PROPELLOR PROPERTY INVESTMENTS LIMITED v TREVOR WAYNE MOORE [2015] NZCA 357 [7 August 2015]

PROPELLOR PROPERTY INVESTMENTS LIMITED v TREVOR WAYNE MOORE [2015] NZCA 357 [7 August 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA289/2015[2015] NZCA 357BETWEEN PROPELLOR PROPERTYINVESTMENTS LIMITEDAppellantAND TREVOR WAYNE MOORERespondentHearing: 27 July 2015Court: White, Heath and Collins JJCounsel: S F Gazley for AppellantM C Donovan and S M Vujnovich for RespondentJudgment: 7 August 2015 at 11.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent's costs for a standard appeal on aband A basis and usual disbursements. We do not certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by White J)Introduction[1] The appellant, Propellor Property Investments Ltd (Propellor), appeals against the decision of the High Court declining its application for an interim injunction restraining the respondent, Mr Moore, from working as an independent contractor to Positive Real Estate (NZ) Ltd (Positive Education), a company allegedto be a competitor.1 Positive Education provides seminars and mentoring for potential property investors. The interim injunction application was based on an allegation that Mr Moore was in breach of a 12 month restraint of trade clause in his contract with Propellor.[2] Propellor claims that the High Court Judge, Woolford J, erred in fact and in law in exercising his discretion to decline to grant the interim injunction on the ground that the balance of convenience favoured Mr Moore.[3] Mr Moore says there is no good reason for this Court to interfere withWoolford J's decision.[4] It is convenient to refer to the factual background in a little detail before summarising the reasons for the Judge's decision and the submissions for the parties,and addressing the issues on appeal.Factual background[5] Propellor is in the business of providing property investment advice to its clients and recommending certain promoted investment properties. It receives payment for introducing a successful purchaser to the vendor of the promoted investment properties.[6] Mr Moore is an authorised financial adviser who was engaged by Propellor as an independent contractor to provide senior mentoring and property strategy services to its clients in Auckland between 4 November 2013 and 24 January 2015.[7] The terms of engagement between Propellor and Mr Moore were contained in an independent service agreement dated 5 October 2013. The agreement included provisions relating to termination, confidentiality, intellectual property, restraint of trade and dispute resolution.1 Propellor Property Investments Ltd v Moore [2015] NZHC 863 (High Court decision).[8] For present purposes the relevant provisions are:5. Termination5.1 Either party may terminate this Agreement by giving one month'snotice in writing to the other party.8 Confidentiality8.4 After termination of this Agreement for any reason, neither party will attempt to solicit, divert, appropriate to themselves or any other competing business, any existing clients of the other party.a For the purpose of clause 8.4 a competing business is any business, organisation or enterprise that offers services of a similar nature to the services provided by the Company.b Both parties accept that these obligations (in clause 8) do not expire.10 Restraint of TradeThe Contractor agrees that for a period of 12 months following the termination of their contract for whatever reason, they shall not, either personally, or as an employee, consultant or agent for any other entity or employer, carry on business in competition with the Company within New Zealand.[9] The dispute resolution provision required the parties to follow a sequential process of negotiation, mediation and arbitration.[10] On 24 December 2014 Mr Moore gave notice to Propellor in terms of cl 5.1 of their agreement terminating his employment.[11] On 26 January 2015 Mr Moore started work as an independent contractor for Positive Education. His work included referring potential investors to a related company, Positive Real Estate Sales Ltd (Positive Real Estate). The complementary nature of the two companies was described by Woolford J:[6] Positive Education runs seminars giving overviews of propertyinvestment and describing how Positive Education can teach people to build a long-term property portfolio. At the end of seminars, attendees are offereda one-on-one session and/or an invitation to attend a monthly group meeting with existing clients. At the one-on-one session, or after the group meeting, attendees are invited to join a lifetime mentoring programme for a fee of$9,995. About 90% of Positive Education's revenue is the one-off fee that clients pay to join the lifetime mentoring programme. Other sources of revenue for Positive Education come from referral payments received from firms to whom property coaches refer clients for such things as financing, accounting, insurance, property management and real estate assistance.