Precast NZ Limited v Any Step Limited

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-3171 [2017] NZHC 2450

BETWEEN

PRECAST NZ LIMITED

Plaintiff

AND

ANY STEP LIMITED First Defendant

PETER JOSEPH EVANS Second Defendant

AND

PAUL TREVOR CANE Third Party

Hearing: On the papers

Counsel:

MJ Fisher and KG Ng for plaintiff and third party
B Gustafson and TP Refoy-Butler for defendants

Judgment:

6 October 2017

JUDGMENT OF FITZGERALD J [As to costs]

This judgment was delivered by me on 6 October 2017 at 4 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Claymore Partners Ltd, Auckland (B Langdon) Morrison Mallett, Wellington (M Morrison)

Precast NZ Limited v Any Step Limited [2017] NZHC 2450 [6 October 2017]

[1]      On 21 June 2017, I delivered judgment in the substantive proceedings.1   The dispute centred on an exclusive licence agreement of a mould to make concrete precast stairs (“Agreement”).  Under the Agreement, Any Step granted Precast NZ exclusivity in New Zealand in relation to the use and sale of the mould.  In return, Precast NZ agreed to support Any Step in its overseas marketing efforts in respect of the mould.  Precast NZ’s obligation in this regard is pursuant to what the parties refer to as the “support clause”.

[2]      Each party made claims against the other in respect of the Agreement.  Each party’s pleading was amended a number of times, and claims were further refined or abandoned during the hearing itself.  In broad and high-level terms, the remaining claims by the time of the hearing were as follows:

(a)       Precast NZ claimed that:

(i)Any Step had supplied a mould to a third party in Australia with  actual  knowledge  (or  with  wilful  blindness)  that  the mould  was  to  be  on-supplied  to  a  New  Zealand-based precaster (McIntosh), or in circumstances where it ought to have known that fact.   Precast said this supply was either a breach of an express term in the Agreement, or a breach of an implied term, and sought injunctive relief preventing Any Step from engaging in any similar supply, together with damages;

(ii)Any Step was in breach of the Agreement by failing to supply Precast  NZ  with  rubber  extrusion  strips2   as  requested  by Precast NZ, for which it sought specific performance or a mandatory injunction of supply; and

(iii)Any  Step  had  breached  the  Agreement  by  purporting  to terminate it on or about 26 January 2016, for which it sought

1      Precast NZ Ltd v Anystep Ltd [2017] NZHC 1371.

2      A part required in order to operate the mould.

an injunction restraining Any Step from taking steps on the grounds of the purported termination.3

(b)      Any Step counterclaimed, (broadly) saying that:

(i)Precast NZ had breached the support clause in the Agreement (or alternatively a “duty of good faith”) in two respects,4  for which   it   sought,   inter   alia,   damages,   together   with   a declaration that the breach entitled Any Step to terminate the Agreement, and an account of profits for the unauthorised…

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Details
Case
[2017] NZHC 2450
Decision Date

CaseChat Overview and Summary

Precast NZ Limited and Any Step Limited disputed an exclusive licence agreement for a mould to make concrete precast stairs. Each party made claims against the other, which were amended several times. Precast NZ claimed that Any Step had supplied a mould to a third party in Australia in breach of the agreement. Any Step counterclaimed that Precast NZ had breached the support clause and other clauses of the agreement, and that Precast NZ's director breached his fiduciary duties. The court found that each party had failed to make out their primary claim. However, Precast NZ was successful in its claims in respect of rubber extrusion strips and that Any Step's purported termination of the agreement in January 2016 was invalid. The court considered the costs of the substantive proceedings and interlocutory hearings. Precast NZ claimed costs on a 2B basis, while Any Step argued that the parties had equal levels of success. The court awarded Precast NZ scale costs in respect of the proceeding, reduced by 80 per cent. The court also awarded Precast NZ costs on its interim injunction application, reduced by 50 per cent. Costs were to lie where they fell on Precast NZ's defendant's summary judgment application and Any Step's interlocutory application. Precast NZ was entitled to costs in the net sum of $5,240.50 in relation to Palmer J's costs orders dated 22 June 2016. Costs were to lie where they fell on Precast NZ's application for non-party discovery and its application for joinder of Anystep Holdings Ltd.

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