RPD Produce Holdings Ltd v Miller

[2013] NZHC 705

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2011-406-000275 [2013] NZHC 705

UNDER  Part 18 of the High Court Rules and in

Equity

IN THE MATTER OF     a claim under a Constructive Trust

BETWEEN  RPD PRODUCE HOLDINGS LIMITED Plaintiff

ANDMARTIN ERIC MILLER First Defendant

ANDLYNDA LEE SHAW Second Defendant

Hearing:         26 September 2012 (Heard at Auckland)

Counsel:         A P Holgate for the Plaintiff

P F Wicks for the Defendants

Judgment:      10 April 2013

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 10 April 2013 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     A P Holgate P O Box 1147 Whangarei 0140 for the Plaintiff

P F Wicks P O Box 1614 Shortland Street Auckland 1140 (DX CP20536) for the Defendants

Copies To:   Conveyancing Shop Lawyers Limited (T Inglin) P O Box 9592 Newmarket

Auckland 1149

Swarbrick  Beck  Mackinnon  (K  M  Beck)  P  O  Box  7120  Wellesley  Street

Auckland 1141

RPD PRODUCE HOLDINGS LTD v MILLER and ANOR HC BLE CIV-2011-406-000275 [10 April 2013]

[1]      The parties seek a pre-trial determination of this Court on the question of whether it has jurisdiction to determine the plaintiff’s claim against either or both defendants in this proceeding.

[2]      The defendants are former employees of the plaintiff.  In short, the plaintiff contends  that  in  the  course  of  their  employment,  they  wrongfully  obtained  or received the plaintiff’s funds, which they have now invested in a property that they jointly own.   The plaintiff seeks to invoke the remedies available in this Court to restore its loss.  On the other hand, the defendants contend that the plaintiff’s claim falls within the exclusive jurisdiction provisions of the Employment Relations Act

2000, which preclude this Court from hearing and determining the claim.  Hence, the question for determination pre-trial.

Facts

[3]      James Chapman held a controlling interest in the plaintiff and other related companies.  The plaintiff previously employed both defendants.  Mr Miller ceased employment with the plaintiff in January 2009.  It is not clear to me when Ms Shaw ceased her employment with the plaintiff but nothing seems to turn on this.  The first defendant, Mr Miller, was employed as the plaintiff’s chief executive, and the second defendant, Ms Shaw, was employed as its chief financial officer.  They held these positions in the other related companies as well.  Their remuneration was initially the sole responsibility of the plaintiff.

[4]      In late 2006, Mr Chapman restructured some of these companies.   He also formed a new company called RPD Produce Holdings Ltd.  In December 2006, he changed the plaintiff ’s name to RPD Produce Holdings Ltd and the name of the recently formed company was changed to RPD Produce Ltd (the new company).

[5]      The defendants were employed in the new company as well.  Ms Shaw was employed in the same role as she held in the plaintiff.  Mr Miller contends that he was employed as managing director of the new company rather than as chief executive but, subject to that difference, it is clear that the defendants held senior positions in the new company.

[6]      It is on the question of Mr Miller’s remuneration for his position in the new company that  the  parties  are  at  odds.    The  plaintiff  alleges  that  it  was  always understood that the liability for the employment contracts and salaries of both defendants would be transferred to the new company.  It also alleges that, save for one remaining payment from it, all employment arrangements with it, including payment of the defendants’ salaries, were to be stopped and a new process set up for the new company to pay these.  Further, it is alleged that it was for the defendants to implement these changes.   They did not.   Instead, Mr Miller began receiving additional remuneration from the new company, at the same time as he continued to receive  his  salary  from  the  plaintiff.     In  all,  between  December  2006  and January 2009, he received salary overpayments in the sum of $263,240.34.   If the plaintiff is correct, Mr Miller wrongly received salary payments from it since December 2006.

[7]      The defendants, however, allege that by agreement with Mr Chapman, the plaintiff was to continue to pay Mr Miller the same salary as he received before the formation of the new company ($120,000), as well as an additional salary from the new company.  If the defendants are correct, then Mr Miller was entitled to receive the payments of $263,240.34.

[8]      In July 2008, which was during the time that Mr Miller received the dual salary payments, he and Ms Shaw purchased and took ownership of a property at

33A Beach Road, Waikawa, Picton (the Picton property).

