Precast NZ Limited v Anystep Limited - [2015] NZHC 2375

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003171 [2015] NZHC 2375

BETWEEN
PRECAST NZ LIMITED

Plaintiff/Respondent

AND

ANYSTEP LIMITED
First Defendant/Applicant

PETER JOSEPH EVANS Second Defendant

Hearing:
Further submissions:

28 September 2015

28, 29 September 2015

Appearances:

M J Fisher for Plaintiff/Respondent
B Gustafson for Defendants/Applicant

Judgment:

30 September 2015

JUDGMENT OF VENNING J

ON APPLICATION TO JOIN THIRD PARTY

This judgment was delivered by me on 30 September 2015 at 4.00 pm, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Claymore Partners Limited, Auckland
Lowndes Jordan, Auckland

Copy to: M J Fisher, Auckland
B Gustafson, Auckland

PRECAST NZ LIMITED v ANYSTEP LIMITED [2015] NZHC 2375 [30 September 2015]

Introduction

[1] The first defendant, Anystep Limited (Anystep) applies for leave to join a third party, Paul Cane, to these proceedings.

Background

[2] I take the summary of the background from Thomas J’s decision on the plaintiff’s, Precast NZ Limited, (Precast) applications for injunction and summary judgment in respect of Anystep’s counterclaim:1

[4] Precast is the management company of the Stresscrete group of companies which manufactures precast concrete components, and supplies them to the construction market.

[5] The Stresscrete Group is a joint venture between interests associated with Mr Paul Cane and interests associated with Mr Brett Russell. Mr Cane is the managing director of Precast.

[6] Anystep manufactures moulds for making precast concrete stairs and owns the intellectual property rights to the Anystep Moulding System (the System) which enables the cost effective installation of concrete stairs.

[7] Mr Peter Evans is the executive director of Anystep.

[8] Pursuant to the Licence, Anystep granted Precast the exclusive rights
(with one exception) to use and sell the System in New Zealand for a term of
25 years, including an option to renew for a further term of 25 years.

[9] In August 2011, Precast acquired a 10 per cent shareholding in
Anystep.

[10] In March 2012, Mr Cane was appointed a director of Anystep.

[11] In the latter half of 2012, difficulties began to emerge in the working relationship between Mr Cane and Mr Evans.

[12] In May 2013, the shareholders with 90 per cent of the shares voted to remove Mr Cane as director of Anystep for allegedly not acting in the interests of Anystep. The actual reasons for his removal are in dispute.

…

[14] By late December 2013, Precast had relinquished its 10 per cent shareholding in Anystep.

[3] Anystep’s counterclaim relies on cl 10.2 of the Licence which provides:

1 Precast NZ Limited v Anystep Limited & Anor [2015] NZHC 1535.

The Licensee agrees to support the Licensor in respect to (potential) overseas contacts and interested parties who are interested in licence or purchase options of the Anystep Moulding System. This includes but is not limited to Anysteps moulds etc being included on the Licensee’s website.

(the support clause)

[4] The support clause places an obligation on Precast to support Anystep in relation to potential overseas contacts and interested…

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: [2015] NZHC 2375
Decision Date: 30 September 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Anystep Limited, the first defendant and applicant, sought leave to join Paul Cane as a third party to the proceedings brought by Precast NZ Limited, the plaintiff and respondent. The dispute centered around whether Anystep could join Mr. Cane, who was a director of both Anystep and Precast, as a third party defendant, or if Anystep was required to join him as an additional counterclaim defendant. The legal issues revolved around the applicability of the third-party procedure when a defendant has issued a counterclaim against the plaintiff and whether there was an evidential basis to suggest Anystep could have suffered loss due to any breach of fiduciary duty by Mr. Cane. The Court found no jurisdictional bar to the application and that Anystep could join Mr. Cane as a third party defendant. The Court reasoned that the relief sought against Mr. Cane was distinct from the relief Anystep sought against Precast, and thus, the joinder of Mr. Cane as an additional counterclaim defendant was not supported. The Court further noted that the proposed claim against Mr. Cane was a well-recognized one, and Anystep was entitled to time to obtain and prepare evidence on the basis of the loss of opportunity claimed. The Court granted leave for Anystep to join Mr. Cane as a third party defendant, and costs were to follow the event, with Anystep to have costs on a 2B basis together with disbursements on the application and all steps associated with it.

Orders