DXC Eclipse Pty Ltd v Wildsmith - [2022] NSWCA 224

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DXC Eclipse Pty Ltd v Wildsmith [2022] NSWCA 224
Hearing dates: 31 October 2022
Date of orders: 3 November 2022
Decision date: 03 November 2022
Before: Macfarlan JA
Decision:
Order that DXC Eclipse’s amended notice of motion be dismissed with costs.

Catchwords:
APPEAL – appellant sought interim relief pending appeal – appeal arguable and balance of convenience not strongly favouring either side – respondents’ success in proceedings at first instance decisive factor

Cases Cited:
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
DXC Eclipse Pty Ltd v Wildsmith [2022] NSWSC 512
DXC Eclipse Pty Ltd v Wildsmith (No 2) [2022] NSWSC 1330
DXC Eclipse Pty Ltd v Wildsmith (No 4) [2022] NSWSC 1452

Category: Procedural rulings
Parties: DXC Eclipse Pty Ltd (Applicant)
Martin Wildsmith (First Respondent)
On-Key Consulting Pty Ltd (Second Respondent)
Representation:
Counsel:
C Cochrane SC/ A Spies (Applicant)
J Knackstredt (Respondent)
Solicitors:
Bird & Bird (Applicant)
Maurice Blackburn Lawyers (Respondent)

File Number(s): 2022/314994
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 1330

Date of Decision:

30 September 2022

Before:

Parker J

File Number(s):

2022/91079

JUDGMENT

This is an application by DXC Eclipse Pty Limited (“DXC Eclipse”) an applicant for leave to appeal, for injunctive relief to preserve the status quo pending determination of its proposed appeal from a decision of Parker J sitting in the Equity Division of 30 September 2022 (DXC Eclipse Pty Ltd v Wildsmith (No. 2) [2022] NSWSC 1330). In case the Court considers that it in fact has a right of appeal, DXC Eclipse proposes also to file a notice of appeal. The application for leave to appeal and the appeal are to be heard concurrently by this Court in February 2023.
The proceedings in the Equity Division related to DXC Eclipse’s acquisition of ownership of a business and its attempt to enforce restraint covenants in the purchase contract against two of the vendors, who are the present respondents. The business involves the supply and installation of business software solutions using software produced by Microsoft. On 4 May 2022, Slattery J granted interlocutory relief to preserve the status quo pending the final hearing in the Equity Division ([2022] NSWSC 512). That hearing took place in August 2022 and resulted in Parker J’s decision of 30 September 2022 rejecting DXC Eclipse’s claim ([2022] NSWSC 1330).
By a further judgment of 24 October 2022, Parker J declined to make an order having the effect of extending the interlocutory relief pending DXC Eclipse’s appeal to this Court ([2022] NSWSC 1452).
In that judgment, Parker J described the prejudice that DXC Eclipse claimed it would suffer as follows:

“4 The viability of the appeal has not been disputed. The prejudice which the plaintiff would suffer arises in the following way. The defendants are seeking to launch a business which will compete with the plaintiff’s…

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.

Continue reading DXC Eclipse Pty Ltd v Wildsmith

Details

AGLC: DXC Eclipse Pty Ltd v Wildsmith [2022] NSWCA 224
Case: [2022] NSWCA 224
Decision Date: 03 November 2022

CaseChat Overview and Summary

DXC Eclipse Pty Ltd (the appellant) sought interim relief pending an appeal against a decision of the primary judge. The dispute concerned the appellant's application for interlocutory orders. The matter came before Macfarlan JA of the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the appellant had established a sufficient basis to be granted interim relief pending the determination of its substantive appeal. This involved assessing whether the appeal was arguable and considering the balance of convenience between the parties.

Macfarlan JA found that while the appeal was arguable, the balance of convenience did not strongly favour either party. Crucially, the respondents had been successful in the proceedings at first instance, and this success was considered a decisive factor in the assessment of the balance of convenience. Consequently, the Court of Appeal determined that it was not appropriate to grant the interim relief sought by the appellant.

The Court of Appeal ordered that DXC Eclipse's amended notice of motion be dismissed with costs.

Orders

Orders of the court

Order that DXC Eclipse’s amended notice of motion be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DXC Eclipse Pty Ltd v Wildsmith [2022] NSWCA 224
Hearing dates:	31 October 2022
Date of orders:	3 November 2022
Decision date:	03 November 2022
Before:	Macfarlan JA
Decision:	Order that DXC Eclipse’s amended notice of motion be dismissed with costs.
Catchwords:	APPEAL – appellant sought interim relief pending appeal – appeal arguable and balance of convenience not strongly favouring either side – respondents’ success in proceedings at first instance decisive factor
Cases Cited:	Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 DXC Eclipse Pty Ltd v Wildsmith [2022] NSWSC 512 DXC Eclipse Pty Ltd v Wildsmith (No 2) [2022] NSWSC 1330 DXC Eclipse Pty Ltd v Wildsmith (No 4) [2022] NSWSC 1452
Category:	Procedural rulings
Parties:	DXC Eclipse Pty Ltd (Applicant) Martin Wildsmith (First Respondent) On-Key Consulting Pty Ltd (Second Respondent)
Representation:	Counsel: C Cochrane SC/ A Spies (Applicant) J Knackstredt (Respondent) Solicitors: Bird & Bird (Applicant) Maurice Blackburn Lawyers (Respondent)
File Number(s):	2022/314994
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Division Citation: [2022] NSWSC 1330 Date of Decision: 30 September 2022 Before: Parker J File Number(s): 2022/91079