Creak v Ford Motor Company of Australia Ltd

[2023] NSWCA 217

NSW Court of Appeal

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Interrogate

Catchwords

1. Commerce
2. › Restraint of trade
3. › Deed of settlement of litigation
4. › Whether restraint of trade doctrine applies to deeds of settlement
5. › Whether restraint void as unreasonable in interests of parties and public interest
6. › Evidentiary onus where restraint reached as genuine compromise
7. › Restraints of Trade Act 1976 (NSW), s 4(1)
1. Evidence
2. › Admissibility
3. › Evidence of prior judicial decisions
4. › Whether prohibition in s 91(1) of Evidence Act 1995 (NSW) extends to court orders
5. › Whether prior costs orders admissible to prove quantum of loss
6. › Evidence Act 1995 (NSW), s 91(1)
1. Contracts
2. › Breach of contract
3. › Remedies
4. › Injunctions
5. › Whether classification of contractual term as warranty preclusive of injunctive relief
6. › Whether negative covenant enforceable by injunction
7. › Whether mandatory injunctions appropriate to remedy breach of negative covenant
1. Practice and Procedure
2. › Abuse of process
3. › Whether party who failed to prove quantum at trial may institute fresh proceedings to quantify same claim

Quick Take

The restraint of trade doctrine applies to deeds of settlement containing restraints of trade, contrary to prior reliance on an exemption for settlement agreements; however, the doctrine applies with a shifted evidentiary onus where the settlement is genuine and parties were legally advised. Proof of quantum of loss by reference to prior costs orders requires independent evidence, as s 91(1) prohibits reliance on such orders.