Skelton v Z487 Ltd - [2014] NZHC 707

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-77 [2014] NZHC 707

BETWEEN
DONALD ALFRED SKELTON

Plaintiff

AND

Z487 LIMITED First Defendant

JOHN DAVID BLACKLER Second Defendant

Hearing: 26 March 2014

Appearances:

C Elliott QC and S Hood for plaintiff
J MacGillivray and S Jass for first defendant
No appearance for second defendant (abides decision of Court)

Judgment:

8 April 2014

JUDGMENT OF LANG J

[on application by first defendant for stay of proceeding]

This judgment was delivered by me on 8 April 2014 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

SKELTON v Z487 LIMITED [2014] NZHC 707 [8 April 2014]

[1] The plaintiff, Mr Skelton, is a horticulturist who has bred numerous different varieties of kiwifruit over many years. Mr Skelton breeds his kiwifruit cultivars at a rural property near Huntly, in the Waikato.

[2] Mr Skelton has acquired plant variety rights (“PVR’s”) in respect of many of the varieties of kiwifruit that he has developed. These give him the sole right to market and commercialise those varieties. Mr Skelton does not, however, market his cultivars himself. Instead, he enters into licence agreements with third parties, both in New Zealand and overseas. Under these, Mr Skelton authorises the licensee to market and commercialise specified varieties of kiwifruit in respect of which Mr Skelton holds PVR’s (“licensed cultivars”). The licence agreement entitles the licensee to enter into agreements with sub-licensees giving the sub-licensee the right to market and distribute plants and fruit from the licensed cultivars within a specified territory.

[3] The licence agreement, which lasts for thirty years, prescribes the minimum and maximum number of hectares that the licensee may plant in licensed cultivars during the term of the agreement. The agreement also provides that Mr Skelton and the licensee (and in some cases the sub-licensee) will share in specified proportions any production and propagation royalties received in respect of those plants.

[4] In or about 2005, Mr Skelton entered into an arrangement under which he authorised an Australian company, Global Plants IP (“Global Plants”) to commercialise and distribute certain kiwifruit cultivars. The controlling force behind Global Plants was Mr Colin Lye, who is an agronomist. Mr Lye lives and operates his business in Queensland, Australia.

[5] In 2008 Mr Lye incorporated the defendant, Z487 Limited (“Z487”) in New Zealand. Z487 subsequently entered into a new licence agreement with Mr Skelton under which it received the right to market and commercialise 24 specified varieties of kiwifruit throughout the world (“the 2008 agreement”). In 2010, Mr Skelton and the second defendant, Mr Blackler, entered into a further agreement under which they gave Z487 a licence to market and commercialise six further varieties of

kiwifruit in North and South America, Australia, New Zealand, Africa, the Middle

East, Turkey, Asia and the countries of the European Union (“the 2010 agreement”).

[6] During the latter part of 2013, Mr Skelton came to the view that Z487 was in breach of several terms of both…

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.

Keep reading for free

Create a free CaseChat account to read Skelton v Z487 Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 707
Decision Date: 8 April 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Skelton sought a declaration that he had validly terminated two licence agreements with Z487, an Australian company, as well as a permanent injunction preventing Z487 from dealing with the licensed cultivars. Z487 applied for a stay of the proceeding on the basis that an Australian court was the more appropriate court to determine the issues. The Court considered the merits of the application and the factors listed in section 24(2) of the Trans-Tasman Proceedings Act 2010. The Court concluded that the proceeding provided the parties with a more convenient and cost-effective vehicle for resolving all of their disputes than did the Queensland proceeding. The Court therefore did not propose to do more at that stage than signal its preliminary conclusion.

Orders