Peterson v Lucas - [2013] NZCA 453

IN THE COURT OF APPEAL OF NEW ZEALAND

CA768/2012
[2013] NZCA 453

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

Hearing:	16 September 2013
Court:	O’Regan P, Ellen France and Wild JJ
Counsel:	Applicant in person T J Walker and J C Dickson for Respondents
Judgment:	30 September 2013 at 12.30 pm

JUDGMENT OF THE COURT

AThe applications to adduce new evidence and for special leave to appeal are dismissed.
BThe applicant must pay the respondents costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

The applicant, Carl Peterson, applies for special leave to appeal against a decision of Gilbert J.[1] The Judge declined Mr Peterson’s application for review of a decision of Associate Judge Bell. The Associate Judge dealt with an application by the respondents, the Lucas parties, to strike out Mr Peterson’s claims in a copyright proceeding on the basis the parties had reached an agreement to settle their outstanding litigation.[2] The Associate Judge decided that the settlement agreement was binding on the parties. The strike-out application was adjourned so that the settlement could be implemented. Gilbert J agreed the settlement agreement was enforceable and struck out the copyright and related proceedings. Subsequently, Gilbert J declined Mr Peterson leave to appeal to this Court.[3]

Background

[1]Peterson v Lucas Mill Pty Ltd [2012] NZHC 2398.

[2]Peterson v Lucas Mill Pty Ltd [2012] NZHC 1101.

[3]Peterson v Lucas Mill Pty Ltd [2012] NZHC 2830.

The background is complicated as litigation between the parties over the intellectual property rights to various sawmills has been ongoing for over 13 years. The relevant history is set out more fully in the substantive judgment of Gilbert J which we adopt in the summary which follows.[4]
[4]At [8]–[27].
Litigation between the parties was ongoing when, on 3 October 2011, Mr Warren Lucas telephoned Mr Peterson to see if he could persuade him to bring proceedings to an end. During the course of that conversation, as Gilbert J explained:
[12] … Mr Lucas advised Mr Peterson that Lucas interests had recently acquired the worldwide copyrights associated with the “Stubbe” sawmill which is in some respects similar to the “Turbosawmill” manufactured by Mr Peterson’s son’s company. According to Mr Peterson, Mr Lucas threatened to bring copyright infringement proceedings against his son’s company in relation to the Turbosawmill unless Mr Peterson dropped all of his claims. Mr Peterson says that he was “shocked and dismayed” at the prospect of his son’s business being destroyed by the same Court processes that he believed had destroyed his own business. He says that he “panicked” and entered “spur-of-the-moment” discussions in which he tentatively agreed to abandon his claims in return for the payment of a sum, which the parties have agreed should be kept confidential,…

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 [2013] NZCA 453
Case: [2013] NZCA 453
Decision Date: 30 September 2013 at 12.30 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Carl Peterson and Peterson Portable Sawing Systems Ltd sought special leave to appeal against a decision by Gilbert J that dismissed their application to review a decision of Associate Judge Bell. The Associate Judge had ruled that a settlement agreement between Peterson and Lucas Mill Pty Ltd (Lucas parties) was binding and enforceable, and the strike-out application was adjourned for its implementation. Peterson argued the settlement agreement was not binding because it was an unconscionable bargain procured in bad faith by misrepresentation and duress and in circumstances amounting to undue influence. The Court of Appeal dismissed the applications for leave to adduce new evidence and for special leave to appeal.

The central legal issues were whether the settlement agreement was binding, and if it was not, whether the Court should grant leave to appeal. The Court of Appeal found that the proposed appeal did not raise any point capable of serious argument. On the issue of duress, the Court of Appeal noted that the relevant legal principles were settled and applied by Gilbert J. The Court of Appeal also found that the omission of the agreement not to bring a claim based on the Stubbe patent in the written settlement agreement could not have induced the agreement to settle because the written agreement followed after the telephone discussion in which settlement was reached. In any case, this question was not in the category of matters for which a second appeal would be warranted. On the issue of misrepresentation, the Court of Appeal found that the omission in the written agreement of the position on the Stubbe claim could not have induced the agreement to settle because the written agreement followed after the telephone discussion in which settlement was reached.

The Court of Appeal found that the proposed appeal did not meet the test for a second appeal. The applications for leave to adduce new evidence and for special leave to appeal were dismissed. Costs should follow the event. The Court of Appeal ordered Peterson to pay the respondents costs for a standard application on a band A basis and usual disbursements.

Orders