mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Geraghty v Minter [1979] HCA 42 ; (1979) 142 CLR 177
Outcome: cited
(v) The seller of the goodwill of a business or a person who relinquishes his or her interest in the goodwill of a business by retirement or sale to the continuing owners: cf Geraghty v Minter [1979] HCA 42 ; (1979) 142 CLR 177 at 193-194; is nonetheless entitled to set up a competing business: see generally Heydon, The Restraint of Trade Doctrine , Ch 8 (2 nd ed, 1999); unless a valid restraint protecting the goodwill of the business has been agreed. As Dixon CJ commented in Butt v Long [1953] HCA 76 ; (1953) 88 CLR 476 at 486: "The goodwill of a business is immune from the danger of the owner exercising his personal knowledge and skill to its detriment and if the purchaser is to take over such goodwill with all its advantages it must in his hands remain similarly immune. Without, therefore, a covenant on the part of the vendor against competition, a purchaser would not get what he is contracting to buy, nor could the vendor give what he is intending to sell. The covenant against competition is therefore reasonable if confined to the area within which it would in all probability enure to the injury of the purchaser."
Case: Butt v Long [1953] HCA 76 ; (1953) 88 CLR 476
Outcome: cited
(v) The seller of the goodwill of a business or a person who relinquishes his or her interest in the goodwill of a business by retirement or sale to the continuing owners: cf Geraghty v Minter [1979] HCA 42 ; (1979) 142 CLR 177 at 193-194; is nonetheless entitled to set up a competing business: see generally Heydon, The Restraint of Trade Doctrine , Ch 8 (2 nd ed, 1999); unless a valid restraint protecting the goodwill of the business has been agreed. As Dixon CJ commented in Butt v Long [1953] HCA 76 ; (1953) 88 CLR 476 at 486: "The goodwill of a business is immune from the danger of the owner exercising his personal knowledge and skill to its detriment and if the purchaser is to take over such goodwill with all its advantages it must in his hands remain similarly immune. Without, therefore, a covenant on the part of the vendor against competition, a purchaser would not get what he is contracting to buy, nor could the vendor give what he is intending to sell. The covenant against competition is therefore reasonable if confined to the area within which it would in all probability enure to the injury of the purchaser." 95 I am satisfied that the State-wide restraint is unreasonable given the nature and the manner of conduct of laundry hire businesses. While it is not necessary to show that a covenantee actually has carried on, or proposes to carry on, the business in every part of the area specified in the covenant, it nonetheless must be shown that the covenant against competition is confined to the area within which it would in all probability enure to the injury of the purchaser: Butt v Long at 486; Kennett v Crawford , at 203. In ascertaining that area regard may be had to such expansion of the business as might reasonably be contemplated: Lloyd's Ships , at 524.
Case: Inland Revenue Commissioners v Meuller &amp; Co's Margarine Ltd [1901] AC 217
Outcome: cited
(vi) The most recent elaboration of the legal nature of goodwill by the High Court was in Federal Commissioner of Taxation v Murry at [12] ff. It is unnecessary for present purposes to enlarge upon what was there said other than to note that one of the definitions endorsed by the joint judgment was that of Lord Macnaghten in Inland Revenue Commissioners v Meuller &amp; Co's Margarine Ltd [1901] AC 217 at 223-224 where it was said: "What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start. The goodwill of a business must emanate from a particular centre or source. However widely extended or diffused its influence may be, goodwill is worth nothing unless it has power of attraction sufficient to bring customers home to the source from which it emanates. Goodwill is composed of a variety of elements. It differs in its composition in different trades and in different businesses in the same trade."
