Court of Appeal
New South Wales
Case Title: Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd Medium Neutral Citation: [2011] NSWCA 409 Hearing Date(s): 1 September 2011 Decision Date: 22 December 2011 Jurisdiction: Before: Campbell JA at [1]
Young JA at [39]
Meagher JA at [41]Decision: (1) Grant leave to appeal and cross-appeal.
(2) Appeal dismissed.
(3) Cross-appeal allowed.
(4) Set aside Order 4 made by Ball J on 29 September 2010.
(5) Order that the appellants pay the respondents' costs of the appeal and of the cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: CONTRACT - interpretation - effect of entry into deed of release on operation of employment agreement - whether employee entitled to terminate by giving three months' notice - whether restraint of trade clause continued to apply - distinction between termination of employment relationship and termination of employment contract
EMPLOYMENT- whether restraint of trade clauses reasonable and enforceable
REMEDIES - injunctions to enforce covenants in restraint of trade - whether "springboard" doctrine provides basis for injunction beyond period of contractual restraint - basis for injunctive relief against company not bound by covenants
APPEAL - practice and procedure - whether leave to appeal required - interpretation of s 101(2)(r)(ii) Supreme Court Act - whether should exercise discretion to grant leave - considerations - whether proceedings moot - whether any question of principle - costs incurred in proceedings belowLegislation Cited: Judiciary Act 1903 (Cth)
Restraints of Trade Act 1976
Supreme Court Act 1970Cases Cited: AMACSU v Ergon Energy Corporation Ltd [2005] QCA 351
Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288
Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 353
Arthur Murray Dance Studios of Cleveland Inc v Witter (1952) 105 NE 2d 685
Attorney-General v Observer Ltd [No. 2] [1990] 1 AC 109
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Regional Wholesalers v Stafford [2007] NSWSC 572; (2007) ATPR 42-168
Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114
Bonan v Hadgkiss [2007] FCAFC 113; (2007) 160 FCR 29
British Franco Electric Pty Ltd v Dowling Plastics Pty Ltd [1981] 1 NSWLR 448
Buckley v Tutty (1971) 125 CLR 353
Built Interiors Pty Ltd v Three Dinosaurs Pty Ltd [2003] NSWCA 290
Byrne & Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLR…
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- Case
- [2011] NSWCA 409
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the deed of release extinguished Mr Jardin's right to terminate his employment by giving three months' notice, and consequently, whether the restraint of trade clause remained operative. The court was also required to consider the enforceability of the restraint of trade clauses themselves, and whether injunctive relief could be granted against a company not directly bound by those covenants, potentially under the "springboard" doctrine, and whether such relief could extend beyond the contractual period of restraint. Furthermore, the court addressed procedural matters concerning the grant of leave to appeal and cross-appeal.
The Court of Appeal determined that the deed of release did not operate to terminate the employment contract itself, but rather modified the terms of the employment relationship. The court found that the restraint of trade clause remained enforceable, distinguishing between the termination of the employment relationship and the termination of the employment contract. The court also considered the reasonableness of the restraint of trade clauses and the basis for injunctive relief.
The Court of Appeal granted leave to appeal and cross-appeal. However, the appeal brought by Mr Jardin was dismissed, while the cross-appeal by Metcash Ltd was allowed. Consequently, an earlier order made by Ball J was set aside, and Mr Jardin was ordered to pay Metcash Ltd's costs of both the appeal and the cross-appeal.
Orders
Orders of the court
(1) Grant leave to appeal and cross-appeal.
(2) Appeal dismissed.
(3) Cross-appeal allowed.
(4) Set aside Order 4 made by Ball J on 29 September 2010.
(5) Order that the appellants pay the respondents' costs of the appeal and of the cross-appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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