Precast NZ Limited v Anystep Limited - [2016] NZHC 203

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3171 [2016] NZHC 203

BETWEEN
PRECAST NZ LIMITED

Plaintiff

AND

ANYSTEP LIMITED First Defendant

PETER JOSEPH EVANS

Second Defendant

Hearing: 9 February 2016

Counsel:

M J Fisher and A T Burnet for plaintiff
B Gustafson for defendants

Judgment:

17 February 2016

JUDGMENT OF KATZ J

This judgment was delivered by me on 17 February 2016 at 4:45pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Claymore Partners Limited, Auckland
Lowndes Jordan, Auckland

Counsel: M J Fisher, Auckland
B Gustafson, Auckland

PRECAST NZ LIMITED v ANYSTEP LIMITED [2016] NZHC 203 [17 February 2016]

Introduction

[1] The first defendant, Anystep Limited (“Anystep”) seeks an order for determination of a separate question prior to trial. The plaintiff, Precast NZ Limited (“Precast”) opposes that application. It says that, in the interests of efficiency and overall justice, all of the issues between the parties should be determined at one hearing.

[2] A court may make orders for the decision of any question separately from any other question, before, at, or after any trial or further trial in the proceeding.1 The separate question may be a question of law, a question of fact or a mixed question, incorporating both factual and legal issues.2 The burden is on Anystep to satisfy the Court that there are good reasons in favour of determination of a separate question.3

[3] Although each case will turn on its own merits, some of the issues commonly considered when determining whether there should be a pre-trial determination of a separate question are:4

(a) Will there be difficult demarcation between those issues to be addressed at the first trial and those left for the second?

(b) Will the proceedings be brought to an end?

(c) What potential time saving does the separate question offer? (d) How will appeals be dealt with?
(e) Are there any other practical considerations tending one way or

another?

1      High Court Rules, r 10.15(a).
2      Rule 10.14.
3      Karam v Fairfax NZ Ltd [2012] NZHC 887 at [58](d); Turners & Growers Ltd v Zespri Group
Ltd HC Auckland CIV-2009-404-4392, 5 May 2010 at [10].
4      Haden v Attorney-General (2011) 22 PRNZ 1 (HC) at [50]; Karam v Fairfax NZ Ltd, above n 3;
and Body Corporate 325261 v McDonough [2015] NZHC 764 at [30].

[4] I will address each of these issues in turn, after first setting out the relevant background.

Background

[5] Precast is the management company of the Stresscrete group of companies, which manufactures precast concrete components, and supplies them to the construction market. The Stresscrete Group is a joint venture between interests associated with Paul Cane and interests associated with Brett Russell. Mr Cane is the managing director of Precast.

[6] Anystep manufactures moulds for making precast concrete stairs. It has the right to use Anystep intellectual property rights to the Anystep Moulding System (“System”), which enables the cost effective installation of concrete stairs. The relevant intellectual property is owned by Anystep Technology Limited.…

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: [2016] NZHC 203
Decision Date: 17 February 2016

CaseChat Overview and Summary

The case of Precast NZ Limited v Anystep Limited [2016] NZHC 203 involves a dispute between Precast NZ Limited, the plaintiff, and Anystep Limited, the first defendant, with Peter Joseph Evans, the second defendant. The central issue revolves around the interpretation and potential termination of a licence agreement between the parties. Anystep sought to have a specific question determined prior to the main trial, specifically whether Precast's failure to comply with a notice dated 25 July 2015 gave Anystep the contractual right to terminate the Licence Agreement for alleged breaches involving Bradford and Balcrom. Precast opposed this application, advocating for all issues to be resolved at a single hearing.

The court considered several factors in deciding whether to determine the separate question. These factors included the potential for difficult demarcation between issues addressed at different trials, the likelihood of bringing the proceedings to an end, potential time savings, the handling of appeals, and other practical considerations. Katz J found that there were significant demarcation issues due to the extensive evidence and interpretation of the Licence Agreement required. Additionally, determining the separate question would not conclude the proceedings and was unlikely to offer time savings. The court concluded that the preferable course was to resolve all issues at a single trial to avoid inefficiencies and potential conflicts in findings between different trials.

Katz J ultimately dismissed Anystep's application for a separate determination of the proposed question. The court found that Anystep had not demonstrated that it was appropriate to decide the separate question before the main trial. The case will proceed to a single trial to resolve all issues between the parties. Precast, as the successful party, is preliminarily entitled to costs of the application on a 2B scale basis, subject to any agreement or further submissions on costs.

Orders