But victory is qualified for Quin, with the long running high-profile case between the two parties resulting in a ruling enabling him to continue selling his RPR fertiliser at the centre of the dispute, albeit with label qualifications.
Ballance had sought an injunction against Quin’s Quinfert Algerian sourced RPR fertiliser. The company alleged he made false product claims and was in breach of the Fair Trading Act with the product’s labelling and advertising.
The focus of Ballance’s allegation was the product failed to meet the New Zealand FertMark test for RPR solubility, known as the Citsol test. The test is an indicator of how quickly an RPR will dissolve.
The complex judgement had Justice Venning concluding the Algerian RPR could be described as an RPR in a number of overseas jurisdictions, but in NZ RPR had a specific meaning to its users, being a phosphate rock that met industry standards, as set by FertMark and using the Citsol test.
He determined any references by Quin to the Algerian sourced RPR, apart from its V2 variant, about meeting the Citsol test was misleading.
This was despite the addition of fine print by Quin.
No qualifier was necessary for Quin’s “V2” variant, where the removal of dolomite had ensured it met the FertMark Code.
Justice Venning ruled that to continue to advertise Algerian RPR in NZ without the qualification confirming it did not meet the FertMark Code for RPR would be misleading, and an injunction should prevent that issue.
He requested a “suitably phrased” qualification be printed on any labelling associated with the product.
But the judge found apart from not meeting the Citsol RPR test, the product met other tests for RPR. Therefore, rather than be banned consumers (farmers) should have the Quin product available to them, provided it was made clear it did not satisfy the FertMark Code.
“The Court should not shut out competition in this area provided the terms of the injunction can properly inform the relevant market participants,” he ruled.
Ballance has claimed the ruling is a win for the company’s efforts to seek more comprehensive labelling on the Quinfert product.
“The High Court ruling is a landmark decision that supports the robustness of Fertmark,” Ballance chief executive Mark Wynne said.
He said it would have been negligent of Ballance to do nothing about the product.
Quin had challenged the validity of the FertMark test in the case, and noted the court’s observation that it was the only test in official use in NZ. He claimed the 30-minute solubility time limit was an arbitrary one.
Fertiliser Quality Council chairman Anders Crofoot said based on the Citsol test, NZ’s definition of RPR tends to be more rigid than that of other countries.
Another test, the Watkinson Dissolution test, was at least a year away from being commercially reliable for testing labs to use.
This test would give a better indication of the degree of RPR solubility, and a solubility scale would enable farmers to choose RPR type based on their individual farm situation.
“A farmer in an area with high rainfall and acidic soils may for example choose a less soluble RPR than one in a drier area,” Crofoot explained.
He confirmed Quin’s RPR would be categorised under a clearer descriptor, Directly Applied Phosphate Rock (DAPR) and would not require the qualifiers the judge was requiring under current definitions.
“The court ruling seems pretty fair, but I can also see Bert’s point of view on this,” he said.
The court also noted Quin’s product had better or equal agronomic performance to North Carolina RPR and that it had been rigorously assessed by the International Fertiliser Development Centre as being a highly reactive phosphate rock.
Quin first started importing RPR from Egypt under the QuinPhos brand back in 1990, ultimately taken over by Ballance in early 2009.
