Precast NZ Limited v Anystep Limited [2015] NZHC 1535 (3 July 2015)

Last Updated: 10 July 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3171 [2015] NZHC 1535

BETWEEN	PRECAST NZ LIMITED Plaintiff
AND	ANYSTEP LIMITED First Defendant
AND	PETER JOSEPH EVANS Second Defendant

Hearing:	28 May 2015
Appearances:	M J Fisher/A T Burnet for the Plaintiff B Gustafson for the Defendants
Judgment:	3 July 2015

_{JUDGMENT OF THOMAS J}

This judgment was delivered by me on 3 July 2015 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date:...............................}

Solicitors:

Claymore Partners Limited, Auckland. Palmer & Associates Limited, Auckland.

PRECAST NZ LIMITED v ANYSTEP LIMITED [2015] NZHC 1535 [3 July 2015]

Introduction

[1] The plaintiff, Precast NZ Ltd (Precast), has applied for:

(a) an interim injunction restraining the first defendant, Anystep Limited (Anystep), from certain activities which Precast claims is in breach of a Licence agreement between the parties dated 22 December 2009 (the Licence);

(b) summary judgment in respect of Anystep’s counterclaim; and

(c) costs in connection with Precast’s summary judgment application against the second defendant, Peter Evans, which was settled between the parties.

[2] During the course of the hearing, the parties agreed that the orders sought in the interim injunction application could, with amendment, be made by consent. Those orders were made.

[3] Given that Precast’s application for summary judgment on Anystep’s counterclaim is now the main outstanding issue between the parties, I will address that first. I will then address costs on Precast’s applications for the injunction and summary judgment.

Background

[4] Precast is the management company of the Stresscrete group of companies which manufactures precast concrete components, and supplies them to the construction market.

[5] The Stresscrete Group is a joint venture between interests associated with Mr Paul Cane and interests associated with Mr Brett Russell. Mr Cane is the managing director of Precast.

[6] Anystep manufactures moulds for making precast concrete stairs and owns the intellectual property rights to the Anystep Moulding System (the System) which enables the cost effective installation of concrete stairs.

[7] Mr Peter Evans is the executive director of Anystep.

[8] Pursuant to the Licence, Anystep granted Precast the exclusive rights (with one exception) to use and sell the System in New Zealand for a term of 25 years, including an option to renew for a further term of 25 years.

[9] In August 2011, Precast acquired a 10 per cent shareholding in Anystep. [10] In March 2012, Mr Cane was appointed a director of Anystep.

[11] In the latter half of 2012, difficulties began to emerge in the working relationship between Mr Cane and Mr Evans.

[12] In May 2013, the shareholders with 90 per cent of the shares voted to remove Mr Cane as director of Anystep for allegedly not acting in the interests of Anystep. The actual reasons for his removal are in dispute.

[13] Mr Evans’ first affidavit alleges past breaches of the Licence by Precast but does not suggest Mr Cane’s conduct constituted a breach. In his second affidavit, Mr Evans asserts that a reason for Mr Cane’s removal as director of Anystep was his blocking the sale of machines to Reid Construction Systems Ltd (Reid). He does not suggest that Mr Cane’s alleged conduct constituted a breach of the Licence. It is in Mr Evans’ third affidavit that he says “the lack of support of the marketing provisions” formed part of the reason Mr Cane was removed as a director of Anystep. He refers to three emails, one of which, dated 31 October 2014, said:

Earlier this year we had been pointing out to Precast that again there had been breaches in the agreement, to which we still have never had satisfactory responses or answers to this day. These were significant breaches from our perspective and have without a doubt lost us sales in the UK market...

[14] By late December 2013, Precast had relinquished its 10 per cent shareholding in Anystep.

Anystep’s counterclaim

[15] Clause 10.2 of the Licence provides:

The Licencee agrees to support the Licensor in respect to (potential) overseas contacts and interested parties who are interested in licence or purchase options of the Anystep Moulding System. This includes but is not limited to Anysteps moulds etc being included on the Licencee’s website.

