Recent Cases

DXC Eclipse Pty Ltd v Wildsmith [2023] NSWCA 98 (16 May 2023) (Bell CJ, Brereton JA and Simpson AJA)


Catchwords:


CONTRACTS – construction and interpretation – whether breach of non-competition covenant in Securities Purchase Agreement – meaning of a “Competing Business” – whether Respondents’ business “based on Microsoft Dynamics 365 technologies” or a “future, successor, or derivative” product – whether Respondents’ business “in competition with” the business purchased by the Appellant pursuant to the Securities Purchase Agreement – where Respondents’ business based on the supply of a product not supplied by the business acquired by the Appellant at the time the Securities Purchase Agreement was entered into

CONTRACTS – construction and interpretation – parol evidence rule – exceptions – whether “mutual concurrence” established by evidence of prior contractual negotiations

COMMERCE – restraint of trade – validity and reasonableness – length and scope of restraints – ladder clauses – whether restraint extending to the Respondents’ business based on the supply of a product not supplied by the business acquired by the Appellant was reasonably necessary to protect the Appellant’s legitimate interest in the goodwill it purchased when it acquired the business – where minimal level of competition between the product supplied by the Respondents’ business and the product supplied by the business purchased by the Appellant – where maximum temporal restraint period of seven years sought – where broad, international geographical restraint area sought

COMMERCE – restraint of trade – enforcement and relief – injunction – whether injunctive relief ought to have been awarded