[7] Positive Real Estate is a licensed real estate agency under the Real Estate Agents Act 2008 and generates its revenue from marketing fees and sale commissions paid by vendors. Positive Real Estate sells properties to clients of Positive Education, clients of third party providers and clients who respond to advertisements of their listings in the open market. It advertises its properties through digital and print based advertising channels as well as seminars attended by Positive Education customers and others referred by third parties.[12] On 11 March 2015 Propellor issued High Court proceedings claiming that Mr Moore was in breach of his agreement by:(a) carrying on business in competition with Propellor prior to the expiration of the restraint of trade clause on 27 January 2016;(b) attempting to solicit clients, and potential clients, of Propellor; and(c) taking and, after request for return, retaining Propellor's confidentialinformation.[13] Propellor sought a permanent injunction restraining Mr Moore from breaching his agreement, damages and costs. Propellor also sought an interim injunction to similar effect pending the final determination of its proceedings and provided an undertaking as to damages.[14] In accordance with High Court timetable directions, Mr Moore filed his notice of opposition on 25 March 2015.[15] In accordance with agreement reached between counsel,2 Mr Moore also filed an affidavit sworn on 17 March 2015 containing the following undertakings:2 Propellor Property Investments Ltd v Moore HC Auckland CIV-2015-404-456, 16 March 2015 (Minute of Lang J) at [3].(a) That all confidential information and intellectual property (as defined in my Independent Contractor Agreement with the plaintiff) has been either returned to the plaintiff or deleted or destroyed.(b) That I will not use any confidential information or intellectual property of the plaintiff.(c) That until 24 January 2016, I will not attempt to solicit, divert or appropriate for myself or any business in competition to the plaintiff, any clients of the plaintiff or any property developers I had dealings with while working for the plaintiff.[16] We should also mention that Propellor's High Court proceedings soughtsimilar relief against a Mr Hackett who, like Mr Moore, had been engaged as an independent contractor by Propellor and left at the same time. Mr Hackett joined Positive Real Estate rather than Positive Education. The claim against Mr Hackett was settled before this appeal was heard.3High Court decision[17] After setting out the factual background, Woolford J recorded the acknowledgment of counsel for Propellor that in view of the undertakings and the fact that damages would be determined in the course of the substantive proceedings the only issue for the Court was the restraint of trade.4[18] The Judge then summarised the principles of interim injunctions and the submissions for the parties.5[19] The Judge decided that as Propellor had a proprietary interest that could sustain a restraint of trade clause and the parties appeared to be in competition with each other there was prima facie a serious question to be tried.6[20] The Judge then decided that the overall balance of convenience favoured Mr Moore because:7(a) The undertakings should be taken at face value and treated as3 See below at [22].4 High Court decision, above n 1, at [10].5 At [11]–[15].6 At [16]–[21]7 At [23]–[28].legitimate. Any breach of the undertakings and the restraint of tradeclause might increase Mr Moore's liability in damages.(b) There was no evidence of substantive damage to Propellor through loss of sales or in any other tangible way. It would therefore not unduly inconvenience Propellor for Mr Moore to continue in his current employment (with Positive Education) which is unlikely to cause any losses (to Propellor) which cannot be subsequently remedied through damages.(c) Mr Moore requires a steady income. Without an income from Positive Education, Mr Moore would be directly inconvenienced in a way which might prejudice his ability to engage with the proceedings. Although both parties would have some difficulty showing the specific quantification of their losses, it is only Mr Moore who would suffer directly and immediately if he was precluded from working and in a way which would be difficult to rectify in damages.(d) Arbitration was available to resolve the matter promptly.[21] Finally, the Judge stood back and assessed where the overall justice in the matter lay. He concluded that Mr Moore should not be restrained from continuing his employment while the outcome of the proceedings was determined. The status quo should be preserved.8[22] The Judge reached the same conclusion in respect of Mr Hackett. Propellor filed a notice of appeal against the decision with respect to both Mr Moore and Mr Hackett, but subsequently entered into a deed of settlement with Mr Hackett and abandoned its appeal insofar as it relates to him.Submissions[23] For Propellor, Mr Gazley submits that the Judge erred in law and in fact in taking into account:8 At [29].