Ngati Tama Custodian Trustee Ltd v Phillips - [2018] NZHC 304

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-001317

[2018] NZHC 304

BETWEEN
NGATI TAMA CUSTODIAN TRUSTEE LIMITED

Plaintiff

AND

DAVID WILLIAM PHILLIPS

Respondent

Hearing: 2 February 2017 and 7 February 2018

Appearances:

J R Billington QC and J James for Plaintiff Respondent in Person

Judgment:

2 March 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 2 March 2018 at 11.00 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar
Date………………………

NGATI TAMA CUSTODIAN TRUSTEE LTD v PHILLIPS [2018] NZHC 304 [2 March 2018]

Introduction

[1] In a deed executed in March 2013, Ngati Tama Custodian Trustee Ltd and its associated parties settled a dispute with David Phillips and his associated parties relating to a company, My Virtual Home International Ltd (MVHI) in which both groups were shareholders. The dispute had been the subject of proceedings brought under CIV-2009-443-548 and CIV-2010-404-2197 which were later consolidated. In the deed of settlement Mr Phillips agreed that he would not assert any claim against Ngati Tama in relation to the dispute, the consolidated proceedings or any matter arising out of them. In 2016 Mr Phillips and a company he controls, Hambletonian Ltd, issued notices requiring Ngati Tama to cease its use of certain intellectual property that they asserted belonged to them. Ngati Tama claims that these notices breached the settlement agreement.

[2] In this proceeding Ngati Tama seeks a declaration that Mr Phillips is prohibited from commencing any proceeding against it or any other party to the deed “in relation to the MVH system proceedings or any other matter arising out of the MVH system proceedings”, an order for specific performance requiring him to comply with the terms of the settlement deed and orders prohibiting him from communicating to any third party that he has claims against Ngati Tama in relation to the intellectual property associated with a software system known as the MVH system.

[3] Ngati Tama has applied for summary judgment. In October 2016, pending determination of the summary judgment application, Muir J made an interim order prohibiting Mr Phillips from asserting, in any capacity, that he or Hambletonian has claims against Ngati Tama with respect to intellectual property associated with the MyVirtualHome system (MVH).

[4] Mr Phillips opposes the summary judgment application on the grounds that (1) the subject matter of the notices did not fall within the ambit of the settlement deed and (2) that the notices did not constitute the assertion of any claim and therefore did not amount to a breach of the deed of settlement. It is unnecessary to deal with the second ground in any detail. It is clear that the notices had the effect of asserting

claims against Ngati Tama. The only real issue is whether the subject matter of the notices falls within the ambit of the deed of settlement.

[5] The applicable principles are not in issue, having been summarised by the…

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: [2018] NZHC 304
Decision Date: 2 March 2018

CaseChat Overview and Summary

Ngati Tama Custodian Trustee Ltd brought an action against David Phillips for breach of a settlement deed. The deed settled a long-running dispute between the parties, including proceedings relating to the ownership of intellectual property associated with a software system known as the MVH system. In 2016 Phillips issued notices to Ngati Tama requiring them to cease their use of certain intellectual property. Ngati Tama claimed that these notices breached the settlement agreement. Ngati Tama sought summary judgment against Phillips. Phillips opposed the application on the basis that the notices did not fall within the ambit of the settlement deed. The court held that the notices did not breach the settlement deed because the subject matter of the notices did not fall within the ambit of the deed of settlement. The court dismissed Ngati Tama's application for summary judgment and discharged the interim injunction made by Muir J. The parties were to address the issue of costs.

Orders