Hermescec v Carcagni [2008] NSWSC 183

Hermescec v Carcagni [2008] NSWSC 183

Although the plaintiff showed a strong serious question to be tried and damages were not an adequate remedy for loss of goodwill, the balance of convenience favoured refusing interlocutory relief because an injunction would in practice close or suspend the defendant's Grifone business and give the plaintiff substantially the final relief sought before trial.

Jurisdiction
Australia
Judgment Date
06 March 2008
Procedural Posture
Equity Division Proceedings Seeking Injunction and Damages for Alleged Breach of a Restraint of Trade Clause in a Business Sale Agreement / Plaintiff's Notice of Motion for Interlocutory Injunction Pending Trial
Outcome
Interlocutory injunction refused; plaintiff's application dismissed; proceedings to be directed toward early trial.
Legal Topics
['restraint of Trade' 'restrictive Covenant in Sale of Business' 'interlocutory Injunction' 'goodwill' 'balance of Convenience']
['trade and Commerce' 'equity' 'contract Law'] ['restraint of Trade' 'restrictive Covenant in Sale of Business' 'interlocutory Injunction' 'goodwill' 'balance of Convenience']

Case Brief

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Procedural Posture

Equity Division Proceedings Seeking Injunction and Damages for Alleged Breach of a Restraint of Trade Clause in a Business Sale Agreement / Plaintiff's Notice of Motion for Interlocutory Injunction Pending Trial

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the defendant breached clause 19 of the agreement by engaging in a similar restaurant business within the restrained area and period' 'Whether the restraint of two years within five kilometres was valid or enforceable, including under the Restraints of Trade Act 1976' 'Whether damages would be an adequate remedy for alleged interference with purchased goodwill' 'Whether the balance of convenience favoured granting an interlocutory injunction where the interim relief would effectively give the final relief sought']

Ratio Decidendi

Although the plaintiff showed a strong serious question to be tried and damages were not an adequate remedy for loss of goodwill, the balance of convenience favoured refusing interlocutory relief because an injunction would in practice close or suspend the defendant's Grifone business and give the plaintiff substantially the final relief sought before trial.

Court Disposition

Interlocutory injunction refused; plaintiff's application dismissed; proceedings to be directed toward early trial.

Orders

  • ["The plaintiff's application for an interlocutory injunction is dismissed." 'The proceedings are to be listed before Barrett J at an early date for directions with a view to preparation for an early trial and listing before the Expedition List Judge.' 'Submissions on costs are to be heard when the matter returns...