Case: C &amp; S Constructions Pty Ltd v Dawson (1991) 13 ATPR 41-148
Outcome: cited
(viii) The principal interest protected by restraints on competition on the sale of goodwill is customer connection, the customers being existing or potential customers. The protection of that interest in a given case can contrive what is the acceptable area or scope of a restraint: cf Whitehall v Bradford [1952] 1 Ch 236 esp at 249-250 where a ten mile radius restraint on a retiring partner of a medical practice was unsuccessfully challenged, the evidence establishing that, though the patients on the periphery of that area were small in number they contributed about one-third of the total partnership income; see also Kennett v Crawford [1940] SASR 199; C &amp; S Constructions Pty Ltd v Dawson (1991) 13 ATPR 41-148 and Lloyd's Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505 at 524. Important in this regard for present purposes are observations of Viscount Maugham in the Privy Council in Connors Brothers Ltd v Connors [1940] 4 All ER 179 at 194 in the context of a covenant taken on the sale of a sardine business not to engage in any such business in Canada: "... the question of reasonableness being a matter of law for the court, it has never yet been supposed that it is necessary in relation to the trade of a large manufacturer or merchant to prove to the satisfaction of the court that the business which the covenant is designed to protect has been carried on in every part of the area mentioned in the covenant. In the cases in which the area has been the whole of England, or a substantial part of it, such as 100 miles or 150 miles from a named town, it has never been held that the covenantee was under an obligation to prove that the business has been carried on in all the towns and villages within the area. In the Nordenfelt case, no attempt was made to prove that all the governments of the world, or even of the civilised world, had ordered goods from the company, though the greater number no doubt had done so. A great deal no doubt depends on the nature of the business and the area in question. In a country of vast spaces, like the Dominion of Canada, it will always be possible, until the population of the country reaches a point now scarcely contemplated, to point to areas where there are only few settlers or inhabitants, and where, accordingly, few, if any, of the goods sold by the manufacturer have penetrated. If, for example, a restrictive covenant were limited to the province of Quebec, it would seldom be possible to prove that the goods were used in every part of that province. However, the goodwill of a business such as is now under consideration could not adequately be protected if the restrictive covenant had to be limited to the towns and villages where actual sales could be proved, whilst leaving the vendor free to establish a business, which would almost certainly be competitive , in all the adjoining places." (Emphasis added. Footnotes omitted.)
Case: Connors Brothers Ltd v Connors [1940] 4 All ER 179
Outcome: cited
(viii) The principal interest protected by restraints on competition on the sale of goodwill is customer connection, the customers being existing or potential customers. The protection of that interest in a given case can contrive what is the acceptable area or scope of a restraint: cf Whitehall v Bradford [1952] 1 Ch 236 esp at 249-250 where a ten mile radius restraint on a retiring partner of a medical practice was unsuccessfully challenged, the evidence establishing that, though the patients on the periphery of that area were small in number they contributed about one-third of the total partnership income; see also Kennett v Crawford [1940] SASR 199; C &amp; S Constructions Pty Ltd v Dawson (1991) 13 ATPR 41-148 and Lloyd's Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505 at 524. Important in this regard for present purposes are observations of Viscount Maugham in the Privy Council in Connors Brothers Ltd v Connors [1940] 4 All ER 179 at 194 in the context of a covenant taken on the sale of a sardine business not to engage in any such business in Canada: "... the question of reasonableness being a matter of law for the court, it has never yet been supposed that it is necessary in relation to the trade of a large manufacturer or merchant to prove to the satisfaction of the court that the business which the covenant is designed to protect has been carried on in every part of the area mentioned in the covenant. In the cases in which the area has been the whole of England, or a substantial part of it, such as 100 miles or 150 miles from a named town, it has never been held that the covenantee was under an obligation to prove that the business has been carried on in all the towns and villages within the area. In the Nordenfelt case, no attempt was made to prove that all the governments of the world, or even of the civilised world, had ordered goods from the company, though the greater number no doubt had done so. A great deal no doubt depends on the nature of the business and the area in question. In a country of vast spaces, like the Dominion of Canada, it will always be possible, until the population of the country reaches a point now scarcely contemplated, to point to areas where there are only few settlers or inhabitants, and where, accordingly, few, if any, of the goods sold by the manufacturer have penetrated. If, for example, a restrictive covenant were limited to the province of Quebec, it would seldom be possible to prove that the goods were used in every part of that province. However, the goodwill of a business such as is now under consideration could not adequately be protected if the restrictive covenant had to be limited to the towns and villages where actual sales could be proved, whilst leaving the vendor free to establish a business, which would almost certainly be competitive , in all the adjoining places." (Emphasis added. Footnotes omitted.)
Case: Carlton &amp; United Breweries Ltd v Tooth &amp; Co Ltd (1986) 7 IPR 581
Outcome: cited
(ix) Protection of customer connection equally can contrive what is the acceptable duration of a restraint, hence the emphasis in the cases on the period reasonably to be allowed (a) to give the covenantee the opportunity "of cementing an old connection and of profiting from an established reputation": Brown v Brown , 490; and to establish a relationship with the customers of the business Carlton &amp; United Breweries Ltd v Tooth &amp; Co Ltd (1986) 7 IPR 581 at 614; and (b) for severing the relationship between the covenantor and those who would patronize the business of the sale: IRAF Pty Ltd v Graham , at 218.
