PRECAST NZ LIMITED v ANYSTEP LIMITED [2015] NZHC 2375

PRECAST NZ LIMITED v ANYSTEP LIMITED [2015] NZHC 2375

There is no jurisdictional bar to Anystep joining Paul Cane by third party notice under r 4.4(1)(c); r 5.57 did not compel joinder as an additional counterclaim defendant because the remedy sought against Cane (damages for breach of fiduciary duty/loss of opportunity) is distinct from the relief in the counterclaim against Precast; Anystep has sufficient evidential basis (including newly located email) to raise a real question of fact concerning Cane's conduct and loss, delay is explicable and not prejudicial at the interlocutory stage, and the interests of justice and avoidance of duplicative proceedings require granting leave to join Cane.

Citation
[2015] NZHC 2375
Parties
Plaintiff/respondent: Precast NZ Limited; First Defendant/applicant: Anystep Limited; Second Defendant: Peter Joseph Evans
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 September 2015
Procedural Posture
Commercial Civil Litigation / Interlocutory Application for Leave to Join Third Party (joinder)
Outcome
Application for leave to issue third party notice against Paul Cane granted.
Legal Topics
Third Party Joinder, Counterclaim Joinder, Director Fiduciary Duties, Corporate Opportunity Doctrine, High Court Rules R 4.4 and R 5.57
Company Law Civil Procedure Contract Law Fiduciary Law Third Party Joinder Counterclaim Joinder Director Fiduciary Duties Corporate Opportunity Doctrine +1 more

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Parties

Precast NZ Limited

Plaintiff/respondent

Anystep Limited

First Defendant/applicant

Peter Joseph Evans

Second Defendant

Procedural Posture

Commercial Civil Litigation / Interlocutory Application for Leave to Join Third Party (joinder)

Legal Issues

  1. 1 Whether a defendant who has filed a counterclaim may join a third party under r 4.4 rather than as an additional counterclaim defendant under r 5.57
  2. 2 Whether there is a real question or issue between Anystep and Paul Cane relating to the subject matter of the proceeding such that joinder is appropriate (including whether Anystep can show loss)
  3. 3 Whether delay or prejudice to Precast justifies refusal of leave

Ratio Decidendi

There is no jurisdictional bar to Anystep joining Paul Cane by third party notice under r 4.4(1)(c); r 5.57 did not compel joinder as an additional counterclaim defendant because the remedy sought against Cane (damages for breach of fiduciary duty/loss of opportunity) is distinct from the relief in the counterclaim against Precast; Anystep has sufficient evidential basis (including newly located email) to raise a real question of fact concerning Cane's conduct and loss, delay is explicable and not prejudicial at the interlocutory stage, and the interests of justice and avoidance of duplicative proceedings require granting leave to join Cane.

Court Disposition

Application for leave to issue third party notice against Paul Cane granted.

Orders

  • Leave granted to Anystep Limited to issue a third party notice and join Paul Cane in terms of the draft amended statement of counterclaim and third party claim.
  • Anystep Limited to have costs on a 2B basis together with disbursements on the application and all steps associated with it.