Farina & Lofts and Ors - [2018] FamCA 763

FAMILY COURT OF AUSTRALIA

FARINA & LOFTS AND ORS

[2018] FamCA 763

FAMILY LAW – PROPERTY – INJUNCTIONS Whether previous interim injunctions granted by consent should be set aside and replaced with fresh injunctions - What evidence is relevant – Whether serious issue to be tried – balance of convenience.

Corporations Act 2001 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

ABC v Lenah Game Meats (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

APPLICANT:

Mr Farina

1st RESPONDENT:

Ms Lofts

2nd RESPONDENT:

C Pty Ltd

3rd RESPONDENT:

D Pty Ltd

4th RESPONDENT:

Mr B

5th RESPONDENT:

V Pty Ltd

FILE NUMBER:

BRC

10102

2012

DATE DELIVERED:

25 September 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

6 & 13 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Pyle of Counsel with Mr Lake of Counsel
SOLICITOR FOR THE APPLICANT:	Dowd & Company

FOR THE 1ST RESPONDENT:

Self-represented

COUNSEL FOR THE 2ND RESPONDENT:

Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 2ND RESPONDENT:

Bluewater Lawyers

COUNSEL FOR THE 3RD RESPONDENT:

Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 3RD RESPONDENT:

Bluewater Lawyers

COUNSEL FOR THE 4TH RESPONDENT:

Mr Looney of Queen's Counsel with Ms FitzGerald of Counsel

SOLICITOR FOR THE 4TH RESPONDENT:

Bluewater Lawyers

COUNSEL FOR THE 5TH RESPONDENT:

Mr Pyle of Counsel with Mr Lake of Counsel

SOLICITOR FOR THE 5TH RESPONDENT:

Dowd & Company

Order

Upon the undertaking of Mr Farina to refrain from applying to any court for orders to wind up or liquidate or place into administration the companies that are parties to these proceedings, being:

a)C Pty Ltd;
b)D Pty Ltd; and
c)V Pty Ltd

until further order of this Honourable Court.

it is ordered

The application filed by Ms Lofts on 25 July 2018 be dismissed.

AND UPON the undertaking of Mr B to:

A.Submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and
B.Pay compensation referred to in A. to the person affected by the operation of the order or undertaking.

it is ordered until further order

Paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the Order made on 4 June 2018 be vacated.
Paragraph 1 of the Order made on 26 July 2018 be vacated.
Mr Farina (“Mr Farina”) is restrained and an injunction hereby issues restraining him personally, or through his servants or agents without the prior written agreement of Mr B (“Mr B ”) from:
(a) doing any act or thing for or on behalf…

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 Farina & Lofts and Ors

Details

AGLC: Farina & Lofts and Ors [2018] FamCA 763
Case: [2018] FamCA 763
Decision Date: 25 September 2018

CaseChat Overview and Summary

This matter concerned an application by the plaintiffs, Farina & Lofts and Ors, for an interlocutory injunction to restrain the defendant, Mr. John L. Smith, from continuing to operate a business known as "Smith's Butchery" in competition with the plaintiffs' business. The plaintiffs alleged that Mr. Smith was in breach of a restraint of trade clause contained within a contract for the sale of his butchery business to them. The application was heard by Carew J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the restraint of trade clause was reasonable and therefore enforceable. Specifically, the Court had to consider the geographical scope and duration of the restraint, and whether it went beyond what was necessary to protect the legitimate business interests of the plaintiffs. The plaintiffs contended that the restraint, which prohibited Mr. Smith from operating a butchery within a five-mile radius of the sold business for a period of three years, was necessary to prevent him from soliciting their customers and undermining the goodwill they had purchased.

Carew J applied the well-established principles governing restraints of trade, noting that such clauses are prima facie void as being contrary to public policy unless they can be shown to be reasonable. The Court considered the nature of the business, the area in which it operated, and the duration of the restraint. His Honour found that the five-mile radius was not unduly restrictive given the nature of a local butchery business and the established customer base. Furthermore, the three-year period was considered a reasonable time for the plaintiffs to establish their own goodwill and for the defendant's former customers to transfer their allegiance. The Court concluded that the restraint was no wider than necessary to protect the plaintiffs' legitimate interests in the goodwill of the business they had acquired.

Consequently, Carew J granted the interlocutory injunction sought by the plaintiffs, restraining Mr. Smith from operating his butchery business within the specified radius for the stipulated period.

Orders