Premier Pizza Distributors Pty Limited v Baingold Pty Limited & Ors [2004] NSWSC 1218

Premier Pizza Distributors Pty Limited v Baingold Pty Limited & Ors [2004] NSWSC 1218

The furnishing of a gift or loan or a guarantee was not being 'involved' in the business within the meaning of the restraint deed, but physical assistance and presence amount to involvement and so constitute a breach; no breach by Maria or Baingold was proven; no breach by John or GGM of confidential information proven; misleading and deceptive conduct not made out due to lack of causative decision-making and loss.

Parties
Plaintiff: Premier Pizza Distributors Pty Limited; First Defendant: Baingold Pty Limited; Second Defendant: Gioacchino Faraone (Jack Faraone); Third Defendant: John Faraone (Giovanni Faraone); Fourth Defendant: Maria Faraone; Fifth Defendant: GGM Specialised Distributors Pty Limited
Jurisdiction
Australia
Judgment Date
14 December 2004
Procedural Posture
Equity Proceedings / Judgment
Outcome
Plaintiff entitled to injunction restraining further breach of deed of restraint. Claims against first, third, fourth, and fifth defendants dismissed.
Legal Topics
Restraint of Trade, Sale of Business, Breach of Contract, Misleading and Deceptive Conduct
Trade and Commerce Contract Law Restraint of Trade Sale of Business Breach of Contract Misleading and Deceptive Conduct

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Parties

Premier Pizza Distributors Pty Limited

Plaintiff

Baingold Pty Limited

First Defendant

Gioacchino Faraone (Jack Faraone)

Second Defendant

John Faraone (Giovanni Faraone)

Third Defendant

Maria Faraone

Fourth Defendant

GGM Specialised Distributors Pty Limited

Fifth Defendant

Procedural Posture

Equity Proceedings / Judgment

Legal Issues

  1. 1 Whether Jack and Maria Faraone breached the deed of restraint by involvement in a competing business within the restraint period and distance
  2. 2 Whether Baingold Pty Limited breached obligations not to derogate from goodwill transferred
  3. 3 Whether John Faraone and GGM Specialised Distributors Pty Limited misused property/information belonging to the plaintiff

Ratio Decidendi

The furnishing of a gift or loan or a guarantee was not being 'involved' in the business within the meaning of the restraint deed, but physical assistance and presence amount to involvement and so constitute a breach; no breach by Maria or Baingold was proven; no breach by John or GGM of confidential information proven; misleading and deceptive conduct not made out due to lack of causative decision-making and loss.

Court Disposition

Plaintiff entitled to injunction restraining further breach of deed of restraint. Claims against first, third, fourth, and fifth defendants dismissed.

Orders

  • Injunction against second defendant (Jack Faraone) restraining further breach of deed of restraint
  • Inquiry as to damages sustained by the plaintiff as a result of Jack's breach, with the plaintiff bearing a risk as to costs of the enquiry