The plaintiff ’s claim

[9]      The plaintiff alleges that as an employee, Mr Miller owed it a fiduciary duty of loyalty and, as a concomitant of this duty, a duty not to profit secretly at the plaintiff’s expense.  Then the plaintiff alleges that Mr Miller breached those duties by  secretly  directing  the  reinstatement  and  continuation  of  his  salary  from  the plaintiff after he had commenced receiving a salary from the new company; thus, he is alleged to have derived a secret profit of $263,240.34.

[10]     As a first cause of action, the plaintiff contends that these circumstances give rise to a constructive trust, in which Mr Miller is trustee and the plaintiff beneficiary, requiring Mr Miller to account to the plaintiff to the sum of $263,240.34.   As a second cause of action, the plaintiff asserts that insofar as the subject funds have been used to purchase the Picton property, Mr Miller and Ms Shaw now hold this property on a constructive trust for the benefit of the plaintiff.   The plaintiff then contends that they are liable to account to it for the trust money that has been wrongly received and used to buy this property by paying the plaintiff the sum of

$263,240.34.  Finally, as a third cause of action, the plaintiff asserts that to the extent that the Picton property is not trust property, the Court should impose a remedial constructive trust on this property for the benefit of the plaintiff, and for the defendants then to account to the plaintiff by paying the sum of $263,240.34.

[11]     Ms Shaw is a party to the proceeding by virtue of her joint ownership of the Picton property.  In this capacity, she is entitled to be heard before this Court makes orders affecting the Picton property.  No specific allegations of wrongly receiving a salary or of being a knowing receiver of funds wrongly paid to Mr Miller have been made against her.

Relevant legislation

[12]     The  provisions  of  s  161(1)(b)  and  (r)  and  s  161(3)  are  relevant.    They provide:

161     Jurisdiction

(1)      The Authority  has  exclusive  jurisdiction  to  make  determinations about employment relationship problems generally, including–

…

(b)      matters related to a breach of an employment agreement:

…

(r)       any other action (being an action that is not directly within the jurisdiction of the court) arising from or related to the employment relationship or related to the interpretation of this Act (other than an action founded on tort):

…

(3)       Except as provided in this Act, no court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the Authority.

[13]     Also relevant is s 4 of the Employment Relations Act, which imposes an obligation on employers and employees to deal with each other in good faith.  This includes in s 4(4)(bb) any matter arising under, or in relation to an individual employment agreement while the agreement is in force.

Nature of the plaintiff ’s claims

[14]     All three causes of action are founded in equity.   The fiduciary duties of loyalty and not to profit at the expense of the person to whom the duty of loyalty is owed are equitable obligations.  They arise whenever the circumstances and nature of the parties’ relationship with each other is such that one person, the principal, is entitled to rely on the other party not to act in a way which is contrary to the principal’s interest: see Chirnside v Fay [2006] NZSC 68, [2007] 1 NZLR 433 at [80]. The prohibition that equity places on a fiduciary not to profit at a principal’s expense was referred to by the Privy Council in New Zealand Netherlands Society “Oranje” Inc v Kuys and The Windmill Post [1973] 2 NZLR 163 (PC) at 166.

[15]     Fiduciary obligations can co-exist with contractual obligations; when they do, their  presence  is  due  to  the  particular  circumstances  of  the  relationship:  see Amaltal Corporation Ltd v Maruha Corporation [2007] NZSC 40, [2007] 3 NZLR

192 at [21], where the Supreme Court recognised that even in commercial relationships of a generally non-fiduciary kind, there may be aspects of the relationship that engage fiduciary obligations of loyalty.  These will arise because in that particular aspect of the relationship, one party is entitled to rely upon the other for the loyal performance of some function:

… in the nature of that particular aspect of the relationship one party is entitled to rely upon the other, not just for adherence to contractual arrangements between them, but also for loyal performance of some function which the latter has either agreed to perform for the other or for both or has, perhaps less formally, even by conduct assumed.

