Precast NZ Ltd v Anystep Ltd - [2015] NZHC 1535

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3171 [2015] NZHC 1535

BETWEEN
PRECAST NZ LIMITED

Plaintiff

AND

ANYSTEP LIMITED First Defendant

AND

PETER JOSEPH EVANS Second Defendant

Hearing: 28 May 2015

Appearances:

M J Fisher/A T Burnet for the Plaintiff
B Gustafson for the Defendants

Judgment:

3 July 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 3 July 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Claymore Partners Limited, Auckland. Palmer & Associates Limited, Auckland.

PRECAST NZ LIMITED v ANYSTEP LIMITED [2015] NZHC 1535 [3 July 2015]

Introduction

[1] The plaintiff, Precast NZ Ltd (Precast), has applied for:

(a) an interim injunction restraining the first defendant, Anystep Limited (Anystep), from certain activities which Precast claims is in breach of a Licence agreement between the parties dated 22 December 2009 (the Licence);

(b) summary judgment in respect of Anystep’s counterclaim; and

(c) costs in connection with Precast’s summary judgment application against the second defendant, Peter Evans, which was settled between the parties.

[2] During the course of the hearing, the parties agreed that the orders sought in the interim injunction application could, with amendment, be made by consent. Those orders were made.

[3] Given that Precast’s application for summary judgment on Anystep’s counterclaim is now the main outstanding issue between the parties, I will address that first. I will then address costs on Precast’s applications for the injunction and summary judgment.

Background

[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.

[13] Mr Evans’ first affidavit alleges past breaches of the Licence by Precast but does not suggest Mr Cane’s conduct constituted a breach. In his second affidavit, Mr Evans asserts that a…

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 [2015] NZHC 1535
Case: [2015] NZHC 1535
Decision Date: 3 July 2015

CaseChat Overview and Summary

Precast NZ Ltd, the plaintiff, sought an interim injunction, summary judgment on Anystep Limited's (Anystep) counterclaim, and costs in relation to the summary judgment application against Peter Evans (Evans), the second defendant. Precast and Anystep had entered into a Licence agreement which granted Precast the exclusive rights to use and sell the Anystep Moulding System in New Zealand for a term of 25 years. Anystep claimed that Precast breached the Licence agreement by not providing information to facilitate overseas sales of the System and sought a declaration that the breach was repudiatory, entitling Anystep to cancel the Licence. Precast sought summary judgment on the basis that Anystep could never succeed. The court found that Anystep could not rely on the non-waiver provision to prevent the fact of an election to abandon the right to terminate from existing. The court held that Anystep was not entitled to terminate the Licence because it had not served the required Notice and had affirmed the Licence. The court also found that Anystep could not succeed in its claim for damages. The court dismissed Precast's application for summary judgment in respect of Anystep's counterclaim. Precast's costs in connection with the interim injunction application were reserved until the outcome of the substantive proceedings was known. Precast was awarded costs on a 2B basis in respect of its summary judgment application against Evans.

Orders