Rich v BDO Kendalls

Case [2007] QCA 147

SUPREME COURT OF QUEENSLAND

CITATION:

Rich v BDO Kendalls [2007] QCA 147

PARTIES:

KENNETH ROLAND RICH
(plaintiff/respondent/appellant)
v
BDO KENDALLS (A FIRM)
(first defendant/applicant/respondent)
ANTHONY CRAIG SCHIFFMANN
(second defendant/not a party to the appeal)

FILE NO/S:

Appeal No 9301 of 2006
SC No 6034 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2007

JUDGES:

Williams JA, Wilson and Douglas JJ
Separate reasons for judgement of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – FUNCTIONS OF APPELLATE COURT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE–  MATTERS OF PROCEDURE – INTERLOCUTORY ORDERS – where appellant was a former equity partner of the respondent – where appellant commenced working for another company after retirement from the respondent – where such work was in alleged contravention of a restraint of trade clause contained in the partnership agreement – where learned Chief Justice in reliance on restraint clause granted limited interlocutory relief in respondent's favour – whether learned Chief Justice erred in exercising his discretion

Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288, considered
Antaios CompaniaNavieraSA vSalen Rederierna AB [1985] AC 191, considered
Australian Broadcasting Corporation v O’Neill (2006) 80 ALJR 1672; [2006] HCA 46 at [65], applied
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, applied
Bellmere Park P/L as trustee for the Bellmere Park
Castlemaine Tooheys Ltd & Ors v The State of South Australia (1986) 1986 161 CLR 148, applied
Development Trust v Cameron Samuel Benson (as personal representative of the Estate of Eric Gordon Benson)[2007] QCA 102; Appeal Nos 949 and 951 of 2007, 30 March 2007, cited
Bridge v Deacons (a firm) [1984] AC 705, considered
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, cited
D.T.R. Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, cited
Maggbury Pty Ltd & Anor v Hafele Australia Pty Ltd (2001) 210 CLR 181, considered
Peters (WA) Limited v Petersville Ltd & Anor (2001) 205 CLR 126, cited
Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 436, cited
The Council of the Upper Hunter County District v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429, considered

COUNSEL:

A J H Morris QC, with C Jennings, for the appellant
H B Fraser QC, with S S Monks for the respondent

SOLICITORS:

Templeton Smith Lawyers & Consultants for the appellant
McInnes Wilson for the respondent

  1. WILLIAMS JA: The circumstances giving rise to this appeal are fully set out in the reasons for judgment of…

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AGLC
Rich v BDO Kendalls [2007] QCA 147
Case
[2007] QCA 147
Decision Date

CaseChat Overview and Summary

The case of Rich v BDO Kendalls involved a dispute between a former equity partner of the respondent, Mr Rich, and the respondent, BDO Kendalls, a firm of accountants. Following his retirement from the firm, Mr Rich commenced working for another company, which the respondent claimed was in breach of a restraint of trade clause contained in his partnership agreement. The respondent sought interlocutory relief to prevent Mr Rich from working for a competitor, and the Chief Justice granted a limited order in their favour. Mr Rich appealed the decision, arguing that the Chief Justice had erred in exercising his discretion.

The legal issues before the court were whether the Chief Justice had correctly exercised his discretion in granting interlocutory relief and whether the restraint of trade clause in the partnership agreement was enforceable. The court needed to determine the appropriate standard of review for the Chief Justice's decision and whether the restraint of trade clause was valid and enforceable under Australian law.

The court held that the appropriate standard of review for interlocutory orders was whether the decision was so unreasonable as to be unjust. The court found that the Chief Justice's decision was not unreasonable and that the restraint of trade clause was valid and enforceable. The court noted that the clause was reasonable in its scope and duration and that it was necessary to protect the respondent's legitimate business interests. The court also held that the respondent had demonstrated a sufficient likelihood of success in the substantive proceedings to warrant the grant of interlocutory relief.

The appeal was dismissed with costs. The court found that the Chief Justice had not erred in exercising his discretion and that the interlocutory order was appropriate in the circumstances. The restraint of trade clause was held to be valid and enforceable, and the respondent was entitled to seek further relief in the substantive proceedings. The court emphasised the importance of protecting legitimate business interests and the need for restraint of trade clauses to be reasonable in their scope and duration.

Orders

Orders of the court

Appeal 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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