[16]     This focus on the nature of the circumstances of the parties’ relationship

means that there is little point in classifying the particular relationship in issue.  Such

classifications are only helpful insofar as they can provide short-cuts to determining whether fiduciary obligations are present simply because with some relationships, fiduciary obligations are always owed: for example, trustees to beneficiaries, or solicitors to their clients.  In all cases where fiduciary obligations are present, it is because equity recognises that the circumstances of the relationship where the person acts for, or on behalf of another are such that they give rise to a relationship of trust and confidence: see Bristol and West Building Society v Mothew [1998] Ch 1 (CA) at

18 per Millett LJ:

A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust  and  confidence  … As  Dr  Finn  appointed  out  in  his  classic  work Fiduciary Obligations, (1977) p. 2, he is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary.

[17]     At the material time, the relationship between the plaintiff and Mr Miller was one of employer/employee.  Mr Miller was either the plaintiff’s managing director (as he would have it) or its chief executive (as the plaintiff would have it).  Either way, when it came to him performing his role, the working relationship of the plaintiff and Mr Miller was such that the plaintiff, as a registered company, was dependent upon Mr Miller, as a senior member of its staff, to perform his role loyally and honestly.  There was present the necessary degree of dependency, imposition of trust and confidence to give rise to equitable obligations of loyalty, which carries with it an obligation not to profit at the plaintiff’s expense.

[18]     Whilst those equitable obligations arose in the context of an employment relationship, they do not spring from the contract of employment.  To enforce those obligations, the plaintiff does not need to sue for breach of the contract of employment that once existed; nor does it have to rely in any way on the terms of that contract.

Defendants’ argument on concurrent jurisdiction

[19]     Apart from the statutory duty to deal with each other in good faith, there is implied  in  every contract  of  employment  a  term requiring the  employee to  act loyally, which encompasses a duty not to make secret profits at the employer’s

expense: see Big Save Furniture Ltd v Bridge [1994] 2 ERNZ 507 (CA) regarding the employee’s duty of loyalty in general, and Boston Deep Sea Fishing & Ice Co v Ansell [1888] 39 ChD 339, regarding the particular duty not to make secret profits at an employer’s expense.

[20]     Here, the factual allegations of disloyalty that the plaintiff makes against Mr Miller can either found a claim for breach of the contract of employment or breach of fiduciary duty in equity.  In that sense, subject to the exclusive jurisdiction created  by s  161,  there  are  concurrent  causes  of  action  that  could  capture  this conduct.

[21]     The  defendants  contend  that  where  concurrent  causes  of  action  arise  in respect of an employee’s conduct in the course of his or her employment, the effect of s 161(1) is to exclude this Court’s jurisdiction to deal with the matter.  Thus, the defendants contend that any claim based on a breach of the duty of loyalty should be founded on a claim for breach of the employment contract, and so heard by the Employment Relations Authority.  Insofar as some of the claims and their remedies in this proceeding might be within the sole jurisdiction of this Court, the defendants contend that this Court should stay or delay hearing those aspects of the claim pending a determination by the Employment Relations Authority.

[22]     Regarding the prospect of a jurisdictional void in relation to the claim against Ms Shaw, the defendants contend that this could be overcome by joining her to the proceedings before the Employment Relations Authority, given the ongoing duty of fidelity arising from her employment relationship with the plaintiff.   Here, the defendants contend that the plaintiff could plead a breach of Ms Shaw’s contractual duty of loyalty arising from her lack of action as chief financial officer by allowing Mr Miller to continue to receive payments from the plaintiff.

The plaintiff ’s argument

[23]     From the plaintiff’s perspective, splitting the causes of action between the two jurisdictions is not helpful; it would be more costly and time-consuming. Secondly, the remedies available from the Employment Relations Authority are not

as attractive as those that equity can deliver.   The Employment Authority cannot provide remedies that affect the property owned by the defendants and to which their alleged overpayments might be traced.  Relief in the form of a monetary award does not provide the same assurance of payment as does the equitable remedies of constructive trust.

[24]     The plaintiff’s submissions traverse the known cases in the area of the law. In short, the plaintiff argues that Parliament could never have intended to deprive litigants of access to this Court’s equitable jurisdiction.  In this regard, the plaintiff points to the importance that Parliament has attached to equity by providing in s 99 of the Judicature Act 1908 that the rules of equity are to prevail over the common law.   This reflects the position under the common law.   From this, the plaintiff extrapolates that similarly it can be inferred that Parliament would never intend by statute to extinguish the rules of equity without expressly saying so.  The plaintiff also points to the difficulties that it will face if forced to confine its claim against the defendants to the contract of employment.  Whilst there will be some relief open to the plaintiff if it proves its case against Mr Miller, there is no privity of contract with Ms Shaw and so she cannot also be sued for Mr Miller’s breach of contract.

