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Precast NZ Ltd v Anystep Ltd

Precast NZ Ltd v Anystep Ltd

Case [2016] NZHC 377 8 March 2016

Contract Formation

Implied Terms

Unconscionable Conduct

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3171 [2016] NZHC 377

BETWEEN
PRECAST NZ LIMITED

Plaintiff

AND

ANYSTEP LIMITED First Defendant

AND

P J EVANS Second Defendant

AND

P T CANE Third Party

Hearing: 3 March 2016

Appearances:

M J Fisher and A T Burnet for the Plaintiff
B Gustafson and C M Hanafin for the Defendants

Judgment:

8 March 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 8 March 2016 at 11.45 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Claymore Partners Limited, Auckland. Lowndes Jordan, Auckland.

PRECAST NZ LIMITED v ANYSTEP LIMITED [2016] NZHC 377 [8 March 2016]

Introduction

[1] The plaintiff, Precast NZ Limited (Precast), applies for interim relief in respect of the purported termination of a Licence Agreement (the Licence) dated
22 December 2009 between Precast and the first defendant, Anystep Limited

(Anystep).

[2] Precast claims there is a serious question to be tried concerning the validity of Anystep’s purported termination of the Licence, and the overall justice favours the granting of the interim relief sought. Precast also seeks interim mandatory orders requiring Anystep to supply Precast with rubber extrusions which Precast ordered from Anystep on 13 January 2006 pursuant to the Licence.

Background

[3] 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 and a third party in these proceedings.

[4] Anystep manufactures moulds for making precast concrete stairs. It has the right to use the 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. Peter Evans is a director of Anystep.

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

[6] In August 2011, Precast acquired a 10 per cent shareholding in Anystep and in March 2012 Mr Cane was appointed a director of Anystep.

[7] Unfortunately, the working relationship between Mr Cane and Mr Evans was problematic. In May 2013, the non-Precast shareholders voted to remove Mr Cane as a director. The reasons for his removal are in dispute. By late December 2013, however, Precast had relinquished its 10 per cent shareholding in Anystep.

[8] In early 2014, a precast concrete manufacturer based in Ashburton, McIntosh Precast Ltd (McIntosh), contacted Mr Evans seeking to buy an Anystep Mould in order to manufacture and sell precast concrete stairs in Ashburton. Anystep was unable to make the sale due to its exclusive licence arrangements with Precast. Some time later, however, Ancon Building Products Pty Ltd (Ancon), an…

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 Precast NZ Ltd v Anystep Ltd

Details

AGLC: Precast NZ Ltd v Anystep Ltd [2016] NZHC 377
Case: [2016] NZHC 377
Decision Date: 8 March 2016

CaseChat Overview and Summary

Precast NZ Limited, the plaintiff, sought interim relief in respect of the purported termination of a Licence Agreement between Precast and Anystep Limited, the first defendant. Precast claimed that there was a serious question to be tried concerning the validity of Anystep’s purported termination of the Licence, and that the overall justice favoured the granting of the interim relief sought. Precast also sought interim mandatory orders requiring Anystep to supply Precast with rubber extrusions which Precast had ordered from Anystep. The court was required to decide whether there was a serious question to be tried, and if the balance of convenience and overall justice favoured the grant of the interim relief sought. The court found that there was a serious question to be tried as to whether Precast had breached the Licence by selling Anystep moulds to Bradford and Balcrom and sub-licensing each of them to use the moulds. The court also found that the balance of convenience and overall justice favoured the grant of the interim relief sought. The court granted the application for interim relief and ordered that Anystep was restrained from terminating or purporting to terminate the Licence, and from taking any steps in furtherance of any such purported termination. The court also ordered that Anystep supply to Precast the rubber extrusions ordered by Precast on 13 January 2016. Precast was entitled to costs.

Orders