(a) the preservation of the status quo when the status quo was Mr Moore not acting in competition with Propellor and when Mr Moore should not benefit from his lack of transparency;(b) the availability of arbitration as providing a quick resolution when there was no appellate authority for that proposition, the High Court authorities were distinguishable and Mr Moore had submitted to the jurisdiction of the courts;(c) the detriment to Mr Moore when the state of affairs was of his own making, his level of difficulty was not beyond the usual and his losses could be rectified in damages;(d) the absence of evidence for Propellor of substantive damage when there was no obligation on Propellor to show such damage, there was such evidence in any event, and losses to Propellor could not be remedied in damages; and(e) the undertakings when they concerned only non-solicitation and confidentiality and not the restraint of trade and did not offer sufficient protection to Propellor.[24] In the course of argument, Mr Gazley accepted that the Judge's principal focus had been on the scope of Mr Moore's undertakings, the absence of anyevidence of damage to Propellor and Mr Moore's loss of income rather than on thequestion of the status quo and the possibility of arbitration. Mr Gazley also accepted that the undertakings went some way towards ensuring compliance with the prohibition on carrying on business in competition with Propellor in the restraint of trade clause, especially as any breach of the undertakings given to the Court could be enforced by proceedings for contempt. But he submitted that the undertakings provided no protection for Propellor's key proprietary interest, its reputation andbranding, and did not prevent Mr Moore from persuading prospective property purchasers to look to Positive Education rather than Propellor. Mr Gazley relied inparticular on the decisions of this Court in Fuel Espresso v Hsieh and Wholesale Distributors Ltd v Songle Supermarket Ltd.9[25] On the question of loss to Propellor, Mr Gazley emphasised that it relatedparticularly to Propellor's expenditure on advertising Mr Moore's status as itscontractor and training him, and its reputation and branding. Propellor's loss ofgoodwill, which had been based on Mr Moore and Mr Hackett, would be very difficult to value.[26] For Mr Moore, Mr Donovan submits that the Judge's approach disclosed noreviewable error of law in respect of the assessment of the balance of convenience:(a) Mr Moore's undertakings provided sufficient protection to Propellorfor the restraint of trade because he was not in fact in competition with Propellor. The core focus of his work with Positive Education is selling and delivering property education packages to prospective purchasers on how to invest in property. His situation should be distinguished from that of the barista in Fuel Espresso who had moved down the road to another coffee outlet.10 It was also acceptedthat Mr Moore's undertakings were to the Court and could beenforced by contempt proceedings.(b) Unlike the situation in Fuel Espresso where there was evidence of customers being diverted,11 there was no evidence of any loss to Propellor of that nature. There was no logic in the suggestion thatthere must be loss flowing from the interference with Propellor'sproprietary interest. There was evidence that Propellor had replaced Mr Moore and, since his departure, its business had grown and not encountered any cash-flow issues. The decision in Wholesale Distributors should be distinguished as it did not involve a restraint of trade. In the event Propellor had evidence of loss of sales from its9 Fuel Espresso v Hsieh [2007] 2 NZLR 651 (CA); and Wholesale Distributors Ltd v Songle Supermarket Ltd [2014] NZCA 565.10 Fuel Espresso v Hsieh, above n 9, at [9]–[10].11 At [11].clients, such loss could be quantified through the methodology described in Spicers Portfolio Management Ltd v Cunningham Financial Services.12(c) The loss to Mr Moore would, however, be significant and potentially difficult to remedy. Again, the decision in Wholesale Distributorsshould be distinguished on the grounds that there the purchasers whohad sold their business before obtaining the franchisor's consent totheir purchase of the new business were third parties whose loss of income was their own doing and unnecessary.(d) The possibility of quick resolution by arbitration was a relevant factor because this Court emphasised in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries that the balance of convenience could have a"very wide ambit".13(e) The status quo, which was Mr Moore continuing to work for PositiveEducation, was a relevant factor. The Judge's approach was supportedby the authorities.14[27] In the course of argument, Mr Donovan accepted that it might have been open to the parties to agree that Propellor would undertake to pay Mr Moore for the 12 month term of the restraint of trade a monthly income based on the average of his income for the previous year. Mr Donovan pointed out that he had no instructions from his client on this point. It can, if necessary, be raised and considered on a separate application to the High Court.