Multimedia Communications Limited v Enable Services Limited - [2021] NZHC 568

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-607

[2021] NZHC 568

BETWEEN
MULTIMEDIA COMMUNICATIONS LIMITED

Plaintiff

AND

ENABLE SERVICES LIMITED

Defendant

Hearing: 24 February 2021

Appearances:

S P Rennie and W G C Templeton for Plaintiff H R Smith and S N O Hider for Defendant

Judgment:

19 March 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 19 March 2021 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

MULTIMEDIA COMMUNICATIONS LIMITED v ENABLE SERVICES LIMITED [2021] NZHC 568 [19
March 2021]

[1] The plaintiff, Multimedia Communications Limited (Multimedia), applies for an interim injunction to restrain the defendant, Enable Services Limited (Enable), from giving effect to its decision not to renew its contract with Multimedia. The dispute arises from an ultra-fast broadband connection and deployment services agreement (the Agreement) entered into between the parties on 21 December 2012. Multimedia seeks to restrain the cessation of the performance of Enable’s obligations under the Agreement until such time as the validity of its notice of non-renewal is determined by arbitration.

Background

[2] Multimedia provides a range of information and electrical services to telecommunications network owners. It has a particular expertise in fibre networks and has completed projects for a number of national telecommunications providers, as well as utilities companies and government agencies. Enable is the fibre broadband network provider for greater Christchurch and is one of a number of companies controlled by a holding company that is owned by the Christchurch City Council.

[3] In 2012, Enable approached Multimedia regarding the rollout of ultra-fast broadband and the parties subsequently entered into an agreement for the delivery and provision of connection and other services in Christchurch and its surrounding areas on a non-exclusive basis. The Agreement provided for the engagement of Multimedia on a project-by-project basis. Multimedia would receive a service order from Enable outlining the type of services required by it and the charges to be paid to Multimedia on delivery of those services. Upon Multimedia’s acceptance of the service order it would deliver the services required.

[4] Between 2012 and 2020 work was undertaken by Multimedia under the Agreement. The work it performed included the scoping and building of residential connections, commercial installations, multiple dwelling units (both residential and commercial), and the provision of other services. Over that time a number of formal amendments were made to the Agreement, including in June 2016 when the initial term of the Agreement was extended from five to eight years and a change made to

the terms of the renewal clause that is detailed below at [10]. The parties also entered into separate arrangements in respect of work falling outside of the Agreement.

[5] Throughout this period the parties were in periodic communication with each other regarding Multimedia’s performance of its obligations under the Agreement, including about changes and required improvement to services, and compliance matters. The parties held regular operational meetings…

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: [2021] NZHC 568
Decision Date: 19 March 2021

CaseChat Overview and Summary

The plaintiff, Multimedia Communications Limited, applied for an interim injunction to prevent the defendant, Enable Services Limited, from ceasing to perform its obligations under their ultra-fast broadband connection and deployment services agreement. Multimedia challenged the validity of Enable's non-renewal notice, arguing that the agreement should have automatically extended due to Multimedia's satisfactory performance and Ancillary Service Levels. Enable denied any breach and maintained its right to exercise discretion based on dissatisfaction with Multimedia's performance. The court considered whether there was a serious question to be tried, finding that while Multimedia's arguments had some merit, they were not so obviously wrong as to dismiss them. However, the court concluded that the balance of convenience did not favour granting the injunction as it would not materially affect Multimedia's commercial position and could lead to further disputes. Damages were considered an adequate remedy, and the overall justice did not favour granting the injunction. Multimedia's application was declined, and Enable was entitled to costs.

Orders