Mediaflow Limited v Marin

[2024] NZHC 2369

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-80

[2024] NZHC 2369

UNDER

Section 164 of the Companies Act 1993

BETWEEN

MEDIAFLOW LIMITED

Applicant

AND

LUCAS MARIN

Respondent

Hearing:	21 May and 21 August 2024
Appearances:	B B Gresson and B Russell for Applicant D L Marriott for Respondent
Judgment Result:	21 August 2024
Reasons:	22 August 2024

JUDGMENT OF MCHERRON J

Table of Contents

1.       INTRODUCTION	[1]
Background to the dispute	[5]
Employment agreement between Mediaflow and Mr Marin	[10]
Access to Mediaflow software and source code	[16]
Mediaflow’s first injunction application	[19]
The present applications	[22]
Issues to be determined	[25]
Summary judgment application	[25](a)
Interim injunction application	[25](b)
2.       APPLICATION FOR SUMMARY JUDGMENT	[26]
Legal principles — summary judgment	[26]
Unfairness to Mediaflow of Mr Marin’s remuneration (as pleaded)	[32]
Application of s 161 of the Companies Act 1993	[33]
Burden of proof	[34]
Inadvertent April 2024 resolution	[36]
Mediaflow’s submissions	[38]

MEDIAFLOW LIMITED v MARIN [2024] NZHC 2369 [21 August 2024]

My assessment[41]

Major transaction not adequately pleaded[61]

Conclusion[65]

3.APPLICATION FOR INTERIM INJUNCTION[66]

Legal principles applicable in an injunction application[71]

Developments since the hearing[74]

Further affidavit of Mr Marin[76]

Further affidavit of Mr Akal[79]

Mediaflow’s submissions[83]

Mr Marin's submissions  [103]

My assessment[109]

Serious question to be tried[109]

Adequacy of damages[121]

Balance of convenience[127]

Overall justice[139]

4.RESULT[142]

Costs[145]

5.CONCLUDING OBSERVATIONS[149]

1.          INTRODUCTION

[1]A dispute has arisen between:

(a)two director/shareholders of Mediaflow Ltd,  David  Akal  and  Nahuel Lukomski; and

(b)Mediaflow’s third director/shareholder, Lucas Marin.1

[2]The dispute concerns:

(a)money paid by Mediaflow to Mr Marin; and

(b)control of software, source code and other services and tools paid for and used by Mediaflow.

[3]                 Messrs Akal and Lukomski have used their majority control of Mediaflow to bring the present proceeding against Mr Marin. Mediaflow seeks summary judgment and an interim injunction.

1      On 30 July 2024, Mr Marin resigned as a director. He remains a shareholder as at the date of this judgment.

[4]For the reasons below, I:

(a)decline the application for summary judgment;

(b)grant the interim injunction.

Background to the dispute

[5]                 Messrs Akal and Lukomski sought out Mr Marin in June 2020 to assist them with their new startup. They intended to provide digital photo and video recording equipment and services to various tourism operators in Queenstown. They were aware that Mr Marin had relevant experience as a software engineer in automated media production.

[6]                 These three men incorporated Mediaflow on 7 July 2020. Upon the company’s incorporation, each of them:

(a)held 33 per cent of Mediaflow’s shares; and

(b)became a director of the company.

[7]                 Difficulties soon arose. The relationship between Mr Akal and Mr Marin, in particular, soured from 2021. Mr Akal said Mr Marin restricted his access to software and source code, preventing Mr Akal from being able to deal with clients or develop and maintain hardware.   From Mr Marin’s  point of view, Messrs Lukomski and  Mr Akal began to withdraw from the…