White v. E.B.F. Manufacturing Ltd.

White v. E.B.F. Manufacturing Ltd.

The court found there was no repudiation by EBFML because there was never a denial of White's entitlement to eventual payment and White's own conduct (limited demands/acceptance of advances) contributed to the misunderstanding about timing. 'Gross revenues' means total sales to end-users (net of discounts) as...

Source-derived case information.

Citation
2004 NSSC 152
Parties
Plaintiff/defendant by Counterclaim: Eric White; Defendant/plaintiff by Counterclaim: E.B.F. Manufacturing Limited
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
10 September 2004
Procedural Posture
Civil Contract and Patent Dispute / Trial Judgment
Outcome
Claim for declaration of repudiation denied; license remains valid and enforceable; accounting and payment of royalties ordered; other relief denied; costs to be determined.
Legal Topics
Repudiation, Royalty Calculation, License Agreement Interpretation, Gross Revenues Definition, Accounting and Appointment of Expert, Declaratory Relief
Source Language
english
Contract Law Intellectual Property (patent) Corporate/shareholder Law Equity/accounting Repudiation Royalty Calculation License Agreement Interpretation Gross Revenues Definition +2 more

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Parties

Eric White

Plaintiff/defendant by Counterclaim

E.B.F. Manufacturing Limited

Defendant/plaintiff by Counterclaim

Procedural Posture

Civil Contract and Patent Dispute / Trial Judgment

Legal Issues

  1. 1 Whether E.B.F. Manufacturing Ltd. repudiated the exclusive license agreement and whether White accepted any repudiation
  2. 2 When and how royalties under the license and shareholders' agreement are to be calculated (scope of 'gross revenues' and timing/commencement)

Ratio Decidendi

The court found there was no repudiation by EBFML because there was never a denial of White's entitlement to eventual payment and White's own conduct (limited demands/acceptance of advances) contributed to the misunderstanding about timing. 'Gross revenues' means total sales to end-users (net of discounts) as reported under generally accepted accounting principles, including sales funneled through ElectroBraid Fence, and royalties (2% of gross revenues) are payable on sales from inception including patent pending products as contemplated by the agreements. The court ordered an accounting of gross revenues from inception, appointment of a qualified accounting professional if parties cannot...

Court Disposition

Claim for declaration of repudiation denied; license remains valid and enforceable; accounting and payment of royalties ordered; other relief denied; costs to be determined.

Orders

  • Declaration that there has been no repudiation of the license agreement; license remains valid and enforceable
  • EBFML and ElectroBraid Fence to retain a qualified accounting professional to review financial records and calculate total gross revenues from commencement (circa Sept 1997) and royalties owing to White; if parties cannot agree on appointee the court will appoint one within 60 days