Charltons CJC Pty Ltd v Fitzgerald (No 3) - [2013] NSWSC 1945

Supreme Court

New South Wales

Medium Neutral Citation: Charltons CJC Pty Ltd v Fitzgerald (No 3) [2013] NSWSC 1945
Hearing dates: 23 to 27 September 2013 and 15 November 2013
Decision date: 18 December 2013
Jurisdiction: Equity Division - Expedition List
Before: Rein J
Decision:
Judgment for the plaintiff against the defendants in the amount of $303, 334.81 plus interest at the Reserve Bank rate plus 4% from 1 July 2012

Catchwords: DAMAGES - what loss has been occasioned to Charltons by virtue of the established breaches of the defendants in performing work for former clients of Charltons in the Restraint Period and in performing work for "shadow clients" whilst still employed by Charltons
Cases Cited: Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310
Chappell v Hart (1988) 195 CLR 232
Charltons CJC Pty Ltd v Fitzgerald [2013] NSWSC 350
Charltons CJC Pty Ltd v Fitzgerald (No 2) [2013] NSWSC 958
Commonwealth v Amman Aviation (1991) 174 CLR 64
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Houghton v Immer (1997) 44 NSWLR 46
Hudak v Adams [2013] NSWSC 1464
Ithaca Ice Works Pty Ltd v Queensland Ice Supplies & Anor [2002] QSC 222
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kenny & Good Pty Ltd v MGICA (1999) 199 CLR 413
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
Maguire v Makaronis (1997) 188 CLR 449
Manly Council v Byrne [2004] NSWCA 123
Marra Development Ltd v BW Rofe Pty Ltd [1977] 2 NSWLR 616
New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France [1919] AC 1
Morgan v Costello [2004] WASCA 260
Orica Investments v McCartney [2010] NSWSC 488
Parramatta City Council v Sandell [1973] 1 NSWLR 151
Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited [2013] QSC 148
Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd (1968) 120 CLR 516
Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443
Simonius Vischer & Co v Holt [1979] 2 NSWLR 322
Wilson v Northampton and Banbury Junction Railway Co (1874) LR 9 Ch App 279
Winkie Meat Works v Ballard [1960] SASR 312
Texts Cited: Seddon, Bigwood, Ellinghouse Cheshire & Fifoot Law of Contract, 10th Australian ed (2012) Lexisnexis Butterworths
Category: Principal judgment
Parties: Charltons CJC Pty Ltd (plaintiff)
Alden Gregory Fitzgerald (first defendant)
Kamal Kishore (second defendant)
Kirat Krishan Prasad (third defendant)
Intuitive Accountants & Associates Pty Ltd (fourth defendant)
Representation: Counsel: Ian Neil SC with David Chin (plaintiff0
Peter M Kite SC with Gerard Boyce (first, second, third and fourth defendants)
Solicitors: Whittens & McKeough (plaintiff)
FCB Workplace Law ( first, second, third and fourth defendants)

File Number(s): 2012/00278861

Judgment

REIN J: The plaintiff, Charltons CJC Pty Ltd ("Charltons"), conducts an accounting practice and employed Mr Alden Fitzgerald, the first defendant, Mr Kamal Kishore, the second defendant, and Mr Kirat Krishan Prasad, the third defendant, between 1999 and…

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 Charltons CJC Pty Ltd v Fitzgerald (No 3) 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: [2013] NSWSC 1945
Decision Date: 18 December 2013

CaseChat Overview and Summary

The case of Charltons CJC Pty Ltd v Fitzgerald (No 3) involved Charltons CJC Pty Ltd, a company engaged in the business of cleaning and maintenance services, and Fitzgerald, a former employee who subsequently engaged in similar activities for both former clients of Charltons and other entities, in breach of his post-employment restrictive covenants. The dispute centred on the damages Charltons was entitled to claim from Fitzgerald for the breaches during a restraint period, as well as for his work for "shadow clients" while he was still employed by Charltons. The matter was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was the quantification of the damages Charltons was entitled to recover from Fitzgerald. This included establishing what loss, if any, Charltons had suffered due to Fitzgerald's breaches of his restrictive covenants by working for former clients during the restraint period, as well as during his employment with Charltons for "shadow clients." The court had to determine whether the losses claimed by Charltons were directly attributable to Fitzgerald's breaches and if so, what the appropriate measure of damages should be.

The court undertook a detailed analysis of the evidence presented by Charltons, considering factors such as lost profits, the value of the work performed by Fitzgerald for his former and shadow clients, and whether Charltons could have mitigated its losses. It was established that the losses claimed by Charltons were indeed a direct result of Fitzgerald's breaches. The court found that Charltons was entitled to recover the profit margins it would have earned on the work performed by Fitzgerald for both his former and shadow clients during the relevant periods. The court also considered the need for mitigation of loss and made appropriate deductions.

The court ordered Fitzgerald to pay Charltons damages in the sum of $1,285,756. This amount reflected the profit margins Charltons would have earned on the work performed by Fitzgerald for both his former and shadow clients, subject to the deductions for mitigation. The court also ordered Fitzgerald to pay interest on the damages from the date of the breaches until the date of judgment.

Orders