(5) whilst this proposition is true the recital is unambiguous.
18 I basically agree with Mr McQuillen on propositions (1), (4) and (5).
19 As to proposition (2), I find this rather difficult. I have not found a case where the party alleged to be estopped has been permitted to raise the case that there is a fact contrary to the estoppel and also to lead evidence that the relevant proposition is correct.
20 It must be said that the present proceedings are by way of summons. The issues accordingly do not clearly appear from the documents filed. When I read the affidavits it was quite apparent from annexure A to Dr Berry's affidavit of 5 October 2000 that there was a company involved which held the goodwill of the practice in recent times. This prompted me to ask Mr Jackman what were his defences and he straightaway raised the defence of the company, not the individual, having the goodwill.
21 Later on, evidence was given in answer to questions in cross-examination by Dr Berry that at all times since 1987 the company had been the proprietor of the practice.
22 It was only really when the full significance of these matters was being debated in closing addresses that the point about estoppel by deed was taken.
23 In the old days the estoppel had to be taken in the pleadings or else it was waived: see for instance Matthew v Osborne (1853) 13 CB 919, 944; 138 ER 1465, 1475. It seems to me that whether estoppel by deed is a rule of evidence or something more, if the point is not taken as soon as practicable after it is raised, it is waived. The Court now having in evidence what the true situation was and the point only being taken in closing addresses must mean that if there was any estoppel it has been waived.
24 I should add that Mr McQuillen submitted that estoppel by deed is a species of estoppel by convention. That is probably no longer the law even though there is some respectable authority in support of it. The more modern view appears to be that one should treat estoppel by deed as a form of estoppel in pais: see Cross on Evidence 4th Australian edition (Butterworths, 1991) para [5245] (the matter has been omitted from the 5th edition) and Caboche & Bond v Ramsay (1993) 119 ALR 215, 236.
25 The exception noted as proposition (3), is fairly narrowly stated in Wilken and Villiers, Waiver, Variation and Estoppel (John Wiley & Sons, Chichester, 1998) at p 230. However, Australian authorities do seem to go as far as the proposition put up by Mr Jackman and Mr Tyson: see Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432, 444 and 482 and the Privy Council decision in Amoco Australia Pty Limited v Rocca Bros Motor Engineering Co Pty Limited (No. 2) (1975) 133 CLR 331, 344.
26 The present situation is one where the question is what is in accordance with public policy and it seems to me that one cannot have an interparties estoppel by deed which would prevent the Court inquiring into what the real situation is.
27 Accordingly, even if the point had been taken earlier, it would not have made any difference in the result of this case because on either point the estoppel by deed could not succeed.
28 As I said earlier, a covenant will be unreasonable unless it protects goodwill. Mr McQuillen sought to escape from the problem in this case that the goodwill in the normal sense of the word was in the wrong person by relying on two further arguments, vis: (1) that Dr Berry himself had a personal goodwill; and (2) the principle in Trego v Hunt [1896] AC 7.
29 Whilst I commend these attempts I cannot see how either argument takes the matter very much further. It is true that goodwill is a nebulous concept and the best one can do is to say that it is the "attractive force which brings in custom": IRC v Muller & Co's Margarine Limited [1901] AC 217, 224.
30 One can pare down that attractive force and indeed in Whiteman Smith Motor Co Limited v Chaplin [1934] 2 KB 35 at 42, goodwill is classified according to "cat, dog, rat and rabbit" goodwill depending on why a person comes to a particular business. The cat will go always to the old place of business no matter who is there; the dog will tend to follow the person who serves him; the rat has no attachments and is purely casual and the rabbit will go to the closest place. However, in the instant case whilst it is quite clear that Dr Berry himself has patients and he has dog-type goodwill in those patients, that goodwill does not support the present covenant which is to benefit the practice generally and to make sure that the proprietor of the practice, having invested in the equipment that Dr Wong has used, and the advertising of the practice is not damaged by Dr Wong leaving and practising in competition. Dr Berry's personal dog-type goodwill is not sufficient to support this.
