Industrial Rollformers Pty Ltd & Anor v Ingersoll-Rand (Australia) Pty Ltd (No 2) [2001] NSWCA 455

Industrial Rollformers Pty Ltd & Anor v Ingersoll-Rand (Australia) Pty Ltd (No 2) [2001] NSWCA 455

The non-contentious variations should be made because the appeal orders did not fully reflect the holding that the second appellant had not accepted and become bound by the agreement. The contentious variation of the undertaking should not be entertained because the appellants had not sought that variation in the notice of appeal, had already had the opportunity to challenge the undertaking, and analogous principles governing reopening of judgments militated against amendment after judgment. In any event, the undertaking was part of a negotiated consent interlocutory arrangement, was not framed by the Court to conform to cl 12 or cl 15 of the agreement, and no basis was shown for varying...

Jurisdiction
Australia
Judgment Date
13 December 2001
Procedural Posture
Notice of Motion in Court of Appeal After Judgment Seeking Additional Orders and Variation of Undertaking / Post Appeal Judgment Application
Outcome
Orders varied in part; otherwise notice of motion dismissed; appellants ordered to pay respondent's costs of the notice of motion.
Legal Topics
['slip Rule' 'amendment of Notice of Appeal' 'reopening Judgment by Analogy' 'variation of Undertaking' 'consent Interlocutory Arrangements' 'breach of Confidence' 'restraint of Trade']
['civil Procedure' 'contract' 'equity' 'restraint of Trade' 'confidential Information'] ['slip Rule' 'amendment of Notice of Appeal' 'reopening Judgment by Analogy' 'variation of Undertaking' 'consent Interlocutory Arrangements' 'breach of Confidence' 'restraint of Trade']

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Procedural Posture

Notice of Motion in Court of Appeal After Judgment Seeking Additional Orders and Variation of Undertaking / Post Appeal Judgment Application

Legal Issues

  1. 1 ['Whether additional variations to the appeal orders should be made under Pt 20 r 10 of the Supreme Court Rules to reflect that the second appellant was not bound by the supply agreement.' 'Whether the appellants should be permitted to amend the notice of appeal after judgment to seek variation of an undertaking noted by the trial judge.' 'Whether the undertaking should be varied by replacing the words "similar thereto" with words tied to use of confidential specifications and tolerances.']

Ratio Decidendi

The non-contentious variations should be made because the appeal orders did not fully reflect the holding that the second appellant had not accepted and become bound by the agreement. The contentious variation of the undertaking should not be entertained because the appellants had not sought that variation in the notice of appeal, had already had the opportunity to challenge the undertaking, and analogous principles governing reopening of judgments militated against amendment after judgment. In any event, the undertaking was part of a negotiated consent interlocutory arrangement, was not framed by the Court to conform to cl 12 or cl 15 of the agreement, and no basis was shown for varying...

Court Disposition

Orders varied in part; otherwise notice of motion dismissed; appellants ordered to pay respondent's costs of the notice of motion.

Orders

  • ['Vary the orders made on 24 April 2001 by adding to order 2 the following sub-paragraphs: (aa) deleting the words "the Defendants" from declaration 2 and substituting for them the words "Industrial Rollformers Pty Limited"; (ab) deleting declaration 5; (ac) inserting the word "First" before the word "Defendant\'s"...