MCLEAN v MARSHALL [2016] NZHC 1276

MCLEAN v MARSHALL [2016] NZHC 1276

Because the Court of Appeal established claimant was entitled to recover costs to restore the source code and the rehearing produced credible evidence that Infoscan incurred and charged $103,033.08 in reasonable remedial costs to restore the code to its termination form, judgment is entered for Mr McLean for...

Source-derived case information.

Citation
[2016] NZHC 1276
Parties
First Plaintiff: Douglas Wayne Fraser McLean; Second Plaintiffs: D W F McLean and G H Thorpe as trustees of the McLean Family Trust; Defendant: Robert Ritchie Marshall
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 June 2016
Procedural Posture
Breach of Contract Joint Venture Software Development / Rehearing on Quantum of Damages (high Court Judgment Following Remittal From Court of Appeal)
Outcome
Judgment for first plaintiff against defendant for NZD 103033.08 plus interest under the Judicature Act 1908 from commencement of proceedings; separate earlier awards remain; costs for this rehearing to be fixed
Legal Topics
Breach of Contract, Damages for Failure to Deliver Source Code, Quantification of Loss, Mitigation, Res Judicata
Contract Law Civil Remedies Civil Procedure Breach of Contract Damages for Failure to Deliver Source Code Quantification of Loss Mitigation Res Judicata

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Parties

Douglas Wayne Fraser McLean

First Plaintiff

D W F McLean and G H Thorpe as trustees of the McLean Family Trust

Second Plaintiffs

Robert Ritchie Marshall

Defendant

Procedural Posture

Breach of Contract Joint Venture Software Development / Rehearing on Quantum of Damages (high Court Judgment Following Remittal From Court of Appeal)

Legal Issues

  1. 1 Whether defendant breached obligation to provide source code at termination (previously determined)
  2. 2 Quantum of damages recoverable for failure to provide source code in the form it existed at termination
  3. 3 Whether costs incurred to restore undocumented/altered source code were reasonably incurred and proven

Ratio Decidendi

Because the Court of Appeal established claimant was entitled to recover costs to restore the source code and the rehearing produced credible evidence that Infoscan incurred and charged $103,033.08 in reasonable remedial costs to restore the code to its termination form, judgment is entered for Mr McLean for $103,033.08 plus interest; res judicata prevents reconsideration of the separate $7,961.54 claim and mitigation arguments were rejected as unreasonable and unavailable given the defendant's conduct.

Court Disposition

Judgment for first plaintiff against defendant for NZD 103033.08 plus interest under the Judicature Act 1908 from commencement of proceedings; separate earlier awards remain; costs for this rehearing to be fixed

Orders

  • Judgment entered for the first plaintiff against the defendant for $103,033.08 plus interest under the Judicature Act 1908 calculated from the time proceedings were filed
  • Res judicata applies to the previously dismissed $7,961.54 Bridge Programme claim; it is not reopened