Snow Factories SA v Bucceri - [2005] QSC 174

SUPREME COURT OF QUEENSLAND

CITATION:

Snow Factories SA & Anor v Bucceri & Ors [2005] QSC 174

PARTIES:

SNOW FACTORIES SA (INCORPORATED IN BELGIUM)
(first applicant)
and
SNOW FACTORIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 104 643 209
(second applicant)
v
ALFIO BUCCERI
(first respondent)
and
BUCCERI CONSULTING PTY LTD ACN 091 427 100
(second respondent)
and
HYDRO-TURBINE DEVELOPMENTS PTY LTD
ACN 107 964 965
(third respondent)

FILE NO:

BS3698 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

5 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2005

JUDGE:

Wilson J

ORDER:

Dismiss the application

CATCHWORDS:

TRADE AND COMMERCE – ENFORCEMENT AND REMEDIES – INJUNCTIONS – INTERLOCUTORY AND “INTERIM” INJUNCTIONS – GENERALLY – restraint of trade – construction of agreement – validity, reasonableness and enforceability of restraint clause – whether serious question to be tried

TRADE AND COMMERCE – ENFORCEMENT AND REMEDIES – INJUNCTIONS – INTERLOCUTORY AND “INTERIM” INJUNCTIONS – BALANCE OF CONVENIENCE – restraint of trade – where goodwill in the applicants’ business and livelihood of respondents at stake – whether undertaking adequate security – where respondents undertake to keep full accounting records – complexity of proceeding and timing of trial dates

Geraghty v Minter (1979) 142 CLR 177, applied

COUNSEL:

PL O’Shea SC and DG Clothier for the first and second applicants
RG Bain QC and JW Peden for the first, second and third respondents

SOLICITORS:

Freehills for the first and second applicants
Russell and Company for the first, second and third respondents

Wilson J: In this proceeding the applicants claim permanent injunctions to restrain breach of a restraint of trade covenant. The present application is for an interlocutory injunction.

The first applicant is a foreign company and the second applicant is a company in liquidation. In support of their undertaking as to damages they offer a bank guarantee in the sum of $200,000.00.

It is not disputed that the first respondent either personally or through the second and third respondents has engaged in and proposes, unless enjoined, to engage in conduct which constitutes breach of the relevant obligation. The respondents offer to keep full accounting records if the injunction is refused.

The first respondent (“Mr Bucceri”) is an inventor of snow making and related technologies. He has a worldwide reputation. Before May 2003, he and Select Contracts Ltd (“Select”) owned a number of companies which carried on business developing and commercially exploiting those technologies throughout the world. Select is a company based in Dubai and controlled by Ms Fiona Sutton.

The principal companies involved in the business were Bucceri Technologies Pty Ltd (a research and development company) and the second respondent. Mr Bucceri and Select owned 30% and 70% of Bucceri Technologies Pty Ltd respectively. Mr Bucceri owned 100% of the second respondent. These and other associated companies owned significant intellectual property including about 30 worldwide patents.

Before May 2003 MKM Commercial Services Co (“MKM”) was an indirect funder of the business. It is controlled by Sheikh Mana Bin Khalifa al…

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 Snow Factories SA v Bucceri

Details

AGLC: Snow Factories SA v Bucceri [2005] QSC 174
Case: [2005] QSC 174
Decision Date: 5 July 2005

CaseChat Overview and Summary

Snow Factories SA sought an interlocutory injunction against Bucceri to prevent him from engaging in activities that would breach a non-compete clause in an agreement. The matter was heard in the Supreme Court of Queensland. The court had to determine whether the restraint of trade clause was valid, reasonable, and enforceable, and whether a serious question to be tried existed. Additionally, the court considered the balance of convenience, given the impact on the goodwill of Snow Factories SA and the livelihood of Bucceri, as well as the adequacy of security provided by Bucceri.

The court found that the restraint of trade clause was ambiguous and, therefore, not enforceable. It also held that the balance of convenience favoured Bucceri, given the potential impact on his livelihood and the complexity of the proceeding. The court noted that Bucceri had provided an undertaking to keep full accounting records, which addressed some of the concerns regarding the balance of convenience. Ultimately, the court concluded that a serious question to be tried existed, and the application for an interlocutory injunction was dismissed.

The court emphasised the need for clear and unambiguous terms in restraint of trade clauses to ensure their enforceability. It also highlighted the importance of considering the balance of convenience in interlocutory injunction applications, particularly when the livelihood of an individual is at stake. The court's decision underscored the importance of providing adequate security and undertakings in interlocutory injunction applications to address the concerns of both parties.

Orders

Orders of the court

Dismiss the application

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Snow Factories SA & Anor v Bucceri & Ors [2005] QSC 174
PARTIES:	SNOW FACTORIES SA (INCORPORATED IN BELGIUM) (first applicant) and SNOW FACTORIES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 104 643 209 (second applicant) v ALFIO BUCCERI (first respondent) and BUCCERI CONSULTING PTY LTD ACN 091 427 100 (second respondent) and HYDRO-TURBINE DEVELOPMENTS PTY LTD ACN 107 964 965 (third respondent)
FILE NO:	BS3698 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	5 July 2005
DELIVERED AT:	Brisbane
HEARING DATE:	26 June 2005
JUDGE:	Wilson J
ORDER:	Dismiss the application
CATCHWORDS:	TRADE AND COMMERCE – ENFORCEMENT AND REMEDIES – INJUNCTIONS – INTERLOCUTORY AND “INTERIM” INJUNCTIONS – GENERALLY – restraint of trade – construction of agreement – validity, reasonableness and enforceability of restraint clause – whether serious question to be tried TRADE AND COMMERCE – ENFORCEMENT AND REMEDIES – INJUNCTIONS – INTERLOCUTORY AND “INTERIM” INJUNCTIONS – BALANCE OF CONVENIENCE – restraint of trade – where goodwill in the applicants’ business and livelihood of respondents at stake – whether undertaking adequate security – where respondents undertake to keep full accounting records – complexity of proceeding and timing of trial dates Geraghty v Minter (1979) 142 CLR 177, applied
COUNSEL:	PL O’Shea SC and DG Clothier for the first and second applicants RG Bain QC and JW Peden for the first, second and third respondents
SOLICITORS:	Freehills for the first and second applicants Russell and Company for the first, second and third respondents