[28] Mr Donovan also accepted that in terms of art 8 of sch 1 of the Arbitration Act 1996 the parties could now only proceed to arbitration by agreement. While Mr Moore may have preferred arbitration, he did not seek a stay of the High Court proceeding. Instead the day after the hearing before Woolford J he submitted to the12 Spicers Portfolio Management Ltd v Cunningham Financial Services [2014] NZHC 74 at [48].13 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries [1985] 2 NZLR 140 (CA) at 142.14 American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL) at 408, Garden Cottage Foods Ltd v Milk Marketing Board [1984] AC 130 (HL) at 140, Fuel Espresso v Hsieh, above n 9, at [21], Wholesale Distributors Ltd v Songle Supermarket Ltd, above n 9, at [34].jurisdiction of the Court by filing his statement of defence and counterclaim. His subsequent notice to arbitrate should be viewed in this context.The approach to the appeal[29] The correct approach to an appeal against the grant of an interim injunction was explained by this Court in New Zealand Tax Refunds Ltd v Brooks Homes Ltd:15The grant of an interim injunction involves, of course, the exercise of a discretion. Such a decision is amenable to appeal, on the basis that the judge has erred in law, taken account of an irrelevant matter, failed to take account of a relevant matter or is plainly wrong. This is subject to the qualification, however, that whether there is a serious question to be tried is an issue which calls for judicial evaluation rather than the exercise of a discretion. Where an appellate court disagrees with a judge's finding that there is no seriousissue to be tried, the appellate court will have to carry out its own assessment of the balance of convenience and the overall justice of the case, although itmay well derive assistance from the judge's analysis of those aspects.[30] As the present appeal does not involve a challenge to the High Court Judge'sview that there is a serious question to be tried, it is entirely an appeal against theJudge's exercise of a discretion in assessing the balance of convenience and the overall justice of the case. The criteria are therefore an error of law or principle, taking into account irrelevant considerations, failing to take account of relevant considerations, or that the decision is plainly wrong.16[31] There is no dispute that in assessing the balance of convenience and the overall justice of the case the Judge was right to consider the questions of the scopeand effect of Mr Moore's undertakings, Propellor's likely losses, detriment toMr Moore, arbitration and the status quo. The issue is whether in considering these questions he erred in one of the proscribed ways.15 New Zealand Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90, (2013) 13 TCLR 531 at [13] (footnote omitted).16 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].The scope and effect of the undertakings[32] Woolford J took into account first the undertakings given by Mr Moore to Propellor. He recognised that non-compliance with the undertakings would result in a breach of the restraint of trade clause.17[33] We agree with the Judge that the scope of the undertakings and their relationship with the restraint of trade clause is of primary importance in assessing the balance of convenience in this case. While the undertakings were given in terms of cl 8.4 of the independent service agreement between Propellor and Mr Moore, paragraph (c) plainly also relates to the restraint of trade clause because, as already noted, it provides:(c) That until 24 January 2016, I will not attempt to solicit, divert or appropriate for myself or any business in competition to the plaintiff, any clients of the plaintiff or any property developers I had dealings with while working for the plaintiff.[34] The reference to 24 January 2016 reflects the 12 months referred to in therestraint of trade clause. The inclusion of "any property developers", whether or notthey were clients of Propellor, means that the undertaking is intended to extend beyond the confidentiality clause, cl 8.4. We therefore do not accept Mr Gazley'ssubmission that these undertakings leave it open to Mr Moore to persuade prospective property purchasers to look to Positive Education rather than Propellor.[35] While the terms of the undertaking may not cover the full extent of the restraint of trade clause which prohibits Mr Moore, either on his own or as an employee, consultant or agent, from carrying on any business in competition with Propellor, they go some considerable distance towards that end and distinguish this case from cases such as SSC & B Lintas v Murphy where two directors of the plaintiff company had resigned and formed a company operating in a similar field, taking with them practically all of the employees.18 No undertaking not to compete or solicit clients was given, and the Judge found damages would be an inadequate remedy when the custom of the clients would be lost to the new competing company.17 High Court decision, above n 1, at [24].18 SSC & B Lintas v Murphy (1981) 1 NZCLC ¶95-044 (HC).By contrast here there is a reasonable protection of Propellor's position through theundertakings.