Skids Programme Management Limited v McNeill - [2012] NZCA 491

IN THE COURT OF APPEAL OF NEW ZEALAND

CA315/2011
[2012] NZCA 491

BETWEEN SKIDS PROGRAMME MANAGEMENT LIMITED
First Appellant

AND SKIDS HOLDINGS LIMITED
Second Appellant

AND SAFE KIDS IN DAILY SUPERVISION LIMITED
Third Appellant

AND BARBARA WINSOME MCNEILL
First Respondent

AND MCNEILL ENTERPRISES LIMITED
Second Respondent

AND NATASHA MAY-BABETTE MCNEILL-O'KEEFFE
Third Respondent

AND AATA BAYKIDS LIMITED
Fourth Respondent

AND KIDS CHOICE LIMITED
Fifth Respondent

Hearing: 23 May 2012

Court: Ellen France, Venning and Asher JJ

Counsel: M A Karam and R R Griffin for Appellants
K M Quinn for Respondents

Judgment: 25 October 2012 at 3 pm

JUDGMENT OF THE COURT
(Costs)

ACosts for the appeal in this Court in favour of the appellants are awarded for a standard appeal on a Band A basis less one-third, together with the appellants’ full disbursements as approved by the Registrar.
BThe agreed costs of $55,610 based on the judgment of 28 October 2011 are replaced by a costs order of $33,366. There is no change to the High Court order granting the respondents disbursements. Any further matters arising in relation to costs are to be dealt with in the High Court.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

The appellants’ appeal to this Court against parts of the High Court decision was successful in part.[1] Our judgment concluded with a direction that costs were reserved for further submissions if necessary. The parties have now filed further submissions. The appellants’ submissions which ran to a total of 28 pages were unhelpfully long.
[1] Skids Programme Management Ltd v McNeill [2012] NZCA 314.
It is necessary to review briefly what has happened in this proceeding so far.
Proceedings were commenced in March 2010 in the High Court alleging a number of causes of action including breach of restraint of trade clauses, breach of confidence and breach of copyright. The appellants sought an interim injunction. They failed to obtain such an interim injunction after a defended hearing, although certain undertakings were provided. These undertakings were later varied after another defended hearing in which there was strong opposition to those variations from the appellants.
An urgent trial took place in November/December 2010. Judgment was delivered on 20 April 2011.[2] The appellants failed to establish a breach of the equitable duty of confidence. They failed to obtain any relief against the second, third and fourth respondents and failed to get any injunctive relief against any party. Ultimately they obtained judgment against the first and fifth respondents on two of the causes of action for $2,000 as compensatory damages, and against the fifth respondent for a further $1,000 as additional damages on account of the flagrancy of its actions.
[2] Skids Program Management Ltd v McNeill HC Auckland CIV-2010-404-1696, 20 April 2011.
In a separate costs judgment,[3] costs on a 2B basis were awarded in favour of the respondents on a global basis. The parties later agreed on the calculation arising from the judgment, which came to the sum of $55,610.
[3] Skids Program…

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 Skids Programme Management Limited v McNeill

Details

AGLC: Skids Programme Management Limited v McNeill [2012] NZCA 491
Case: [2012] NZCA 491
Decision Date: 25 October 2012

CaseChat Overview and Summary

Skids Programme Management Limited and others appealed against the decision of the High Court in a case involving claims for breach of restraint of trade, breach of confidence, and copyright infringement. The respondents defended the claims, leading to a trial and subsequent judgments in their favour. The appellants sought an injunction to restrain the respondents from trading and sought damages for the alleged breaches.

The central legal issues before the Court of Appeal were whether the respondents had breached the restraint of trade clause, breached the equitable duty of confidence, and infringed copyright. Additionally, the Court had to determine the appropriate costs to be awarded to both parties given the outcome of the appeal.

The Court of Appeal found that while the appellants had established breaches of the equitable duty of confidence and copyright, there was no breach of the restraint of trade clause. The Court increased the award of additional and exemplary damages from $1,000 to $20,000 against the first and fifth respondents and added $20,000 in exemplary damages against the first respondent. However, the Court also noted that the appellants had not succeeded in their primary claim for injunctive relief and had failed to achieve significant success in their claims against some respondents. Considering the appellants' partial success and the respondents' substantial success in resisting the primary claims, the Court of Appeal reduced the costs awarded to the respondents in the High Court by 40%, reflecting the appellants' greater success on appeal and the respondents' overall success on substantive issues.

The Court of Appeal awarded costs for the appeal in favour of the appellants on a Band A basis less one-third, along with the appellants' full disbursements. The agreed costs of $55,610 in the High Court were reduced to $33,366, with no change to the High Court order granting the respondents disbursements. Any further matters arising in relation to costs were to be dealt with in the High Court.

Orders