Case: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: cited
This provision does not readily yield up a meaning. The respondents sought to tender a letter from George Anthony's solicitor which commented (inter alia) upon an earlier draft of the dry cleaning restraint. This letter, it is contended, disclosed the common understanding which informed the intended meaning of cl 2.2. I am asked to infer that it so did because of the amendment made to the earlier draft. To that end the respondents rely upon observations of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24 ; (1982) 149 CLR 337 at 352-353 where his Honour accepted the possibility of receiving evidence of mutual intention amounting to concurrence as to the meaning to be given to a contractual provision. Here there is no such evidence of concurrence. I am asked to infer that such was the case. At the time, I indicated the difficulty involved in this and the respondents indicated they would supplement the record. This did not happen. Accordingly, I am not prepared to rely on the letter when construing the clause. 110 The clause on its face prohibits the provision of dry cleaning services "in competition with [Old Co]" subject to one limitation which requires the satisfaction of both of two conditions. The prohibition does not apply to dry cleaning services which, at the date of the agreement: (a) were carried out by the applicants or their related entities; and (b) were not carried out by the respondents or their related entities. 111 An evaluation of the reasonableness of the restraint requires first and foremost an answer to the question: What dry cleaning services were provided by Old Co at the date of the Heads of Agreement? It was in relation to the provision of those services that the general prohibition on competition (subject to the limitation) was, seemingly, intended to operate.
Case: News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563
Outcome: cited
I would note that an exclusionary provision of a contract, for present purposes, is one having the purpose of preventing, restricting or limiting supply or acquisition of services to or from particular persons or classes of person and the contract itself is between bodies corporate which, but for that provision, would be or be likely to be in competition in relation to the supply or acquisition of the services or goods to which the provision relates: s 4D and see News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45 ; (2003) 215 CLR 563. Unless other, not presently relevant, requirements are not complied with, or unless another provision of the Act (including a subsection of s 45 itself) makes s 45 inapplicable in the circumstances: see e.g. s 51(2) and s 88(1); s 45 declares such a provision to contravene the Act regardless of its actual effect on competition. That it so operates, notwithstanding the object of the TP Act is to enhance the welfare of Australians through (inter alia) the promotion of competition and fair trading: s 2; gives little guidance as to how, consistently with the Act's object, the s 87(3) discretion ought be informed.
Case: Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136
Outcome: referred to
Capital Steel submits that there is no case in which an order that costs be paid forthwith has been refused on the ground that the unsuccessful party may thereby lose a right of set off. Whether that be so or not, there is no doubt that the effect on a possible right of set off is a relevant matter, the precise weight to be placed on it is to be determined having regard to the circumstances of the case. In Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 the Full Court of this Court said (at 145 [37]): The applicants must pay the respondents' costs. We also think this an appropriate case for an order under O 62, r 3(2) that these costs be paid forthwith. The policy behind O 62, r 3 is that, in the ordinary course of litigation, costs awarded in interlocutory proceedings need not be paid until the conclusion of the proceedings when set-offs can be made in the light of the ultimate orders for costs. There is an access to justice aspect in this. Impecunious litigants who have a meritorious claim or defence should not be forced out of court because of inability to meet interlocutory costs orders. However, applications for leave to appeal in interlocutory matters of practice and procedure stand on a different footing. There is a strong public policy against the proliferation of such applications, for the reasons given by Jordan CJ and endorsed by the High Court in [ Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170]. The applicants in the present case having failed in this application, the respondents should not have to wait for a year or more before being paid. 26 In my opinion, weighing up the relevant considerations, I do not think an order that the costs be taxed and paid forthwith should be made. 27 I turn now to consider Capital Steel's application that there be an order that the costs be taxed on an indemnity basis.
Case: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: referred to
The principles by which a court proceeds in determining whether costs should be awarded on a basis other than a party and party basis are well known and I will not repeat them: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234 per Sheppard J; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151; NMFM Property Pty Ltd v Citibank Ltd (No 11) [2001] FCA 480 ; (2001) 109 FCR 77 (" NMFM "). Various circumstances have been identified in the cases as warranting a special order. It is trite to say that the discretion is a broad one, no two cases are alike, and the categories or circumstances in which a court will make a special order are not closed.
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: referred to
There is no doubt that I have the power to proceed in one or other of the ways I have identified. The power is contained in s 43(2) of the Federal Court of Australia Act 1976 (Cth): Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172. Some caution is to be exercised before splitting costs in accordance with the success of the parties on various disputed questions of fact and law: Cretazzo v Lombardi (1975) 13 SASR 4 at 12 per Jacobs J; Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 at 208 per Fisher J.
