Holly Sherlock

AgriMarine Holdings Inc. and AgriMarine Industries Inc. appealed a decision dismissing their application for a declaration that Akvatech AS was in breach of contract and not the holder of a license to fish-rearing technology.

The parties had entered into a Letter Agreement dated November 20, 2012, whereby Akvatech would acquire ownership and licensing rights to the technology for certain territories in exchange for a $200,000 pre-payment.

The transaction was not completed by the target closing date, and the parties terminated the agreement by mutual conduct.

Akvatech demanded repayment of the pre-payment amount, issued a default notice when not repaid, and exercised its right under the agreement to obtain a perpetual, irrevocable, exclusive license to the technology in the Northern Europe Territory.

The application judge found neither party was in breach, the agreement had been terminated by mutual consent, and Akvatech was entitled to the license.

The appellants argued the application judge erred in permitting Akvatech to take advantage of its own breach, that there was no default by AgriMarine, and that the license was unenforceable due to unlimited duration and no royalty provisions.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding errors of fact or reversible errors in contract interpretation.

Following the dismissal of the applicants' application for a declaration regarding a licensing agreement, the successful respondent sought costs of $97,696.78 on a partial indemnity basis.

The applicants argued the costs were excessive and suggested $65,000.

The court rejected the applicants' argument that hours spent on moot issues should be excluded, noting the issues only became moot after the fact.

The court fixed costs at $80,000 all inclusive, finding it to be a fair and reasonable amount.