Precast NZ Limited v Any Step Limited - [2017] NZHC 2450

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…

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: [2017] NZHC 2450
Decision Date: 6 October 2017

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.

Orders