Recent Cases

Creak v Ford Motor Company of Australia Ltd [2023] NSWCA 217 (13 September 2023) (Gleeson, Kirk and White JJA)


COMMERCE — Restraint of trade — Deed of settlement of litigation involving allegations of misleading or deceptive conduct, passing off, and unconscionable conduct — Where respondent instituted proceedings to restrain appellant and company controlled by him from “raptorising” its vehicles — Where “raptorisation” connotes affixing materials to respondent’s vehicles — Where appellant undertakes that neither he nor his “Related Entities” will engage in conduct proscribed by deed — Where appellant’s company subsequently engage in conduct proscribed by deed — Whether restraint of trade doctrine applies to deeds of settlement — Whether mandatory and prohibitive injunctive relief appropriate in circumstances of case — Held that undertaking not void as being in restraint of trade — Injunctive relief granted

EVIDENCE — Admissibility of evidence of prior orders of Common Law Division to prove existence of fact in issue — Where fact in issue quantum of respondent’s loss caused by appellant’s breaches of covenant and indemnity — Where no other evidence sought to be adduced to quantify loss — Whether prohibition in s 91(1) of Evidence Act 1995 (NSW) extends to orders — Evidence of prior orders held inadmissible

CONTRACTS — Breach of contract — Remedies — Equitable remedies — Injunctions — Whether undertaking not to engage in proscribed conduct better characterised as undertaking or warranty — Whether classification of term as warranty preclusive of injunctive relief — Held that classification of term irrelevant to grant of injunctive relief