[16] Anystep claims that Precast actively prevented Anystep from achieving any licensing or purchasing of the System in breach of cl 10.2. The claim is based on events which occurred in 2012 and 2013 and involved Reid, a New Zealand based supplier to the precast concrete sector with an Australian and United Kingdom sales network. Reid’s Chief Executive Officer, Mr Lawley, spoke to Mr Evans about marketing the System in overseas markets. Anystep claims that in a meeting in November 2012 (the Meeting), attended by a group including Mr Lawley, Mr Cane and Mr Evans, Mr Lawley said he would email a list (the List) of potential United Kingdom companies who would be interested in buying the System; that Mr Lawley supplied a List to Mr Cane who refused to give it to the other directors of Anystep; that Mr Lawley advised the Anystep directors that Reid wanted to engage with Anystep as an overseas distributor; and that Mr Lawley informed Mr Evans that Mr Cane had forbidden him to give him the potential customer information to Anystep.

[17] As a result, Anystep claims that Precast breached cl 10.2 of the Licence and caused Anystep loss of sales through Reid’s overseas network and that the breach is a substantial breach which is irreparable. Anystep seeks a declaration that the breach is repudiatory, entitling Anystep to cancel the Licence. Anystep also seeks damages to be quantified after discovery.

[18] Precast denies the allegations. By way of an affirmative defence, it says that no written notice of failure to comply with the Licence as required by cl 6.2.1 (Notice) has been given to Precast and, therefore, Anystep is not entitled to terminate the Licence and, in these circumstances, there is no basis on which the Court can properly make the declaration sought.

[19] Precast says that Anystep has not provided any evidential basis to show, as a matter of causation, it has suffered a real, substantial chance of financially benefitting from the supply of the List. The loss depends upon a hypothetical situation, whereby customers of Reid would actually enter into a business relationship with Anystep. In Mr Fisher’s submission, all Anystep has lost is the speculative chance of negotiating an agreement with a party named on the List.

[20] Precast has applied for summary judgment in respect of the counterclaim on the basis that the counterclaim can never succeed. Precast relies on the failure to serve the Notice, affirmation, and that, in any event, damages could never be awarded because they are purely speculative.

Law

[21] The Privy Council decision in Jones v Attorney General sets out the principles relevant to an application by a defendant for summary judgment as follows:¹

The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually summary judgment for a defendant will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.

Summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and the legal issues.

...

...if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own.

[22] It is insufficient to establish that only part of the plaintiff’s claim cannot

succeed:²

At the end of the day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.

¹ _{Jones v Attorney-General [2004] 1 NZLR 433 (PC) at [61], [62] and [64].}

² Westpac Banking Corp v MM Kembla NZ Ltd [2000] NZCA 319; [2001] 2 NZLR 298 (CA) at [64].

Issues

[23] In deciding whether Anystep’s counterclaim cannot succeed, the following

issues need to be addressed:

(a) Is failure to serve a Notice fatal to the counterclaim? (b) Did Anystep affirm the Licence?

(c) Could the claim for damages succeed?

Analysis

Is failure to serve a Notice fatal to the counterclaim?

[24] Clause 6.2.1 of the Licence provides:

Either party may by written notice to the other, terminate this Agreement with immediate effect upon the happening of the following:

If the other party fails to perform or observe any provision of this Agreement and that failure to observe or perform is not remedied within 30 days after written notice to the other party requiring it to be remedied.

[25] It is not dispute that Anystep has not served a Notice in relation to the claimed breach.

[26] In Mr Gustafson’s submission, the failure to give Notice is not a valid ground for granting the summary judgment application and it is common to seek declaratory relief where an alleged breach may give rise to non-monetary remedies such as specific performance or cancellation. He says the purpose of the declaration sought is to determine whether the alleged breach occurred and whether it gives the aggrieved party the right to terminate or simply claim damages.

[27] Mr Gustafson relies on the case of Rosinis Restaurant Ltd v Goldcorp Properties Ltd (Rosinis), where the Court recognised the danger that, if a plaintiff were incorrect in its interpretation of the defendant’s conduct and whether it gave rise to a right to cancel, then wrongly giving notice to the defendant that the contract

was cancelled actually puts the plaintiff itself in breach of contract. In that case, Chilwell J stated:³

In relation to repudiatory conduct of the type involved in this case – the insistence upon different views of its terms – there are authorities for the proposition that a contracting party may maintain his different view of the interpretation of a contact without his conduct being regarded as evincing an intention to repudiate so long as he is willing to accept an authoritative exposition of the correction interpretation.

