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Intellihub Ltd v Genesis Energy Ltd

Intellihub Ltd v Genesis Energy Ltd

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Case Copied 13 August 2020 22 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA285/2020
[2020] NZCA 344

BETWEEN	INTELLIHUB LIMITED Appellant
AND	GENESIS ENERGY LIMITED First Respondent ADVANCED METERING SERVICES LIMITED TRADING AS VECTOR AMS Second Respondent

Hearing:	27 July 2020
Court:	Collins, Peters and Whata JJ
Counsel:	J D McBride and A W McDonald for Appellant S J P Ladd with B A Keown and D M Scholes for First Respondent S M Hunter QC with I Rosic and S T Coupe for Second Respondent
Judgment:	13 August 2020 at 9.00 am

JUDGMENT OF THE COURT

AThe applications for leave to adduce further evidence are granted.
BThe appeal is dismissed.
CThe appellant must pay the first and second respondents costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

Intellihub Ltd (Intellihub) and Advanced Metering Services Ltd (Vector) compete with each other to supply electricity meters. Genesis Energy Ltd (Genesis) is a retailer of electricity and other energy products. Approximately 45,000 Genesis customers use meters that are owned and operated by Intellihub.
In October 2019, Genesis entered into a contract with Vector for the supply of new meters and required Vector to decommission the Intellihub meters used by Genesis customers. Genesis agreed to defer the commencement of this project until 1 April 2020 because of the potential impact its new business arrangements will have on Intellihub.
On 18 March 2020, Intellihub commenced proceedings against Genesis and Vector. It also sought an interim injunction to prevent Genesis and Vector decommissioning Intellihub’s meters, pleading that Genesis is:
(a)intentionally causing harm to Intellihub by unlawful means (unlawful means cause of action); and
(b)in breach of an implied term of its contract with Intellihub whereby, according to Intellihub, Genesis is required to give three to five years’ notice to displace Intellihub’s meters (breach of contract cause of action).

No cause of action is pleaded against Vector.

In a judgment delivered on 24 April 2020, Katz J dismissed Intellihub’s application for an interim injunction.[1] The High Court Judge held:
(a)there was no serious question to be tried in relation to the unlawful means cause of action;
(b)there was a serious question to be tried in relation to the breach of contract cause of action;
(c)the balance of convenience weighed against issuing an interim injunction; and
(d)the overall justice of the case also weighed against issuing an interim injunction.
[1]Intellihub Ltd v Genesis Energy Ltd [2020] NZHC 807 [High Court judgment].
The issues raised by Intellihub’s appeal are encapsulated in the following questions:
(a)Did the High Court apply the correct legal test when determining there was no serious question to be tried in relation to the unlawful means cause of action?
(b)Did the High Court err when concluding there was no serious question to be tried in relation to the unlawful means cause of action?
(c)Did the High Court err when concluding the balance 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.

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Details

Case: [2020] NZCA 344
Decision Date: 13 August 2020 at 9.00 am

CaseChat Overview and Summary

Intellihub Ltd (Intellihub) appealed the decision of Katz J to dismiss its application for an interim injunction. Intellihub sought the injunction to prevent Genesis Energy Ltd (Genesis) from decommission meters owned by Intellihub and operated by Advanced Metering Services Ltd (Vector). Intellihub argued that Genesis was acting unlawfully by requiring Vector to decommission its meters and that Genesis was in breach of contract for failing to give Intellihub sufficient notice to displace its meters. The appeal was dismissed. The Court found there was no serious question to be tried in relation to the unlawful means cause of action. It was not seriously arguable that Genesis intended to harm Intellihub by interfering with Vector’s ability to deal with Intellihub. Nor was it seriously arguable that Intellihub had an economic interest in Vector. The balance of convenience weighed against the granting of an interim injunction. The Court found the impact of the injunction on Vector, an innocent third party, was significant and damages would be an adequate remedy for any loss suffered by Intellihub. The appeal was dismissed and Intellihub ordered to pay costs.

Orders