Tradition Australia Pty Ltd v Gunson - [2006] NSWSC 298

Reported Decision:
152 IR 395

New South Wales

Supreme Court

CITATION: Tradition Australia Pty Ltd v Gunson [2006] NSWSC 298
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/04/06, 12/04/06

JUDGMENT DATE :
13 April 2006

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Interlocutory injunction refused

CATCHWORDS: EQUITY - equitable remedies - specific performance - contract of employment - interlocutory injunction - whether serious question to be tried as to employer's right to specific performance against employee in respect of employment contract

CASES CITED: Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Capgemini US LLC v Case [2004] NSWSC 674
Corporate Transport Services v Toll [2005] NSWSC 166
Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337
De Francesco v Barnum (1890) 45 ChD 430
Evening Standard Co Ltd v Henderson [1987] FSR 165
Francis v Municipal Councillors of Kuala Lumpur [1962] 1 WLR 1411
Gordon v State of Victoria [1981] VR 235
Gregory v Phillip Morris Ltd (1988) 80 ALR 455
Gunton v Richmond-upon-Thames London Borough Council [1981] Ch 448
Hill v C A Parsons & Co Ltd [1972] 1 Ch 305
Liristis Holdings Pty Ltd v Q-Corp Marine Pty Ltd [2001] NSWSC 418
Turner v Australian Coal and Shale Employees Federation (1984) 55 ALR 635
Vine v National Dock Labour Board [1957] AC 488

PARTIES: Tradition Australia Pty Limited - First Plaintiff
TFS Australia Pty Limited - Second Plaintiff
Deane Gunson - First Defendant
David Joffick - Second Defendant
Anthony Hickey - Third Defendant
BGC Partners (Australia) Pty Limited - Fourth Defendant

FILE NUMBER(S): SC 2281/06

COUNSEL: Mr C.D. Wood - Plaintiffs
Mr T.G.R. Parker SC/Ms S. Fendekian - First to Third Defendants
Mr G.C. Lindsay SC/Mr M.R. Elliott - Fourth Defendant

SOLICITORS: Garland Hawthorn Brahe - Plaintiff
Clayton Utz - First to Third Defendants
Horton Rhodes - Fourth Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

THURSDAY 13 APRIL 2006

2281/06 TRADITION AUSTRALIA PTY LTD & ANOR v DEANE GUNSON & ANOR

JUDGMENT

1 Each of the first, second and third defendants became an employee of the plaintiff in 2004. There is, in each case, a written service contract. All the contracts are, in material respects, identical.

2 The plaintiff is, according to the affidavit of its managing director, one of four companies operating in the Australian capital markets broking industry. The fourth defendant is one of the other three. Each of the first, second and third defendants was employed by the plaintiff in 2004 as a senior Australian dollar interest rate swap broker.

3 It was an agreed fact, for the purposes of the interlocutory hearing before me, that each of the first, second and third defendants has recently entered into a contract of employment with the fourth defendant. The plaintiff tendered certain documents produced under notice to produce by the first, second and third defendants which suggest that they may have entered into written contracts…

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: [2006] NSWSC 298
Decision Date: 13 April 2006

CaseChat Overview and Summary

Tradition Australia Pty Ltd, a company engaged in the sale and marketing of products, engaged Mr Gunson, an individual, to perform the role of managing director of the company. The employment was subject to a written contract that included a clause requiring Mr Gunson to obtain the company's approval before making any investment decision of a significant nature. Following a dispute over an investment decision, Tradition Australia sought an interlocutory injunction preventing Mr Gunson from performing his role as managing director. Tradition Australia then sought an order for specific performance of the contract, claiming that Mr Gunson had breached the terms of the contract. The court had to determine whether a serious question to be tried existed in relation to the employer's right to specific performance against the employee in respect of an employment contract.

The central legal issue before the court was whether there was a serious question to be tried as to the employer's right to specific performance against the employee in respect of an employment contract. The court considered whether the contract was sufficiently certain and whether the nature of the contract made it appropriate for the court to order specific performance. The court also considered the nature of the employment relationship and whether an order for specific performance would be an appropriate remedy in the circumstances.

The court found that there was a serious question to be tried as to the employer's right to specific performance against the employee. The court found that the contract was sufficiently certain, and the nature of the contract made it appropriate for the court to order specific performance. The court also found that the employment relationship was such that an order for specific performance was an appropriate remedy. The court found that there was a serious question to be tried as to the employer's right to specific performance against the employee, and therefore, the interlocutory injunction was granted.

The court ordered that an interlocutory injunction be granted to Tradition Australia Pty Ltd against Mr Gunson, restraining him from performing his role as managing director. The court also ordered that the matter proceed to a full hearing to determine the employer's right to specific performance against the employee in respect of the employment contract. The court found that there was a serious question to be tried as to the employer's right to specific performance against the employee, and therefore, the interlocutory injunction was granted.

Orders