Peterson v Lucas - [2014] NZCA 6

IN THE COURT OF APPEAL OF NEW ZEALAND

CA40/2010
[2014] NZCA 6

BETWEEN	CARL JAMES PETERSON Appellant
AND	REX CAMERON LUCAS First Respondent
G W LUCAS & SONS PTY LTD Second Respondent

CA651/2011
AND BETWEEN	CARL JAMES PETERSON Appellant
AND	LUCAS MILL PTY LTD First Respondent
REX CAMERON LUCAS Second Respondent
WARREN GEOFFREY LUCAS Third Respondent
GEOFFREY WILFRED LUCAS Fourth Respondent
DOLORES VIVIENNE LUCAS Fifth Respondent

CA766/2012
AND BETWEEN	CARL JAMES PETERSON First Appellant
PETERSON PORTABLE SAWING SYSTEMS LTD (IN LIQUIDATION) Second Appellant
AND	REX CAMERON LUCAS First Respondent
G W LUCAS & SONS PTY LTD (NOW LUCAS MILL) Second Respondent

CA767/2012
AND BETWEEN	CARL JAMES PETERSON Appellant
AND	LUCAS MILL PTY LTD First Respondent
REX CAMERON LUCAS Second Respondent

CA768/2012
AND BETWEEN	CARL JAMES PETERSON First Applicant
PETERSON PORTABLE SAWING SYSTEMS LTD (IN LIQUIDATION) Second Applicant
AND	REX CAMERON LUCAS First Respondent
G W LUCAS & SONS PTY LTD (NOW LUCAS MILL) Second Respondent

Court:

O’Regan P, Ellen France and Wild JJ

Counsel:

C J Peterson in person
T J Walker and J C Dickson for Respondents

Judgment:

(On the papers)

11 February 2014 at 10.30 am

JUDGMENT OF THE COURT

AThe appeals in CA40/2010, CA651/2011, CA766/2012 and CA767/2012 are struck out.
BThe appellants must pay the respondents the sum of $398 by way of costs in relation to each of CA766/2012 and CA767/2012.
CThe further application for recall of the judgment of 30 September 2013 in CA768/2012 is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

In a judgment delivered on 11 December 2013,[1] we dismissed applications by Mr Peterson for a recall and stay of our judgment delivered on 30 September 2013[2] declining to grant him special leave to appeal from a judgment of Gilbert J.[3]
[1]Peterson v Lucas [2013] NZCA 641.
[2]Peterson v Lucas [2013] NZCA 453. Both judgments of this Court relate to CA768/2012.
[3]Peterson v Lucas Mill Pty Ltd [2012] NZHC 2398.
We invited submissions from the parties as to various directions sought by the respondents in relation to the remaining appeals filed by the Peterson interests. This judgment deals with those matters.

Strike-out of the remaining appeals

The Lucas parties seek an order striking out the remaining applications, CA40/2010, CA651/2011, CA766/2012 and CA767/2012, and costs in relation to CA766/2012 and CA767/2012. The strike-out application reflects the position taken by Arnold J in a minute of 21 June 2013 where his Honour said:[4]
[5] As I see the position, if Mr Peterson is unable to persuade this Court that it should grant special leave to appeal in CA768/2012, Gilbert J’s judgment will stand and the result will be that all issues relating to the underlying dispute will have been settled. The effect of this will be that the appeals in CA40/2010, CA651/2011, CA766/2012 and CA767/2012 will fall within the ambit of the settlement agreement and must be discontinued or struck out.
[4]Peterson v Lucas CA40/2010, 21 June 2013.
We asked 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 Peterson v Lucas

Details

AGLC: Peterson v Lucas [2014] NZCA 6
Case: [2014] NZCA 6
Decision Date: 11 February 2014 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals from Carl James Peterson against several respondents, including Rex Cameron Lucas, G W Lucas & Sons Pty Ltd, Lucas Mill Pty Ltd, and others. The appeals relate to a long-standing dispute over intellectual property rights and damages under the Designs Act 1953. Peterson sought to appeal judgments from a previous decision which had declined to grant him special leave to appeal from a judgment of Gilbert J. The court was required to decide whether to strike out the remaining appeals and whether to award costs and recall the earlier judgment.

The court considered the position of the settlement agreement entered into between the two parties, which was confirmed by the previous judgment declining special leave to appeal. The court determined that the remaining appeals fell within the ambit of the settlement agreement and should be discontinued or struck out. Peterson did not provide adequate submissions to argue against the strike-out, and thus the court concluded that the remaining appeals should be struck out. The court also found that the respondents were entitled to the costs they sought in relation to the two appeals in question. Furthermore, the court dismissed Peterson's further application for recall of the earlier judgment.

The Court of Appeal struck out the appeals in CA40/2010, CA651/2011, CA766/2012, and CA767/2012, and ordered the appellants to pay the respondents the sum of $398 in costs for each of CA766/2012 and CA767/2012. The further application for recall of the judgment of 30 September 2013 in relation to CA768/2012 was dismissed.

Orders