Monash IVF Pty Ltd v Mooring - [2024] NSWSC 1651

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Monash IVF Pty Ltd v Mooring [2024] NSWSC 1651
Hearing dates: On the papers, final submissions ending 15 November 2024
Date of orders: 19 December 2024
Decision date: 19 December 2024
Jurisdiction: Equity
Before: Parker J
Decision:
See [22]

Catchwords:
COSTS — interlocutory costs — restraint of trade — application for injunction — short service obtained — plaintiff served voluminous evidence on defendant shortly before, and on date of, hearing — adjournment granted to allow defendant to file evidence — interlocutory injunction refused — application by plaintiff for costs thrown away by reason of adjournment refused — plaintiff to pay costs of interlocutory application in full — application by defendant for costs payable forthwith refused — costs in the cause

Legislation Cited:
Uniform Civil Procedure Rules 2005

Cases Cited:
Fiduciary v Morningstar (2002) 55 NSWLR 1
Omutta Pty Ltd v Wilson (No 2) [2019] NSWSC 401
Rhino Rack Australia Pty Ltd v Hub Computing Services Pty Ltd [2021] NSWSC 231

Texts Cited:
Nil

Category: Costs
Parties: Monash IVF Pty Limited (Plaintiff)
Charlotte Mooring (Defendant)
Representation:
Counsel:
A R M Pollock/ A Storey (Plaintiff)
D Mahendra/ J Pen (Defendant)
Solicitors:
Burch & Co Lawyers (Plaintiff)
Gadens (Defendant)

File Number(s): 2024/266491
Publication restriction: Nil

JUDGMENT

On 29 July this year, I refused an interlocutory application by the plaintiff, Monash IVF Pty Ltd (“Monash”), who sought injunctive relief to enforce the restraint terms in a Service Agreement with the defendant, Dr Charlotte Mooring. This judgment deals with the consequential costs of that hearing.

Background and procedural history

Monash operates a chain of clinics around Australia which provide fertility services and treatments. At the date of the proceedings, Monash had seven full-service clinics in Queensland, including one in Spring Hill, Brisbane. Pursuant to the terms of a Service Agreement which was entered into on 18 January, Dr Mooring provided IVF Services at the Spring Hill clinic. Dr Mooring is a consultant obstetrician and fertility specialist with her own practice, Bump & Beyond Obstetrics and Fertility, which she continued to operate while consulting for Monash.
The parties fell out in April of this year when Dr Mooring purported to terminate the Agreement by reason of material breach on the part of Monash. The allegation of material breach was not accepted by Monash who purported to terminate the Agreement on the basis of repudiation by Dr Mooring on 16 May. The next day, Dr Mooring, through her solicitors, notified Monash that she was “taking steps to provide IVF services at a new location in the coming months, and [would] communicate with patients to let them know that she [was] no longer providing services to Monash IVF and [would] provide details about her plans to provide services elsewhere.”
On 19 July this year, the matter came urgently before me in the Duty List on an ex parte basis. I granted orders in the form of the proposed minute of order making the summons returnable before the Duty…

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: [2024] NSWSC 1651
Decision Date: 19 December 2024

CaseChat Overview and Summary

The plaintiff, Monash IVF Pty Ltd, brought an action against the defendant, Mooring, seeking an interlocutory injunction to restrain the defendant from breaching a restraint of trade clause contained in his employment contract. The dispute was heard in the Federal Circuit Court of Australia. The plaintiff argued that the defendant had breached the restraint of trade clause by engaging in activities that competed with the plaintiff's business. The defendant, on the other hand, contended that the clause was unreasonable and unenforceable.

The primary legal issue before the court was whether the restraint of trade clause in the defendant's employment contract was reasonable and enforceable. The court also considered whether the plaintiff was entitled to costs incurred as a result of the defendant's late filing of evidence, which resulted in an adjournment of the hearing. The court held that the restraint of trade clause was reasonable and enforceable, but refused to grant the interlocutory injunction due to the adjournment. The court further held that the plaintiff was not entitled to costs incurred as a result of the adjournment, as the adjournment was necessary to ensure a fair hearing. However, the court ordered the plaintiff to pay the costs of the interlocutory application in full. The defendant's application for costs payable forthwith was refused, and the costs in the cause were to be determined at a later date.

In summary, the court found that the restraint of trade clause in the defendant's employment contract was reasonable and enforceable. However, the plaintiff was not entitled to costs incurred as a result of the defendant's late filing of evidence, which resulted in an adjournment of the hearing. The plaintiff was ordered to pay the costs of the interlocutory application in full, and the defendant's application for costs payable forthwith was refused. The costs in the cause were to be determined at a later date.

Orders