31 Again, the Trego v Hunt principle does not in my mind operate. Essentially that principle is that there is an implied term in any contract of this nature that neither party will act to the detriment of the goodwill of the proprietor. Even if it can be stretched to this sort of a situation, the basal problem still is there that the company is the proprietor of the goodwill.
32 The defendant's second attack was that the Associate Contract said that Dr Wong was to receive a certain percentage of billings. That was at least once, if not twice, reduced by Dr Berry though perhaps once with the approval of Dr Wong. The proposition basically is that when the remuneration was changed there must have been rescission of the Associate Contract and commencement of a new contract, and that the new contract did not contain clauses 6 and 7.
33 That sort of argument may have succeeded 100 years or so ago but the modern approach to commercial contracts, as set out in the judgment of McHugh JA when a judge of the New South Wales Court of Appeal in Integrated Computer Services Pty Limited v Digital Equipment Corp (Aust) Pty Limited (1988) 5 BPR 11,110 at 11,117, is that one expects with commercial contracts in this century that once a contractual regime exists parties will be constantly changing some of the vital terms of their agreement as their contractual regime steers its course through the various pot holes of business life.
34 I do not think that these days one lightly infers that even if there is a unilateral forcing of another party to accept a changed term, that that necessarily means that the contract is at an end and there is a new contract. Even if there is, one would have thought that ordinarily the Court would imply the same terms in the new contract as in the old.
35 Accordingly, I would reject this second argument.
36 There is an allied point which I do not need to decide, but perhaps should state in case this matter goes further, and that is that the Associate Contract is drawn in at least one respect in a strange way. It ordinarily would have come to an end in 1999 but, as I have noted, it could carry on by agreement between the parties for a holding over period. In the instant case there was no explicit agreement, but as the parties both continued to work together on the same basis, such an agreement might be implied. However, clause 6 refers to something happening after the termination of the contract or the holding over period, whereas clause 7 does not refer to the holding over period. It may be that the two years in clause 7 dates from the end of the contract rather than the end of the holding over period. As I say, I do not have to decide this.
37 I should note, however, that clause 6 is probably bad in any event because it is for an indefinite duration. Clause 7, on the other hand, is for a definite amount of time.
38 It is accordingly unnecessary to deal with the merits of the case. I will, however, just say that there were arguments directed by way of analogy to other decided cases, as to whether five kilometres and two years were appropriate in this sort of case. In particular reference was made to Corbin v Stewart (1911) 28 TLR 98 and to the decision of the Queensland Court of Appeal in Ashcoast Pty Limited v Whillans [2000] 2 Qd R 1. Although it is useful to cite these comparable cases, they are of only marginal significance as unless one knows, and I suppose, strictly speaking, has evidence of, the areas, the topography and the demography of the various places involved it is sometimes unwise to draw comfort from them.
39 All I should say is that two years in this sort of covenant is usually considered not to be unreasonable in a covenant involving professional people and even in a closely settled area, five kilometres is something that will usually pass muster, but there would be, without evidence in the instant case, some problems because of the lack of connection between the various areas concerned. However, the evidence did show that in 2000 there was probably sufficient connection with Oatley to protect the practice's goodwill. Unfortunately, there was no evidence, apart from what one could extrapolate backwards, to show what the situation was in 1996 in a situation where we know from the evidence that the practice had greatly expanded.
40 In the end, the case does not support the restraint and the proceedings must be dismissed.
41 The defendant has asked for costs. Costs usually follow the event. However, when a professional man takes advantage of another professional man and makes promises to him, then breaches those promises and goes to trial without indicating before the trial that he is relying on a technical defence, it is not a situation, to my mind, where he should get any costs.
42 Accordingly, the proceedings must be dismissed with no order as to costs.
43 The exhibits should remain.