Cleary v Kocatekin and Seven Network (Operations) Ltd - [2012] NSWSC 692

Supreme Court

New South Wales

Medium Neutral Citation: Cleary v Kocatekin & Seven Network (Operations) Ltd [2012] NSWSC 692
Hearing dates: 13 June 2012
Decision date: 22 June 2012
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Claim against second defendant of inducing a breach of contract dismissed

Catchwords:
[INJUNCTIONS] - Restraint on publication of program in which first defendant breaches contract with the plaintiff - whether injunction should continue
[INDUCING BREACH OF CONTRACT] -whether publisher was aware of contract - whether constructive knowledge - whether intention to induce breach of contract
Cases Cited: Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26
Emerald Construction Co Limited v Lowthian [1966] 1 WLR 691
Fightvision Pty Ltd v Onisforou and Others; Tszyu v Fightvision Pty Ltd and Another (1999) 47 NSWLR 473
Hitchcock v TCN Channel 9 [2000] NSWSC 198
Northern Territory of Australia v Mengel [1995] HCA 65; (1995) 185 CLR 307
OBG Ltd v Allan; Douglas v Hello! Ltd; Mainstream Properties v Young [2008] 1 AC 1; [2007] UKHL 21
Short v The City Bank of Sydney (1912) 15 CLR 148
Category: Principal judgment
Parties: John Cleary (Plaintiff)
Kate Kocatekin (1st Defendant)
Seven Network (Operations) Ltd (2nd Defendant)
Representation: Counsel:
M Lawson (Plaintiff)
KP Smark SC (Defendants)
Solicitors:
Watkins Tapsell (Plaintiff)
Addisons (Defendants)

File Number(s): 2012/119933
Publication restriction: Nil

Judgment

Background

The plaintiff, John Cleary, is a builder. He entered into a building contract with the first defendant, Kate Kocatekin and her husband pursuant to which he undertook to build a house for them (the Contract). A dispute arose in relation to work performed by the plaintiff and the payment of some of the plaintiff's invoices. The first defendant and her husband commenced proceedings in the Consumer, Trader and Tenancy Tribunal (CTTT) in November 2011 seeking orders that they should not be required to make any further payments to the plaintiff. The plaintiff, the first defendant and her husband settled the CTTT proceedings and entered into a Deed of Release dated 19 January 2012 (the Deed). It is not in issue that the construction of the house was not completed by the plaintiffs.

Although there was a confidentiality order in relation to the Deed the parties have disclosed the relevant terms for the purposes of this litigation. Clauses 8 and 9 provide 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 into disrepute or otherwise cause any injury or potential injury or damage to the good name and standing of the other, either orally or in writing.

Accordingly the parties to the Deed agreed that they would not disclose the terms of the Deed. However that did not prevent the parties to the Deed from disclosing facts and circumstances in…

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 692
Decision Date: 22 June 2012

CaseChat Overview and Summary

The case of Cleary v Kocatekin and Seven Network (Operations) Ltd was heard in the Supreme Court of Queensland. The plaintiff, Cleary, sought relief from the defendants, Kocatekin and Seven Network (Operations) Ltd, in relation to a breach of contract and the publication of a television program that involved the first defendant allegedly breaching a contract with the plaintiff. Cleary sought an injunction to prevent the publication of the program, as well as damages for the breach of contract and inducing breach of contract.

The court was required to determine whether an injunction should continue to prevent the publication of the program, as well as whether the defendants were aware of the contract between Cleary and the first defendant, whether they had constructive knowledge of the contract, and whether they had the intention to induce a breach of contract. The court also needed to consider whether the injunction was necessary to prevent irreparable harm to Cleary.

The court found that the injunction should continue, as the publication of the program would cause irreparable harm to Cleary. The court also found that the defendants were aware of the contract between Cleary and the first defendant, and had constructive knowledge of the contract. The court held that the defendants had the intention to induce a breach of contract, and that the injunction was necessary to prevent irreparable harm to Cleary. The court granted the injunction and awarded Cleary damages for the breach of contract and inducing breach of contract.

The court ordered that the injunction continue, and that the defendants pay Cleary damages for the breach of contract and inducing breach of contract. The court also ordered that the defendants pay Cleary's costs of the proceeding. The court held that the injunction was necessary to prevent irreparable harm to Cleary, and that the defendants were aware of the contract and had the intention to induce a breach of contract.

Orders