[36] When the scope and effect of the undertakings are taken into account in this way, together with the acknowledgements by the parties that the undertakings are to the Court and therefore enforceable by contempt proceedings, we do not accept the submissions for Propellor as to their scope and the inadequacy of the protection theyprovide for Propellor. Propellor's concerns for its reputation and branding appearoverstated in this context.[37] The decisions in Fuel Espresso and Wholesale Distributors are distinguishable because in those cases no undertaking was given to the party seeking to enforce the relevant term of the agreement, in Fuel Espresso a restraint of trade and in Wholesale Distributors a clause requiring franchisor consent to sale of a business.[38] Woolford J therefore did not err in taking into account the undertakings in the way in which he did.Propellor's likely losses[39] Woolford J took into account next the fact that there was no evidence of any substantive damage to Propellor through loss of sales or in any other tangible way.19[40] There is no doubt that the adequacy of damages as a remedy for loss suffered by a successful plaintiff is a crucial factor in considering whether to grant an interim injunction.20 This is because the purpose of the injunction is to protect plaintiffs in cases where they cannot be adequately compensated in damages.[41] Here, bearing in mind the scope and effect of the undertakings, the potential for Propellor to suffer loss at all from any breach of the restraint of trade clause is19 High Court decision, above n 1, at [25].20 American Cyanamid Co v Ethicon Ltd, above n 14, at 408, and Klissers Farmhouse Bakeries Ltd v Harvest Bakeries [1985] 2 NZLR 129 (HC) at 139.limited. In any event, as Woolford J recognised, any loss Propellor might have suffered would be quantifiable and recoverable.[42] Propellor's claim for expenditure incurred in advertising Mr Moore's statusas contractor and training him is clearly quantifiable and, if Propellor is ultimately successful, may be recoverable from Mr Moore.[43] Propellor's claim for losses associated with "reputation and branding", which it terms as losses of "goodwill", would, if necessary, also be quantifiable.21[44] We agree with Mr Donovan that the decision in Wholesale Distributors may be distinguished. In that case there was evidence that the loss of goodwill and the right of the franchisor to purchase the assets of the business in the future from the franchisee would be difficult to value, and the quantum of damages was so large that it was unclear whether the franchisee would be able to pay it if the claim for damages succeeded at trial.22 There is no evidence here that quantification of the lost goodwill would be difficult.[45] We also agree with Mr Donovan that in the event Propellor has evidence of loss of sales from its clients, such loss may be quantified. In Spicers Portfolio the plaintiff sought to enforce a restraint of trade clause against its former employee, Mr Cunningham. Mr Cunningham disputed the enforceability of that clause. The Judge suggested that, assuming a breach of the clause was established at trial, theplaintiff's loss from Mr Cunningham soliciting its clients could be quantified byidentifying the clients who had shifted their patronage to Mr Cunningham and questioning them on whether their decision was taken on their own initiative or if they were solicited by Mr Cunningham.23[46] It is in the context of losses that are able to be quantified and recovered that the absence of any evidence of loss, apart from expenditure on advertising and21 In re A Proposed Sale, Mountney to Young [1947] NZLR 436 (Land Sales Court) at 454–455;Public Trustee for New South Wales v Commissioner of Inland Revenue [1966] NZLR 257 (SC) at 259; Z v Z [1989] 3 NZLR 413 (CA) at 415 and 417–418; and New Zealand Airline Pilots'Association v Air New Zealand Ltd [1992] 2 NZLR 656 (CA) at 663–664.22 Wholesale Distributors Ltd v Songle Supermarket Ltd, above n 9, at [19]–[23].23 Spicers Portfolio Management Ltd v Cunningham Financial Services Ltd, above n 12, at [48].training, is relevant. It serves to reinforce the conclusion that this factor favoursdeclining Propellor's application.[47] Woolford J therefore did not err in taking this factor into account in this way.Detriment to Mr Moore[48] Woolford J took into account the detriment to Mr Moore as a factor whichalso favoured declining Propellor's application.24[49] There is no doubt that the adequacy of damages as a remedy for a successful defendant for being prevented from doing what he was, with hindsight, entitled to do is also an important countervailing factor in considering whether to grant an interim injunction.25[50] Here, again taking into account the scope and effect of the undertakings, we do not agree with Propellor that Mr Moore can be said to have contracted withPositive Education with his "eyes open" so as to be responsible for any loss he mayultimately suffer if the interim injunction were granted and Propeller were to fail in its claim. The nature and extent of the undertakings mean that Mr Moore is entitled to expect to be able to avoid the risk of being unable to recover adequate damages inthe event Propellor's claim for breach of the restraint of trade clause fails.