Cleary v Kocatekin - [2012] NSWSC 364

Supreme Court

New South Wales

Medium Neutral Citation: Cleary v Kocatekin [2012] NSWSC 364
Hearing dates: 17 April 2012
Decision date: 18 April 2012
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Upon the Plaintiff giving the usual undertaking as to damages, I order that the Second Defendant be restrained from televising, streaming, transmitting or otherwise publishing, whether by the television program known as 'Today Tonight' or any other television program, via the internet or otherwise, any material dealing with the subject matter of the dispute in proceedings number HB 11/55779 in the Consumer, Trader and Tenancy Tribunal, or otherwise dealing with the building contract between the Plaintiff and the First Defendant, or the costs of or the nature and quality of the building works performed to the First Defendant and/or others by the Plaintiff.
2. Costs to be costs in the cause.

Catchwords: EQUITY - injunctions - auxiliary jurisdiction - to restrain party assisting in breach of contract - settlement of proceedings by confidential deed - breach by one party to deed - intention of television station to broadcast material in breach of deed - whether broadcast would amount to further breach - whether serious question to be tried.
Legislation Cited: Home Building Act 1989
Cases Cited: Donnelly v Amalgamated Television Services Pty Ltd (1998) 45 NSWLR 570
Film Financial Consultants Ltd v Becker Group Ltd [2006] NSWSC 319
Hitchcock v TCN Channel Nine [2000] NSWSC 198
Johnss v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408
Short v City Bank of Sydney (1912) 15 CLR 148
Category: Interlocutory applications
Parties: John Cleary (Plaintiff)
Kate Kocatekin (First Defendant)
Seven Network (Operations) Ltd (Second Defendant)
Representation: Counsel:
M Lawson (Plaintiff)
No Appearance (First Defendant)
D R Sibtain (Second Defendant)
Solicitors:
Watkins Tapsell (Plaintiff)
No Appearance (First Defendant)
Addissons (Second Defendant)

File Number(s): 2012/119933

Judgment

The Plaintiff seeks an interlocutory injunction against the Second Defendant (Channel Seven) seeking to prevent it showing a segment in its Today Tonight program concerning the Plaintiff and the First Defendant.

Background

The Plaintiff is a builder who entered into a residential building contract with the First Defendant on 22 December 2009. Disputes arose between the parties to the contract in relation to the building work and what was due to the builder.

Proceedings were commenced in the Consumer, Trader and Tenancy Tribunal. Those proceedings were ultimately settled by a Deed of Release entered into between the parties on 19 January 2012. The Deed by its terms was intended to be a final settlement of all matters between the parties and there were mutual releases except in relation to statutory warranties under the Home Building Act 1989.

Two clauses in the Deed are of significance. They are as follows:

8.CONFIDENTIALITY

The terms of this Deed shall not be disclosed directly or indirectly by either of the parties in whole or part, except for the purposes of enforcement or as required by law.

9.NON DISPARAGEMENT

Each party agrees not to disparage or otherwise bring…

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.

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Details

Case: [2012] NSWSC 364
Decision Date: 18 April 2012

CaseChat Overview and Summary

Cleary v Kocatekin is a case involving a dispute between two parties, Cleary and Kocatekin. The central issue revolves around a breach of contract and the potential for further breaches through the broadcast of confidential material. The court's task was to determine whether Cleary had grounds to seek an injunction to prevent a television station from broadcasting information that was in breach of a confidential deed. This deed had been entered into as part of a settlement of earlier proceedings between the parties.

The legal issues before the court included whether the court had the authority to grant an injunction to prevent a breach of a confidential settlement deed, and if the television station's intention to broadcast the material constituted a further breach. The court was required to examine whether Cleary had established a serious question to be tried, which would justify the granting of an interlocutory injunction. The arguments centred around the enforceability of the confidentiality provisions in the settlement deed and the potential impact of the broadcast on the integrity of the settlement agreement.

In delivering its decision, the court found that Cleary had indeed established a serious question to be tried. It recognised that the confidentiality provisions in the settlement deed were binding and that the television station's intention to broadcast the material could amount to a further breach of that agreement. The court concluded that the potential for harm to Cleary's interests, should the broadcast occur, warranted the granting of an interlocutory injunction to prevent the television station from airing the material. The court's decision underscored the importance of upholding the terms of settlement agreements and the role of equity in enforcing such agreements where necessary.

The court ordered that the television station be restrained from broadcasting the material in question, pending the outcome of the proceedings. This decision highlights the court's willingness to intervene to protect the terms of settlement agreements, particularly where confidentiality is a key component.

Orders