Is  the  claim  within  the  exclusive  jurisdiction  of  the  Employment  Relations

Authority?

[25]     For the reasons outlined below, I am satisfied that the plaintiff’s claim is not within the exclusive jurisdiction of the Employment Relations Authority and that this Court has jurisdiction to hear and determine it.

[26]     In PropertyIQ NZ Limited v Vicelich [2012] NZHC 2016, [2012] NZCCLR

32, I considered whether a plaintiff company could bring proceedings in this Court for breach of confidence against a former employee and a company in which she had an  interest.    I  rejected  the  argument  that  the  claim  fell  within  the  exclusive jurisdiction of the Employment Relations Authority and that the plaintiff had no option but to sue on the contract of employment. To reach this view, I considered the relevant authorities, all of which are of relevance here as well.

[27]     Pain Management Systems (NZ) Ltd v McCallum HC Christchurch CP72/01,

14 August 2001 was a case involving claims against a former employee for conversion, breach of copyright, breach of confidence, breaches of the Fair Trading Act 1986 and for an injunction restraining the defendants from processing a patent application.   Panckhurst J found that this Court has jurisdiction to determine the claims.  The presence of the tort claim brought part of the claim within the exception in s 161.   Nonetheless, I consider that the case provides helpful guidance on the general question of the scope of the exclusive jurisdiction created by s 161. At [22]– [23], Panckhurst J said  (emphasis added):

To my mind the core concept which is determinative of the exclusive jurisdiction of the authority is whether the determination which is required is indeed about an employment relationship problem. In the words of the definition  of  that  concept  is  the  underlying  problem  one  relating  to,  or arising out of, an employment relationship. I think it is important to distinguish between a claim that may have its origins in an employment relationship on the one hand, and a claim the essence of which is related to or arises from the employment relationship of the parties on the other. Is the issue in a particular claim an employment relationship one, or is the subject matter of the claim some right or interest which is not directly employment- related at all? In this regard it may be necessary to distinguish between situations where the opportunity to breach the right or interest at stake arose in the context of an employment relationship as opposed to those where some employment right or interest is truly at stake.

It is in this sense that I find the judgment in Pike v Semi Plastics [[1994]

1 ERNZ 969 per Doogue J] helpful, in particular for the focus upon the gist of the claim, the right or interests asserted by the plaintiff as having been

infringed.  Where  the  subject  matter  is  property  rights  and  the  claim  is

tortious, equitable or statutory it may be unlikely that the case is one within the exclusive jurisdiction of the authority. Put another way where the rights or interest claimed by the plaintiff do not derive from a contract of service the general jurisdiction of this Court is unlikely to be ousted.

[28]     Panckhurst J’s analysis was approved by the Full Court in BDM Grange [2006] 1 NZLR 353. At [66], the Full Court agreed with the reasoning of Panckhurst J in Pain Management and said:

We express our essential agreement, at greater length, with the analysis of Panckhurst J that “relating to” in the definition of “employment relationship problem” must be read in a limited way to mean any cause of action, the essential character of which is to be found entirely within the employment relationship itself. This would not encompass claims arising from tortious conduct even if arising between an employer and employee, since the relationship merely provides the factual setting for the cause of action; the duty.

[29]     Whilst the Full Court was referring to claims in tort which are expressly excluded by s 161(3), I consider that their reasoning can be applied to equitable claims  where  the  relationship  of  employer/employee  also  “merely  provides  the factual setting for the cause of action” rather than its genesis.

