Bathurst Real Estate Pty Ltd v Fairbrother - [2022] NSWSC 351

Supreme Court

New South Wales

Medium Neutral Citation: Bathurst Real Estate Pty Ltd v Fairbrother [2022] NSWSC 351
Hearing dates: 21, 22 March 2022
Decision date: 29 March 2022
Jurisdiction: Equity
Before: Kunc J
Decision:
Proceedings to be dismissed with costs

Catchwords:
CONTEMPT – Civil contempt – Breach of undertaking – Clarity of terms – Nature of ambiguity required to render undertaking unenforceable by punishment for contempt

Cases Cited:
Australian Competition and Consumer Commission (ACCC) v Hercules Iron Pty Ltd [2008] FCA 1182
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295
Gilford Motor Co Ltd v Horne [1933] Ch 935
ICT Pty Ltd v Sea Containers Ltd (1995) 39 NSWLR 640
Lade & Co Pty Ltd v Black (2006) 2 Qd R 531; [2006] QCA 294
Microsoft Corporation & Microsoft Pty Ltd v Marks (No 1) (1996) 139 ALR 99; [1996] FCA 709
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
R&I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd (1993) 10 WAR 59
TAL Life Limited v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68
Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277

Category: Principal judgment
Parties:
Bathurst Real Estate Pty Ltd (Plaintiff)
Sandy Michael Fairbrother (First Defendant)
Jay Patrick Cleary (Second Defendant)
Smile Real Estate Pty Limited (Third Defendant)
Representation:
Counsel:

M Thangaraj SC and D Mahendra (Plaintiff)
J Ireland QC (First, Second and Third Defendants)

Solicitors:
FCB Workplace Law (Plaintiff)
McGirr Lawyers (First, Second and Third Defendants)

File Number(s): 2020/251168
Publication restriction: No

Judgment

Summary

This is an action for contempt arising from an undertaking to the Court given as part of the settlement of an employment dispute. The litigious course of that dispute is one with which this Division is well familiar.
The first and second defendants (to whom I shall refer without disrespect as Fairbrother and Cleary) are real estate agents. For many years they were the employees of the plaintiff, Bathurst Real Estate Pty Ltd (BRE).
In November 2018, Fairbrother and Cleary registered Cleary Fairbrother Property Pty Ltd (CFP). On 18 March 2019, they resigned from their employment with BRE and on 5 April 2019 CFP obtained a corporate real estate licence. As part of these developments, CFP also entered into a franchise agreement with the third defendant, Smile Real Estate Pty Ltd ("Smile").
By summons dated 8 April 2019 filed in this Division, BRE sued Fairbrother and Cleary to enforce post-termination restraints in their respective employment contracts with BRE. The proceedings settled on 17 April 2019. The notations and orders made by consent and without admissions on that day included this undertaking to the Court by Fairbrother and Cleary (the Undertaking):

“NOTES the undertaking by the Defendants to the Court that they will remove and/or refrain from using the phrases "Bathurst Real Estate Agent" or "Bathurst Real Estate" in their email signatures…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Bathurst Real Estate Pty Ltd v Fairbrother and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWSC 351
Decision Date: 29 March 2022

CaseChat Overview and Summary

The parties involved in the case were Bathurst Real Estate Pty Ltd, the plaintiff, and Fairbrother, the defendant. The nature of the dispute was whether Fairbrother had breached a court undertaking, leading to an order for civil contempt. The court involved was the Supreme Court of New South Wales. The case hinged on whether the terms of the undertaking were clear enough to hold Fairbrother in contempt of court, and if not, what level of ambiguity was necessary to render the undertaking unenforceable by punishment for contempt.

The legal issues before the court were primarily concerned with the enforceability of an undertaking in circumstances where its terms were ambiguous. The court had to determine whether the ambiguity was sufficient to make the undertaking unenforceable, and if so, what the threshold for such ambiguity should be. The court also needed to consider whether the undertaking was clear enough to justify a finding of contempt.

The court found that the undertaking in question was indeed ambiguous and, as such, was unenforceable by punishment for contempt. The ambiguity was deemed sufficient to negate the enforceability of the undertaking, as the terms were not clear enough to bind the defendant to specific actions. The court emphasised that for an undertaking to be enforceable, it must be clear and unambiguous. In this instance, the ambiguity in the terms of the undertaking meant that the defendant could not be held in contempt for failing to comply with its terms. The court's decision hinged on the principle that a court cannot compel a party to act in a manner that is not clearly defined.

The final orders of the court were that the defendant was not in contempt of court for breaching the undertaking, as the terms of the undertaking were too ambiguous to be enforceable. The court clarified that where an undertaking is ambiguous, the party seeking to enforce it must demonstrate that the ambiguity does not render the undertaking unenforceable. In this case, the ambiguity was sufficient to negate the enforceability of the undertaking, and thus the defendant could not be held in contempt.

Orders