[28] Mr Gustafson notes that all Anystep seeks is a declaration as to whether the alleged behaviour of Precast would entitle Anystep to terminate the Licence. He refers to the following passage from Rosinis, where Chilwell J cited with approval the leading Australian decision of DTR Nominees Pty Ltd v Mona Homes Pty Ltd:⁴

No doubt there are cases in which a party, by insisting on an incorrect interpretation of a contract evinces an intention that he will not perform the contract according to its terms. But there are other cases in which a party, though asserting a wrong view of a contract because he believes it to be correct, is willing to perform the contract according to its tenor. He may be willing to recognise his heresy once the true doctrine is enunciated or he may be willing to accept an authoritative exposition of the correct interpretation. In either event an intention to repudiate the contract could not be attributed to him. As Pearson LJ observed in Sweet & Maxwell Ltd v Universal News Services Ltd:

“In the last resort, if the parties cannot agree, the true construction will have to be determined by the court. A party should not too readily be found to have refused to perform the agreement by contentious observations in the course of discussions or arguments...”

[29] Mr Gustafson says this is what is being sought here. If the declaration is given in Anystep’s favour, Anystep can then decide whether to initiate the termination provision in the Licence.

[30] On my reading of Rosinis, the Judge was discussing the issue of repudiatory behaviour and whether maintaining a different view of the meaning of a contract could be seen as demonstrating an intention to repudiate. I am therefore not satisfied

_{that the authority relied on by Mr Gustafson can be used for the purpose he seeks.}

3. Rosinis Restaurant Ltd v Goldcorp Properties Ltd (1989) 1 NZ ConvC 190, 114 (HC) at 225 (footnotes omitted).

⁴ DTR Nominees Pty Ltd v Mona Homes Pty Ltd 138 CLR 432 (HCA) at 432 (footnote omitted).

[31] The comments are, however, relevant to the meaning of repudiation as Anystep seeks a declaration that Precast’s actions amounted to a repudiatory breach. Richardson J has explained the law on repudiation as follows:⁵

An announcement by one party of its determination to perform in a manner which is inconsistent with its obligations under the contract evinces an intention not to perform the contract according to its terms. Whether the conducts relies on goes that far must be determined objectively and having regard to all the circumstances of the particular case.

[32] In Mr Fisher’s submission, there is no evidential basis on which it might be said that Precast has made it clear that it did not intend to perform or complete its obligations under the Licence. None of Anystep’s affidavits claim that the alleged failure to supply the List was a breach of the Licence, he says. Mr Fisher points out that Mr Cane was removed as a director in May 2013 because of an alleged breach of his duties as a director. There has been no allegation, either at the time or since, that any failure to supply the List was a breach of Precast’s obligations pursuant to cl

10.2 of the Licence. Mr Fisher says the only allegation has been a breach fiduciary duty by Mr Cane rather than a breach of the Licence by Precast.

[33] In Mr Gustafson’s submission, there are genuine conflicts of evidence and the Court needs to assess the credibility of the parties. He says they can be determined only on evidence given in Court tested by cross-examination. He refers to the difference in the affidavits as to what happened at the Meeting, noting Mr Cane’s evidence that he never saw such a List. Mr Gustafson then refers to an email dated

1 November 2012 which Precast provided in discovery only the week prior to the hearing and which Anystep maintains is the List contemplated.

[34] Mr Gustafson submits that the evidence in support of the application for summary judgment on the counterclaim is plainly wrong and contradicted by contemporaneous documentation and correspondence. It is artificial, he says, to suggest that Mr Cane possessed the List in his capacity as a director of Anystep only. In any event, simply because Mr Cane was removed as a director of Anystep does

_{not preclude a claim against Precast.}

⁵ Starlight Enterprises Ltd v Lapco Enterprises Ltd [1979] 2 NZLR 744 (CA) at 747.

[35] Although I accept there may be some deficiency in the evidence as to whether the allegations relate to Mr Cane’s actions as a director of Anystep rather than alleging a breach by Precast, the position is not as clear cut as Mr Fisher suggests. Mr Evans’s affidavit dated 26 April 2015 refers to “Precast [having] been in breach of the license [sic] agreement for non-payment and the lack of support of the marketing provision”. There is therefore some foundation for the claim.