[30]     When it came to the extent to which s 161 excluded the application of this Court’s  equitable  jurisdiction,  the  Full  Court  looked  at  the  narrow  power  of injunction in s 100 that Parliament had created and reasoned that this revealed the exclusion of a significant equitable jurisdiction for the Employment Relations Authority.  Such exclusion was seen to evidence the continuing availability of equity in this Court: see [88]–[89]:

In performing a careful conflict of jurisdictions analysis there may be noted the   sharp   antithesis   between   s   162   (conferring   extensive   contract jurisdiction) and s 100 (which by conferring only narrow injunction power suggests the exclusion of significant equity jurisdiction). The contrast indicates that, in so far as a claim alleging breach of confidence is brought essentially to achieve performance or to seek relief for breach of the employment  contract,  it  is  properly to  be construed  as  arising from the employment relationship and thus within the exclusive jurisdiction of the authority and the Employment Court. However, a claim for relief which in essence arises not out of the employment relationship, but is to be characterised as substantially, say, a claim in equity (or, if the cause of action is as Meagher considers sui generis, for breach of confidence simpliciter), is properly within the jurisdiction of the High Court. It is unnecessary for the decision of this case to pronounce upon remedies; it may be that the need to seek equitable relief such as account will be a pointer away from characterisation of the claim as within the jurisdiction of the authority. Again there will be concurrent complementary jurisdictions of this Court and the authority.

We do not attempt in this judgment to provide guidance beyond what is needed to decide this case. The open-textured language of the ERA will require the characterisation process to be worked through on the different facts of future cases.

[31]     Moreover, the purposive interpretation that the Full Court gave to s 161 led it to conclude that Parliament did not intend the jurisdiction of the Employment Relations Authority to extend “beyond claims arising directly within the employment relationship into causes of action such as claims in tort and in equity” (see [51]).  In this regard, the Full Court described the Employment Relations Act as directed towards conduct arising directly from obligations imposed under that Act and described its provisions as “tightly focused” on the employment relationship itself

(see [52]). The Full Court referred to the types of employment relationship problems covered by s 161, which were seen as referable to the employment agreement or the provisions of the Act such as union-related matters and penalties under the Act, and treated these as indicating the types of problems that the drafter of the legislation contemplated would be covered by the exclusive jurisdiction it gave to the Employment Relations Authority (see [53]).   The Full Court took all this as an indication that the scope of the Employment Relations Act was not so broad that it covered any conduct affecting an employer and an employee (see [65]–[66]).

[32]     In  PropertyIQ,  I applied  the  reasoning  and  principles  to  be  drawn  from Pain Management and BDM Grange Ltd.   I consider that the same applies here. When I apply the principles identified in Pain Management, I find as follows: first, the determination required here is not about an employment relationship problem; instead it is about someone who is alleged to have taken advantage of another’s dependency on him in order to enjoy a secret and dishonest profit.  Claims of this type arise in a multiplicity of circumstances; they do not hinge on there being an employment relationship.   Secondly, the underlying problem as alleged does not involve some employment right or interest; instead the employment relationship merely provided the opportunity for Mr Miller to take advantage of the plaintiff’s dependency and trust.  Thirdly, the rights and interests of the plaintiff are not derived from the contract of employment, but exist independently of it.   Fourthly, as was recognised in BDM Grange Ltd, when the nature of the relief sought is in equity, that is a pointer away from characterising the claim as within the exclusive jurisdiction of the Employment Relations Authority.

[33]     As was the case in PropertyIQ, here there is an additional factor that indicates against the claim falling within the exclusive jurisdiction of the Employment Relations Authority.  That is the presence of Ms Shaw as a defendant.  No claim is made against her for breach of fiduciary duty.  She is a defendant simply because she is a joint owner of the property against which the equitable relief is sought to attach. As the claim poses a potential risk to her interests in the property, she is entitled to be heard.

[34]     In Transnet NZ Ltd v Dulhunty Power (NZ) Ltd [2007] ERNZ 379 (HC), Keane J was faced with circumstances where the plaintiff/employer’s claims for misuse of its confidential information came within the Employment Relations Authority’s  jurisdiction  regarding  one  defendant,  but  not  so  with  the  other defendants.    Keane  J  found  that  the  result  could  not  be  a  complete  void  in jurisdiction and so he found that he had jurisdiction to deal with the plaintiff’s claims against all the defendants.  He ultimately refused to award injunctive relief against the fifth defendant but that was because of delay on the plaintiff’s part, rather than through want of jurisdiction.

