Creak v Ford Motor Company of Australia Ltd

The appeal concerned a dispute between Ford Motor Company of Australia Ltd (the respondent) and Mr Creak (the appellant) arising from a deed of settlement. The deed resolved earlier litigation where Ford alleged that Mr Creak and a company he controlled had engaged in misleading or deceptive conduct, passing off, and unconscionable conduct by affixing materials to Ford vehicles, a process termed "raptorisation". Mr Creak had undertaken in the deed that neither he nor any "Related Entities" would engage in such proscribed conduct. The dispute in the appeal arose when Mr Creak's company subsequently engaged in conduct that allegedly breached this undertaking.

The Court of Appeal was required to determine whether the restraint of trade doctrine applied to the undertaking given in the deed of settlement, and if so, whether the undertaking was void. It also had to consider whether mandatory and prohibitive injunctive relief was appropriate in the circumstances. Further, the court examined the admissibility of evidence of prior court orders to prove the quantum of the respondent's loss, and whether the classification of the undertaking as a warranty precluded injunctive relief.

The court held that the undertaking was not void as being in restraint of trade, as it was part of a commercial settlement of litigation. The classification of the term as an undertaking or warranty was found to be irrelevant to the availability of injunctive relief. However, the court ruled that evidence of prior court orders was inadmissible to prove the quantum of loss under section 91(1) of the *Evidence Act 1995* (NSW).

The appeal was allowed in part. The court set aside certain orders made by the court below and directed the entry of judgment for the respondent against the appellant in the sum of $100. The appeal was otherwise dismissed, and the parties were ordered to file written submissions regarding costs and interest.