the former employees to file affidavits disclosing any documents or information belonging or relating to Green Way. Lang J granted the orders without notice. The defendants applied to rescind the orders, alleging Green Way had failed to comply with its obligations when applying without notice. The key issues were whether Green Way failed to comply with its obligations when making the application without notice, and if so, whether any of the orders should be rescinded. The court found that Green Way had not complied with the requirements of r 7.23 when making the application without notice, including failing to make full and frank disclosure of all material facts. The court rescinded the orders on the terms proposed by the defendants, ordering the independent solicitor and IT expert to return all documents and data obtained in execution of the search order to the defendants. The defendants were entitled to costs.

Orders