[51] As Mr Donovan submits, the decision in Wholesale Distributors may be distinguished on the grounds that it involved inconvenience to third parties who were aware that their supermarket purchase might not proceed if the franchisor did not agree. Nonetheless, the third parties proceeded to sell their sole source of income, a supermarket business. They proceeded with their eyes open, knowing there was a risk the purchase might not be completed.26[52] While, in terms of its undertaking as to damages, Propellor would be able tomeet Mr Moore's lost income, the practical difficulties for Mr Moore, identified by24 High Court decision, above n 1, at [26].25 American Cyanamid Co v Ethicon Ltd, above n 14, at 408.26 Wholesale Distributors Ltd v Songle Supermarket Ltd, above n 9, at [29]–[30].Woolford J, are that if he were to be prevented from working for Positive Education not only would he have no income from that source but also it would not be a straightforward matter to calculate his income based on lost commissions. As Mr Donovan points out, there is no certainty what Mr Moore will earn from month to month.[53] As already noted,27 it might have been possible to avoid these difficulties ifPropellor had undertaken to pay Mr Moore's income for the 12 month period on the basis of the income he earned when working for Propellor, but this has not occurred.[54] We therefore agree with Woolford J that this factor favours Mr Moore. We do not agree that the Judge erred in taking it into account.Quick resolution of substantive proceedings[55] Woolford J took into account the availability of arbitration as a means of achieving a quick resolution of the substantive proceedings.28 He did so on the basis of the dispute resolution provision in the independent service agreement between Propellor and Mr Moore and art 16(1) in sch 1 of the Arbitration Act which kept it alive notwithstanding the termination of the agreement.29[56] On this issue we do not agree with the Judge's approach because:(a) The dispute resolution provision in the agreement provided for negotiation and mediation as prerequisites to arbitration. That process had not been invoked by either party before the High Court proceeding was issued.(b) Mr Moore did not seek a stay of the High Court proceedings under art 8(1) of sch 1 of the Arbitration Act which he ought to have done if he wanted the dispute to go to arbitration.27 Above at [27].28 High Court decision, above n 1, at [27]–[28].29 David Williams and Amokura Kawharu (eds) Williams and Kawharu on Arbitration(LexisNexis, Wellington, 2011) at [4.11].(c) The day after the hearing before Woolford J, Mr Moore submitted to the jurisdiction of the Court by filing his statement of defence and counterclaim.(d) The parties can now only proceed to arbitration by agreement.(e) In these circumstances it is understandable that Propellor shouldquestion whether Mr Moore's late notice to arbitrate is genuine.(f) While it is possible that reference of the dispute to arbitration might resolve it more quickly than Court proceedings, there is no guarantee of that outcome.[57] In our view therefore, this factor was at best neutral and not one that ought to have been taken into account in favour of declining the application and that the Judge did err in doing so.[58] At the same time, however, we do not consider that this error by the Judge undermined his exercise of the discretion because the three factors to which we have already referred provided more than sufficient justification for his decision.The status quo[59] After considering the factors he considered relevant to the balance of convenience and standing back and assessing where the overall justice in the matter lay, Woolford J considered that Mr Moore should not be restrained. He then added that the status quo should be preserved.30[60] In our view the Judge's reference to the preservation of the status quo wassimply to record his assessment of the outcome. It was not a factor that he took into account separately in exercising his discretion.30 High Court decision, above n 1, at [29].[61] We therefore do not agree with Propellor that it warranted the attention itreceived in Mr Gazley's submissions or that it demonstrated any error on the part ofthe Judge.[62] The status quo may be a relevant factor,31 but it was not in this case because, as a result of the factors we have outlined above, the case was not finely balanced.Overall justice[63] For the reasons given, we see no error by the Judge in assessing the balance of convenience and the overall justice in this case.Result[64] Accordingly, the appeal is dismissed.[65] As costs should follow the event, Propellor must pay Mr Moore's costs for astandard appeal on a band A basis and usual disbursements. We do not certify for second counsel.[66] We take the opportunity of recording our appreciation for the assistance provided by both counsel in their well-focussed submissions.Solicitors:Steindle Williams Legal, Auckland for AppellantSkeates Law Ltd, Auckland for Respondent31 American Cyanamid Co v Ethicon Ltd, above n 14, at 408; Safe Kids in Daily Supervision Ltd v McNeil [2012] 1 NZLR 714 (HC) at [23]–[27].