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Marx v Ruban

Marx v Ruban

Case [2025] NZHC 594 21 March 2025

Breach of Contract

Breach of Fiduciary Duty

Derivative Action

Interim Injunction

Costs

Intellectual Property Law

Corporate Law & Governance

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3236

[2025] NZHC 594

UNDER the Companies Act 1993 and the Copyright Act 1994

BETWEEN

ROHAN GREGORY MARX

First Plaintiff

SHUTTLE SOLUTIONS LIMITED
Intended Second Plaintiff

AND

DMITRY RUBAN

First Defendant

SHUTTLESOFT LIMITED

Second Defendant

Hearing: 3 March 2025

Appearances:

K T Glover and Mr W H E Burbidge for First Plaintiff M J W Lenihan for First and Second Defendants

Judgment:

21 March 2025

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 21 March 2025 at 12 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
Gilding Baker Law, Whangārei K T Glover, Auckland
M Lenihan, Auckland Cowan Law, Auckland

MARX v RUBAN [2025] NZHC 594 [21 March 2025]

Introduction

[1] This dispute arises from a breakdown of the business relationship between Mr Marx and Mr Ruban, as directors and shareholders in a joint venture company called Shuttle Solutions Ltd (SSL).

[2] SSL was incorporated on 19 February 2021. Its intended business was providing software to facilitate customer pick-ups by shuttles. Mr Ruban wrote the software, called “PickMeUp”. Mr Marx had expertise in sales and marketing, so his role was to source clients who would use the software as a service (SaaS).

[3] Following disputes that arose between the two during 2024, Mr Ruban now intends to use the PickMeUp software himself in a new, competing business called Shuttlesoft Ltd.1 Mr Ruban contends that he is entitled to do so as the author of the software and owner of copyright. Mr Marx submits that Mr Ruban has no entitlement to do so, because the software was commissioned by SSL and ownership is vested in that company.

[4]Mr Marx applies for orders:

(a)granting permission to commence a derivative action on behalf of SSL;

(b)restraining Mr Ruban and his new company from:

(i)infringing SSL’s copyright by using software owned by the joint venture company;

(ii)otherwise breaching the duties that Mr Ruban owes to the company; and

(c)that Mr Ruban provide the source code for the PickMeUp software to SSL (in this context, Mr Marx or his nominee), to enable SSL to continue its business by licensing the software to third parties.

1 Shuttlesoft Ltd was incorporated on 15 October 2024, with Mr Ruban as its sole shareholder and director.

[5]The pleaded and proposed causes of action are as follows:

(a)Copyright infringement against Mr Ruban (by SSL).

(b)Copyright infringement against Shuttlesoft Ltd (by SSL).

(c)Breach of director duties against Mr Ruban (by SSL).

(d)Relief under s 164 of the Companies Act 1993 for breach of the Act by Mr Ruban (by Mr Marx).

(e)Relief under s 174 of the Companies Act for prejudicial conduct by Mr Ruban (by Mr Marx).

[6] The application for interim relief is advanced by Mr Marx personally, as well as on behalf of SSL as the intended second plaintiff if the Court permits the derivative action.

Factual background

[7] Mr…

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 Marx v Ruban

Details

AGLC: Marx v Ruban [2025] NZHC 594
Case: [2025] NZHC 594
Decision Date: 21 March 2025

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine ownership of software created by Dmitry Ruban, who claims ownership, and to decide if he and his company Shuttlesoft Ltd could use it without breaching any legal obligations. The plaintiffs, Rohan Marx and Shuttle Solutions Ltd (SSL), sought orders for Mr Ruban to stop using the software, which they argued belonged to SSL due to their joint venture. Mr Ruban argued that he, as the creator, owned the software and was entitled to use it as he saw fit. The substantive claim involved copyright ownership under the Copyright Act 1994 and the corporate opportunity doctrine under the Companies Act 1993. The interim application sought an injunction to prevent Mr Ruban and Shuttlesoft Ltd from using the software and to preserve evidence for the substantive proceedings.

The court found that the claims for derivative action were reasonably arguable, as there was evidence suggesting that the software was intended to be an asset of SSL. The court also found that the corporate opportunity doctrine applied, prohibiting Mr Ruban from using the software for his own benefit without the company's consent. The interim injunction was granted, restraining Mr Ruban and Shuttlesoft Ltd from using the software except for SSL's purposes, and from competing against SSL using the software or any derived versions. Mr Ruban was also prohibited from marketing or licensing the software. Costs were awarded to Mr Marx.

Orders