Case: Fiduciary Limited v Morning Star Research Pty Ltd [2002] NSWSC 432 ; (2002) 55 NSWLR 1
Outcome: referred to
Capital Steel referred to the decision of Barrett J in Fiduciary Limited v Morning Star Research Pty Ltd [2002] NSWSC 432 ; (2002) 55 NSWLR 1. In that case, Barrett J identified three categories of case in which the court might order that costs be paid forthwith under Pt 52A, r 9 of the Supreme Court Rules 1970 (NSW) namely, 1. where the decision on the application determines a separately identifiable matter or the completion of a discrete aspect; 2. where there has been unreasonable conduct on the part of the unsuccessful party; or 3. where there is likely to be a considerable lapse of time between the application and the final determination of the proceeding.
Case: His Eminence Metropolitan Petar Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142
Outcome: referred to
Orrcon referred to His Eminence Metropolitan Petar Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand v The Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 in support of its submission. However, the discussion in that case (at [16]-[32]) focused on the question of whether there was a general rule in circumstances where an applicant for an interlocutory injunction succeeds, and not where he or she fails.
Case: Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172
Outcome: referred to
There is no doubt that I have the power to proceed in one or other of the ways I have identified. The power is contained in s 43(2) of the Federal Court of Australia Act 1976 (Cth): Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172. Some caution is to be exercised before splitting costs in accordance with the success of the parties on various disputed questions of fact and law: Cretazzo v Lombardi (1975) 13 SASR 4 at 12 per Jacobs J; Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 at 208 per Fisher J.
Case: News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410
Outcome: referred to
A person ought to have been joined under this rule if a judgment of the Court will have a direct affect on the rights and liabilities of that person. This is to be contrasted with a judgment which will have an effect which is no more than indirect or inconsequential: News Limited v Australian Rugby Football League Limited (1996) 64 FCR 410 at 523-525. 36 I have no doubt that having regard to the reformulated orders and the matters referred to in my previous reasons, the Commonwealth Bank fell within the terms of this rule. I did not understand Orrcon to suggest the contrary. Orrcon's submission was that the Commonwealth Bank was not required to be present at the hearing and that all submissions which were properly made in opposition to its application for interlocutory relief either were or could have been made by Capital Steel. Orrcon submits that the Commonwealth Bank provided no assistance to the Court. 37 I reject this submission. The evidence filed by the Commonwealth Bank was of considerable assistance as my previous reasons indicate, and in my opinion, it would be a counsel of perfection to say that the Commonwealth should have provided this information to Capital Steel who could have presented it on its behalf. Furthermore, the Commonwealth Bank was entitled to be at the hearing to protect its interests, particularly as the orders sought by Orrcon were reformulated as the hearing proceeded. In my opinion, it cannot be said that it was not appropriate for the Commonwealth Bank to appear and to be heard. In my opinion, it follows that an order should be made that the applicant pay the fourth respondent's costs of and incidental to the application for interlocutory relief. In view of that conclusion, it is not necessary for me to address the rival submissions made by Capital Steel and the Commonwealth Bank regarding Capital Steel's application for a declaration as against the Commonwealth Bank in the event that I did not order that Orrcon pay the costs of the Commonwealth Bank. In that event, Capital Steel sought a declaration that the Commonwealth Bank was not entitled to recover the costs of the application for interlocutory relief under the securities it holds from Capital Steel.
Case: Orrcon Operations Pty Ltd v Capital Steel &amp; Pipe Pty Ltd [2007] FCA 1319
Outcome: referred to
Orrcon Operations Pty Ltd ("Orrcon") issued a proceeding in this Court on 13 July 2007. In its application Orrcon sought both interlocutory relief and final relief. The claim for interlocutory relief came on for hearing before me on 14, 15 and 16 August 2007. On 22 August 2007, I made an order that the application for interlocutory relief be dismissed. I delivered reasons: Orrcon Operations Pty Ltd v Capital Steel &amp; Pipe Pty Ltd [2007] FCA 1319. I reserved the question of costs and these reasons deal with the question of costs. 2 Capital Steel &amp; Pipe Pty Ltd ("Capital Steel") seeks the following orders: 1. That Orrcon pay its costs of the interlocutory application; 2. That such costs be taxed and paid forthwith before the principal proceeding is concluded; and 3. That such costs be taxed on an indemnity basis. 3 In support of its application, Capital Steel tendered an affidavit of Paul Joseph Dillon sworn on 30 August 2007. Mr Dillon is a solicitor acting on behalf of Capital Steel.
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201
Outcome: referred to
There is no doubt that I have the power to proceed in one or other of the ways I have identified. The power is contained in s 43(2) of the Federal Court of Australia Act 1976 (Cth): Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v DF McCloy Pty Ltd (No 2) (1991) 28 FCR 172. Some caution is to be exercised before splitting costs in accordance with the success of the parties on various disputed questions of fact and law: Cretazzo v Lombardi (1975) 13 SASR 4 at 12 per Jacobs J; Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 at 208 per Fisher J.