COMMERCE — restraint of trade — enforcement and remedies — interim injunction — whether interim injunction should be ordered against company in competition with plaintiff — whether balance of convenience favours granting interlocutory relief
Quick Take
1Where a party bound by a restraint of trade gives an undertaking to the Court in terms substantially reflecting the restraint, the balance of convenience may weigh against granting a separate interlocutory injunction against a related corporate entity alleged to be that party's alter ego, because breach of the undertaking through the corporate vehicle would itself constitute contempt.
2Third parties who have notice of an undertaking given to the Court and who procure its contravention are directly liable for contempt as obstructing the course of justice, applying the principles stated in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 and Zhu v Treasurer of New South Wales (2004) 218 CLR 530, which extend equally to undertakings as to court orders.
3On an interlocutory application, it is not appropriate to assess the balance of convenience on the assumption that a party will breach an undertaking given to the Court, even where there is a reasonably strong prima facie case that the party has been prepared to breach contractual obligations.
