Multimedia Communications Limited v Enable Services Limited

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-285

[2022] NZHC 3452

BETWEEN

MULTIMEDIA COMMUNICATIONS LIMITED

Applicant

AND

ENABLE SERVICES LIMITED

Respondent

Hearing:

3 October 2022

Counsel:

R M N Marsich for Applicant

H R Smith and S N O Hider for Respondent

Judgment:

15 December 2022

JUDGMENT OF EATON J

This judgment was delivered by me on 15 December 2022 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MULTIMEDIA COMMUNICATIONS LTD v ENABLE SERVICES LTD [2022] NZHC 3452 [15 December 2022]

Introduction

[1]                 The applicant, MultiMedia Communications Ltd (MMC), seeks leave to appeal an arbitral award determined by Peter Whiteside KC on 4 July 2022. The respondent, Enable Services Ltd (ESL), opposes the application.

Background

[2]                 The central dispute between the parties is the interpretation of cls 15.1 and 15.5 of the Ultra-Fast Broadband Connection and Deployment Services  Agreement  (UFB Agreement) dated 21 December 2012. These clauses relate to the relevant sources of liability and the maximum liability of ESL, as follows:

15. 1     Maximum liability of ESL

Subject to clause 15.4, in addition to its obligation to pay the Charges, the maximum aggregate liability of ESL to the Subcontractor under or in connection with this Agreement will be, in respect of all claims, proceedings, actions, liabilities, damages, costs, expenses or losses, $500,000.

…

15.5     Source of liability

The limitations and exclusions of liability in this clause 15 will apply however liability arises, whether in contract (including indemnities), equity, tort (including negligence), breach of statutory duty or otherwise.

[3]                 Also of relevance is cl 15.4, which sets out situations in which the limitations and exclusion of liability do not apply:

15.4     Exclusions

The limitations and exclusions of liability described in clauses 15.1 to 15.3 will not apply to or limit the liability of the Subcontractor or ESL for:

(a)any personal injury or death;

(b)any fraudulent, malicious or criminal act or omission; and

(c)breach of confidentiality under 13.1(a) (or any other confidentiality provisions under this Agreement) or a breach of clause 12.

[4]                 Pursuant to the UFB Agreement, ESL engaged MMC to deliver deployment and connection services to it—being those services required from time to time on request by ESL. Deployment services relate to the building of the network and the connection service work relates to the customers’ ability to connect to the network.

[5]                 On 29 October 2020,  ESL  gave  MMC  notice  of  non-renewal  of  the  UFB Agreement because it was not satisfied with MMC’s performance. MMC challenged the notice and sought an interim injunction to prevent ESL from acting on the notice of non-renewal, pending determination of the substantive dispute.

[6]                 MMC’s interim injunction application was dismissed on 19 March 2021. In a decision dismissing the application, Mander J observed that MMC submitted that the “limitation on liability [in cl 15] is a further reason why damages should not automatically be viewed as overriding the right to secure specific performance”.1

[7]                 On…