Cedar Hill Flowers & Foilage P/L & Anor v Spierenburg & Ors [2002] QCA 348

TRADE AND COMMERCE - RESTRAINT OF TRADE - RESTRAINT BY AGREEMENT - VALIDITY AND REASONABLENESS - REASONABLENESS - where appeal from decision of learned trial judge granting former employer/respondents injunctive relief and common law damages against the former employee/appellant for misuse of confidential information and breach of restraint of trade covenants in his employment contract - whether the covenants are enforceable and if so whether the appellant was in breach thereof TRADE AND COMMERCE - RESTRAINT OF TRADE - RESTRAINT BY AGREEMENT - VALIDITY AND REASONABLENESS - IN PARTICULAR CASES - IN CONTRACT FOR SERVICE - GENERAL PRINCIPLES - where business carried on in competition by respondent was unlicensed and therefore illegal - whether the validity of the restraint provisions were determinable by whether the appellant had an unlawful or illegitimate competing business - whether learned trial judge erred by not applying the Nordenfelt test at the time the contract was entered into before the issue of the subsequent conduct of the appellant TRADE AND COMMERCE - RESTRAINT OF TRADE - RESTRAINT BY AGREEMENT - ENFORCEMENT OF AGREEMENT - REMEDIES FOR BREACH OF AGREEMENT - where common law damages awarded at first instance for breach of contract - where on appeal retrial ordered on question of validity of covenants - where injunction ordered at first instance but no equitable damages ordered for breach of confidential information - whether damages assessable on appeal Attwood v Lamont [1920] 3 KB 571, followed

Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353, followed

Esso Petroleum Co Ltd v Harpers Garage (Stourport) [1967] UKHL 1; [1968] AC 269, considered

Gledhow Auto Parts Ltd v Delaney [1965] 1 WLR 1366, followed

Howard F Hudson Pty Limited v Ronayne [1972] HCA 3; (1971) 126 CLR 449, considered

Lindner v Murdock's Garage [1950] HCA 48; (1950) 83 CLR 628, followed

Mason v Provident Clothing and Supply Company Limited [1913] AC 724, followed

Morris v Saxelby [1916] 1 AC 688, followed

Nordenfelt v Maxim Nordenfelt Guns and Ammunition Company [1894] AC 535, followed

Peters (WA) Ltd v Petersville Ltd [2001] HCA 45; (2001) 75 ALJR 1385, followed

Putsman v Taylor [1927] 1 KB 637, followed

Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317, considered

H J H Morris QC, with A C Barlow, for the respondents