[35]     The defendants say that here, any jurisdictional void could be overcome by suing Ms Shaw for breach of her employment contract with the plaintiff.  But to do so would entail the plaintiff having to prove that Ms Shaw bears some legal responsibility for Mr Miller’s alleged misuse of the plaintiff’s funds.  That is entirely different from her present position in the proceeding.  I do not see why the plaintiff should be forced to bring a separate claim of breach of employment contract against Ms Shaw simply to overcome the jurisdictional void that would otherwise arise.  A separate claim against Ms Shaw would carry its own complications, including additional cost, the need for additional evidence, potential evidential problems regarding proof, and the risk of a costs award should the claim fail.

[36]     At present, the only purpose in joining Ms Shaw is because equity permits a plaintiff to trace the funds that were wrongly taken from it to where those funds now rest and to require property purchased with those funds to be held on trust for the benefit of the plaintiff, and to account to the plaintiff for the value of the misused funds.   It would follow that if no accounting was forthcoming, the plaintiff could claim a beneficial interest in the property.  The extent to which Ms Shaw’s interest in the property may be vulnerable to equitable remedies will turn on the principles equity applies when dealing with the interests of affected third parties.

[37]     Moreover, suing both defendants for breach of contract will not allow the plaintiff to obtain the remedies it presently seeks, and which are undoubtedly for it a better form of remedy than damages, which only lead to a debt that is enforceable in personam: see Attorney-General Hong-Kong v Reid [1994] 1 NZLR 1 (PC) at 4:

Property acquired by a trustee as a result of a criminal breach of trust and the property from time to time representing the same must also belong in equity to  his  cestui  que  trust  and  not  to  the  trustee  whether  he  is  solvent  or insolvent.

[38]     The plaintiff argued that the decision in Aztec Packaging v Malevris [2012] NZHC 243, in which Associate Judge Bell found that a claim for money had and received against a former employee came within the exclusive jurisdiction of the Employment Relations Authority, was wrongly decided. The decision is helpful to the defendants, as it involved similar circumstances to the present. A former employee/defendant had taken approximately $25,000 of her employer’s money during the course of her employment. The Judge considered that the same conduct could just as readily be expressed in terms of a breach of the obligations the Employment Relations Act imposed on an employee and, therefore, the conduct came within the Employment Relations Authority’s exclusive jurisdiction.

[39]     At [20] of PropertyIQ, I said of Aztec Packaging:

At [15]-[17] of Aztec Packaging, the Judge likened the conduct to circumstances where an employee was overpaid, the case being here that she had dishonestly overpaid herself, and found that recovery of overpayments to an employee fell squarely within the Employment Relations Authority’s exclusive jurisdiction. No consideration was given to what might have been the outcome if the claim had been brought in equity to trace and recover the misappropriated funds: see Banque Belge pour L’Etranger v Hambrouck [1921] 1 KB 321 at 330. I consider that this is to take too liberal a view of what constitutes an employment relationship problem. Such a view was expressly disavowed in BDM Grange at [65] as failing to take into account the scheme and purpose of the Employment Relations Act. Such a view also overlooks   the   careful   distinctions   drawn   by   Panckhurst   J   in   Pain Management at [22] between a claim which may have its origins in an employment relationship and one in which the essence of the claim is related or arises from the employment relationship of the parties. I find, therefore, with all due respect to the Judge, that I have a different view on this topic and am not persuaded by his reasoning.

[40]     In PropertyIQ, I was dealing with a claim for misuse of a former employer’s confidential information; nonetheless, I saw nothing to distinguish it from the claim that  was  made  in  Aztec  Packaging.    The  present  case  is  on  all  fours  with Aztec Packaging in terms of the alleged wrongful conduct, though here the claim is brought in equity with the potential to trace and recover funds that are found to have been misappropriated.   I have, therefore, carefully considered the question I dealt with in PropertyIQ afresh.  In particular, I have paid careful regard to the defendants’

submissions.  Having done so, I find that my views remain the same.  Furthermore, I consider that the arguments I heard from the plaintiff add weight to those views.  It follows that I accept the plaintiff’s submission that Aztec Packaging was wrongly decided.

Result

[41]     This Court has jurisdiction to hear and determine the plaintiff’s claims in this

proceeding against the defendants.

[42]     Leave is reserved to the parties to file memoranda on costs.

Duffy J