New Zealand horticultural group Turners & Growers has today taken the latest step in its legal stoush with kiwifruit marketer Zespri, lodging an appeal against the High Court dismissal of its claims against Zespri.
Speaking to Asiafruit at the ASIA FRUIT LOGISTICA trade show in Hong Kong, Turners & Growers (T&G) managing director Jeff Wesley said the company had today (8 September) lodged its appeal of the ruling against it by New Zealand’s High Court in August. Mr Wesley estimated the appeal would be heard within six months.
The High Court threw out all five separate charges brought against Zespri by T&G, which alleged the kiwifruit marketer had breached the New Zealand Commerce Act and engaged in anti-competitive activities.
The key factor in the decision was T&G’s failure to show that a deregulated kiwifruit export market was likely to exist in the near future, meaning that any allegedly anti-competitive behaviour on Zespri’s part would have no impact on T&G’s business.
T&G’s appeal will be based on the legal requirement to prove the likelihood of kiwifruit industry deregulation, Asiafruit has learned.
“The complicated legal argument can be distilled down to this; the judge found in our favour for all our claims, but said he couldn’t rule in our favour unless we could prove that the New Zealand kiwifruit market would be deregulated,” he said.
“But we’ve taken advice from a top QC, and he’s advised us that the judge was mistaken and we should have only had to prove that it could be deregulated, rather than it definitely would be. The legal argument will be that it could be `deregulated` rather than it would be.”
Mr Wesley said that on that basis, the QC estimated T&G’s chances of winning the appeal at more than 50 per cent.
Industry sources told Asiafruit the company could potentially also use the appeal as a bargaining chip to lower its legal costs. The ruling in August saw T&G required to pay Zespri’s legal costs, which equate to around NZ$400,000.
Winning the appeal would mean a roughly NZ$800,000 change in fortune for the company, but T&G could potentially offer to drop the appeal in exchange for Zespri agreeing to bear their own legal costs, Asiafruit understands.