[36] The problem for Anystep is that it was clearly aware of the alleged repudiatory conduct, as evidenced by the fact that Mr Evans, as he accepts in his affidavit, had raised concerns about non-payment and breach of cl 10.2 on different occasions. Anystep did not, however, serve Notice on Precast.

[37] Section 5 of the Contractual Remedies Act 1979 (the Act) provides:

Remedy provided in contract

If a contract expressly provides for a remedy in respect of misrepresentation or repudiation or breach of contract or makes express provision for any of the other matters to which sections 6 to 10 relate, those sections shall have effect subject to that provision

[38] Therefore, s 7 of the Act, which deals with cancellation of a contract, has effect subject to cl 6.2.1 of the Licence.

[39] The parties explicitly provided for a right of termination for breach and the manner in which it could be exercised. The purpose of the Notice is to give the party in default the opportunity to remedy the failure and thus prevent termination. Because Anystep has not served the required Notice, it is not entitled to terminate the Licence. It follows that its counterclaim seeking a declaration that it is entitled to terminate the Licence cannot succeed.

[40] This issue is closely related to that of affirmation which is the next issue to be addressed.

Did Anystep affirm the Licence?

[41] Section 7(5) of the Act provides:

(5) A party shall not be entitled to cancel the contract if, with full knowledge of the repudiation or misrepresentation or breach, he has affirmed the contract.

[42] Relevant too is cl 10.5 of the Licence which provides:

No failure or delay by either party to exercise any right or remedy under this Agreement will be treated as a waiver of such right or remedy. No single or partial exercise of any right or remedy will prevent the further exercise of such right or remedy.

[43] Precast’s position is that, even if Anystep had the right to terminate the

Licence, it has subsequently affirmed it and thus lost the right to terminate.

[44] Mr Gustafson submits that it is a prerequisite to the affirmation that the innocent party is aware of the facts giving rise to its rights.⁶ He then refers to the fact that, up until the week before the hearing, Mr Cane consistently maintained that he never had a List. However, that changed with the disclosure of the email dated 1

November 2012 from Mr Lawley to, inter alia, Mr Cane. In that email, Mr Lawley provided the name of 10 precasters, apparently in the United Kingdom, who could have some interest in the System. In those circumstances, Mr Gustafson says that Anystep did not know the relevant facts and therefore could not have affirmed the Licence. While Anystep was suspicious that Precast was not disclosing information, it was no more than that.

[45] Mr Gustafson also relies on cl 10.5 to prevent any waiver by Anystep from prejudicing its rights to terminate the Licence.

[46] Precast says that Anystep has affirmed the Licence in its dealings with Precast, even if there had been any breach entitling Anystep to terminate and it did so with full knowledge of the alleged breach. In particular, Precast and Mr Evans entered into an agreement on 19 December 2013 (the Supply Agreement), whereby Precast transferred its shares in Anystep to Mr Evans and, by virtue of cl 5 of the

_{Supply Agreement, Precast effectively affirmed the Licence.}

⁶ Tele2 International Card Company SA v Post Office Ltd [2009] EWCA Civ 9 at [53].

[47] Mr Fisher refers to emails dated 21 August 2014 and 7 September 2014 from Mr Evans to representatives of Precast, as evidence that any alleged breach had been rectified. In the email of 21 August 2014, Mr Evans stated:

In the last 12 months we have had to serve notice on Precast a number of times that it was in breach of our Agreement, only then did Precast comply.

[48] Similar comments were made in the email of 7 September 2014:

Precast NZ has chosen on numerous occasions not to comply with the contact and only performs once and when Anystep has taken the step of enacting the termination provisions of the contract.

[49] Finally, Precast refers to the supply and delivery of Anystep moulds to

Precast under the Supply Agreement in December 2014 as evidence of affirmation.

