Focus Genetics Limited Partnership (2548500) v Croser [2019] NZCA 639 (12 December 2019)

Last Updated: 17 December 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA621/2019 [2019] NZCA 639

	BETWEEN	FOCUS GENETICS LIMITED PARTNERSHIP (2548500) Applicant
	AND	DAMIEN LEIGH CROSER AND KIRSTEN LOUISE CROSER Respondents

Court:	Miller and Goddard JJ
Counsel:	D McLellan QC, S Bisley and P Niven for Applicant C M Stevens and T Mijatov for Respondents
Judgment: (On the papers)	12 December 2019 at 10.00 am

JUDGMENT OF THE COURT

1. Leave to appeal is granted.
2. Application for stay is granted on the terms set out in [4].

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REASONS OF THE COURT

(Given by Miller J)

[1] This is an application for leave to appeal from an interlocutory judgment of the High Court^[1] and for stay of that judgment pending disposition of the appeal.^[2] The judgment below was given on 18 November 2019.^[3] The High Court refused a stay and leave to appeal in a judgment delivered on 29 November 2019.^[4]
[2] We grant leave to appeal for the following reasons. First, the merits of the Crosers’ claim to data held or controlled by Focus Genetics Limited Partnership (Focus), whether under the alleged settlement or antecedent agreements, are contestable. Second, the judgment under appeal imposed a mandatory injunction on terms that are more extensive than necessary to protect the Crosers’ position in the interim and are arguably tantamount to final relief. To preserve Focus’s position it is necessary to ensure that pending a decision on the merits the Crosers are not provided with raw data or linkage information pertaining to the New Zealand flocks.
[3] We order a stay of the orders made in paragraph [70(a)] of the judgment below for the same reasons.^[5]
[4] The stay is granted on terms that Focus must take or procure the following steps pending disposition of the appeal or further order of the Court:

(a) The Crosers are to be provided with ASBVs^[6] for rams they offer for sale.

(b) The Crosers are to be provided with pedigree information for the rams they offer for sale. “Pedigree information” means the identity of parents and grandparents, without ASBVs or any additional information about them.

(c) The information in (a) and (b) is to be made publicly available on LambPlan.

[5] For the avoidance of doubt, this judgment does not affect the orders made in paragraph [70(b)–(e)] of the judgment below.^[7]
[6] The Registrar is to convene a case management conference when the Court resumes sittings in 2020. At that time counsel should be in a position to advise the Court when the underlying proceedings are to be tried in the High Court.
[7] Costs are reserved.

Solicitors:
Buddle Findlay, Wellington for Applicant
Succeed Legal Ltd, Wellington for Respondent

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^[1] Senior Courts Act 2016, s 56(6).

^[2] Court of Appeal (Civil) Rules 2005, r 12(3).

^[3] Croser v Focus Genetics Limited Partnership [2019] NZHC 2995 [Interim injunction].

^[4] Croser v Focus Genetics Limited Partnership [2019] NZHC 3133.

^[5] Interim injunction, above n 3.

^[6] Australian Sheep Breeding Values.

^[7] Interim injunction, above n 3.