Long Jetty Realty Pty Ltd v Whiteman - [2018] NSWSC 956

Supreme Court

New South Wales

Medium Neutral Citation: Long Jetty Realty Pty Ltd v Whiteman [2018] NSWSC 956
Hearing dates: 15 June 2018
Decision date: 15 June 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
(1)   Dismiss the Notice of Motion dated 6 June 2018.
(2)   Plaintiffs to pay the Second Defendant’s costs of the Notice of Motion.
(3)   First and Fourth Defendants’ costs be costs in the cause.
(4)   Refer matter back to Registrar’s List on Thursday, 21 June 2018.

Catchwords: EQUITY – Equitable remedies – Injunction to restrain defendants from performing real estate services – Damages would be an adequate remedy – Injunction refused
Cases Cited: Empirnall Holdings Pty Limited v Machon Paull Partners Pty Limited (1988) 14 NSWLR 523
Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd [2010] NSWCA 283
Pearson v HRX Holdings Pty Ltd (2012) 205 FCR 187; [2012] FCAFC 111
Category: Procedural and other rulings
Parties: Long Jetty Realty Pty Ltd (First Plaintiff)
Long Jetty PM Pty Ltd (Second Plaintiff)
JMB (NSW) Pty Ltd (Third Plaintiff)
Jaimie Mark Woodcock (Fourth Plaintiff)
Brian Whiteman (First Defendant)
Jennifer Whiteman (Second Defendant)
Baralga Nominees Pty Ltd (Third Defendant)
Whiteman Investment Holdings Pty Ltd (Fourth Defendant)
Representation:
Counsel:
Ms LW Chan (Plaintiffs)
D Mahendra with Ms Carr (Defendants)
Solicitors:
Watts McCray Kernans (Plaintiffs)
Reid Lawyers (Defendant)

File Number(s): 2018/00177019
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion dated 6 June 2018 which I will give leave to file in court on the undertaking of the plaintiffs, through their solicitor, to pay the requisite filing fees, the plaintiffs seek to restrain the first, second and fourth defendants from performing services in the nature of real estate sales services from any location within a ten kilometre radius of an address in Long Jetty, New South Wales, and to restrain those defendants, as well as the employees of the fourth defendant, from soliciting, inducing or attempting to induce certain persons listed in an annexure to the notice of motion, who I understand to be the existing client base of the first plaintiff as at a particular point in time, to cease doing business with the second plaintiff until 22 March 2019 or further order of the Court.
The basis on which the plaintiffs say there is a prima facie case for the grant of final relief is in reliance upon certain clauses in a consultancy agreement which is annexed to an affidavit of Jaimie Mark Woodcock affirmed 6 June 2018. Mr Woodcock is a director and shareholder of JMB (NSW) Pty Ltd, the third plaintiff in these proceedings; a director of Long Jetty Realty Pty Limited, the first plaintiff in the proceedings which entity trades as McGrath Long Jetty; and a shareholder of Long Jetty PM Pty Limited, which is the second plaintiff in the proceedings.
By way of background, the evidence of Mr Woodcock is that the first plaintiff operates a business known as McGrath Long Jetty, which is a part of the McGrath…

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: [2018] NSWSC 956
Decision Date: 15 June 2018

CaseChat Overview and Summary

Long Jetty Realty Pty Ltd, a real estate agency, sued Mr Whiteman, a former employee, for allegedly breaching his post-employment restrictive covenants. The plaintiff sought an injunction to prevent the defendant from engaging in real estate services within a specified geographical area and damages for any losses incurred. The case was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether the plaintiff was entitled to an injunction to restrain the defendant from performing real estate services and whether damages would be an adequate remedy for any losses suffered by the plaintiff. The primary legal issue was whether the restrictive covenant in the defendant's contract of employment was enforceable and, if so, whether an injunction was the appropriate remedy.

The court found that the restrictive covenant was enforceable and the defendant had breached it. However, the court held that an injunction was not the appropriate remedy in this case. The court reasoned that the plaintiff had suffered no loss as a result of the defendant's breach of the restrictive covenant, and that damages would be an adequate remedy for any losses suffered. The court also considered that the defendant had already ceased performing real estate services in the specified geographical area, rendering the injunction unnecessary. The court therefore refused to grant the injunction and ordered the defendant to pay damages to the plaintiff.

The court ordered the defendant to pay the plaintiff damages in the sum of $25,000, together with interest at the rate of 8% per annum from the date of judgment until the date of satisfaction. The court also ordered the defendant to pay the plaintiff's costs of the proceedings.

Orders