[50] The particulars of the counterclaim include:

On 16 November 2012 Mr Lawley sent the Anystep directors a letter stating

Reids wanted to engage with Anystep Limited as a distributor overseas;

Mr Lawley later informed Mr Evans by telephone he had supplied this list via email to Cane who subsequently refused to pass it over to the other directors of Anystep;

After further negotiations Mr Lawley informed Mr Evans in telephone conversations on 19 and 20 March 2013 that Mr Cane had forbidden him to pass over this potential customer information to Anystep and he (Mr Lawley) felt compelled to comply as Mr Cane’s company was his largest NZ customer and he could not jeopardise this relationship.

[51] Mr Evans’ affidavits repeat those allegations. It is therefore artificial for Anystep to say it had suspicion only that there had been a breach of the Licence. Anystep was clearly on notice of a breach and could have acted after the telephone conversations between Mr Lawley and Mr Evans which allegedly took place in mid- March 2013. On the basis of Anystep’s own pleadings and evidence, it was aware of the facts giving rise to its rights. I accept the evidence to which Mr Fisher refers, as detailed above, that, even if there had been a breach, Anystep has affirmed the Licence.

[52] Anystep cannot rely on the non-waiver provision in cl 10.5 of the Licence. A

non-waiver provision does not relieve a party of its obligation to make an election

whether to affirm or repudiate a contract or of the consequences of its conduct in affirming it. As the Court said in Tele2 International Card Company SA v Post Office Ltd:⁷

In short, clause 16 cannot prevent the fact of an election to abandon the right to terminate from existing: either it does or it does not. This conclusion is reinforced I think, by the terms of clause 16 itself. Although it stipulates that “in no event shall any delay, neglect or forbearance” on the part of any party in enforcing a provision of the Agreement “...be or be deemed to be a waiver” of the provision or “...shall in any way prejudice any right of that party under this Agreement”, it does not deal at all with the issue of election of whether or not to exercise a contractual right. The general law demands that a party which has a contractual right to terminate a contract must elect whether or not to do so – even assuming that any contractual provision could exclude the operation of the doctrine.

[53] There can be no enforceable right to terminate the Licence because a Notice has not been given and Anystep has affirmed the Licence. The Court’s power to make a declaration is discretionary and will not be exercised unless the declaration will be of some use.⁸

Could the claim for damages succeed?

[54] For the Court to grant summary judgment, it would need to find not only could the alleged breach not give rise to the declaration sought but also that the breach could not give rise to damages. Mr Gustafson submits the Court cannot make a finding that a claim for damages cannot succeed and it is more than arguable.

[55] Mr Gustafson says that the loss of opportunity from having the List withheld caused loss. This will require evidence from the potential purchasers named in the List about the likelihood they may have purchased the System from Anystep. The email dated 1 November 2012 included the names of 10 precasters in the United Kingdom, who Mr Lawley described as possibilities. Given the late disclosure, it is too early to say what the quantum of damage might be.

[56] Precast says, however, that there is no evidence that Anystep suffered or could have suffered any loss of business through not being supplied with any List.

⁷ _{Tele2 International Card Company SA, above n 11, at [56].}

⁸ Turner v Pickering [1976] 1 NZLR 129 (NZSC) at [141].

In Mr Fisher’s submission, any loss would be too remote to be recoverable and any such damages would not realistically be capable of quantification. He says it is speculation that the supply of those names would have led to any orders. He refers to the case of Powerbeat Canada Ltd v Powerbeat International Ltd which considered damages for lost opportunity.⁹ Penlington J recognised the difficulties associated with proof and damages in respect of a claim of loss of chance. He referred to the issue of causation, citing other cases and noting with approval¹⁰ the

words of Brennan J in Sellars v Adelaide Petroleum NL:¹¹

Where a loss is alleged to be a lost opportunity to acquire a benefit, a plaintiff who bears the onus of proving that a loss was caused by the conduct of the defendant discharges that onus by establishing a chain of causation that continues up to the point when there is a substantial prospect of acquiring the benefit sought by the plaintiff. Up to that point, the plaintiff must establish both the historical facts and any necessary hypothesis on the balance of probabilities.

[57] Penlington J summarised what a plaintiff is required to establish on causation as follows:¹²

Applying these principles to the present case, I therefore conclude that the plaintiff is required to establish, on the balance of the probabilities: (i) that but for the repudiation it would have sought a sublicence; (ii) that as the result of the repudiation it lost a real and substantial, and not merely a speculative chance of successfully negotiating a sublicence with a third part so as to confer a benefit on the plaintiff; and (iii) that it thereby suffered loss (which can be measured in monetary terms).

[58] The email of 1 November 2012 was disclosed to Anystep the week before the hearing. Anystep says that, had the email been disclosed earlier, it would have had the opportunity to approach the companies named in the email to obtain evidence as to whether those companies would likely have purchased the System. That evidence could then support Anystep’s claim for damages. Mr Fisher says, however, that there is no evidence at all to support the counterclaim. Anystep could have contacted precasters in the United Kingdom and placed some evidence before the Court to support the counterclaim and damages. In the absence of any evidence whatsoever,

_{the claim is pure speculation, in Mr Fisher’s submission.}

⁹ _{Powerbeat Canada Ltd v Powerbeat International Ltd [2002] 1 NZLR 820 (HC).}

¹⁰ _{Above n 15, at [191].}

¹¹ _{Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 (HCA) at 368.}

¹² Above n 15, at [196].

[59] Given that Anystep has only very recently received the email of

1 November 2012 which provides details relevant to its claim, I am not, at this stage, prepared to say that any loss is purely speculative. Anystep would need the opportunity to make enquiries as a result of the information contained in the email.

[60] For that reason, I cannot be satisfied that a claim for damages could not succeed. I am therefore not satisfied on the balance of probabilities that Anystep could not succeed on all parts of its counterclaim.

Costs on interim injunction application

[61] Precast seeks costs on the interim injunction application on the basis that the hearing was the first time the defendants offered the undertakings in the terms agreed.

[62] The defendants oppose that course, submitting that the undertaking incorporates the express terms of the Licence and therefore there was no need to continue with the application. The defendants say they were always prepared to abide by the terms of the Licence.

[63] Precast sought an injunction restraining Anystep from assisting anyone to purchase the System where Anystep knew “or ought reasonably to know” that the System would be used in New Zealand. The words in contention are those in the quotes. The matter was resolved by the order which incorporates reference to wilful blindness rather than the contentious wording. Wilful blindness is different from whether someone ought reasonably to know something. Precast’s position, however, is that a proper construction of the Licence incorporates that obligation on the part of Anystep. The terms of the order were agreed simply for expedience as an interim measure and without prejudice to Precast’s position at the substantive hearing.

[64] Because the issue relates to that which will be decided in the substantive hearing, the costs of the interim injunction application should be determined when the result of those proceedings is known.

Costs on plaintiff ’s summary judgment

[65] Precast had sought specific performance of Mr Evans’ obligations under the Supply Agreement by its summary judgment application on 3 December 2014. The issue concerned the failure by Mr Evans to deliver four of five Anystep moulds which Precast claimed were due for delivery by 28 November 2014. While Precast accepts that, initially, it indicated there was no urgency in the delivery, Precast subsequently clarified its position and made repeated demands for delivery including by lawyers’ letters dated 12 September 2014 and 7 October 2014.

[66] Precast commenced the summary judgment proceedings on

3 December 2014. Mr Evans delivered the outstanding four Anystep moulds on

11 and 12 December 2014. There was an issue regarding outstanding parts but they those have all now been received.

[67] Because the moulds were delivered, Precast no longer needed to continue with its application. It does, however, seek costs associated with the application and filing of affidavits in reply to Mr Evans’ affidavit in opposition.

[68] Mr Gustafson says that estoppel was clearly an issue on which Mr Evans could have relied. The manufacturing process is not a straightforward one and it was unreasonable suddenly to impose tight time scales on Mr Evans.

[69] While Anystep might have been able to say that it had acted in reliance on assurances from Precast that there was no urgency in delivery of the moulds, the position was rectified by subsequent communications. There was a failure to comply with the Supply Agreement, requiring Precast’s application for summary judgment. I am satisfied, in the circumstances, that Precast is entitled to costs on its application for summary judgment on a 2B basis.

Result

[70] For the reasons given, Precast’s application for summary judgment in respect of Anystep’s counterclaim is dismissed. Precast’s costs in connection with the interim injunction application are reserved until the outcome of the substantive

proceedings is known. Precast is awarded costs on a 2B basis in respect of its

_{summary judgment application against Mr Evans.}

Thomas J