DXC Eclipse Pty Ltd v Wildsmith

Judgment (2 paragraphs)

[1]

Judgment - EX TEMPORE Revised from transcript and annotated; issued 25 October 2022

This is an application for an extension of the stay of orders I made on 10 October, following dismissal of the plaintiff's claim in these proceedings, for the discharge of earlier interlocutory orders which had been made in advance of the trial. I stayed the effect of the orders I made discharging those interlocutory orders until 6.00 pm today. [1]
The plaintiff now seeks a further stay until determination of an application which it has made to the Court of Appeal for an extension of the stay until the determination of the appeal [2] or for the grant of an interlocutory injunction pending the hearing of that appeal in similar terms.
The plaintiff's proposed notice of appeal is before me on this application. It was filed together with the application last Friday 21 October. The proposed appeal would challenge my conclusions in their entirety. The application for a stay, or for the continuation of the stay, is based on alleged prejudice which the plaintiff would suffer if the injunction is discharged at this point or the plaintiff's claim is ultimately upheld by the Court of Appeal.
The viability of the appeal has not been disputed. The prejudice which the plaintiff would suffer arises in the following way. The defendants are seeking to launch a business which will compete with the plaintiff's business. The plaintiff's business represents an amalgam of a business purchased by the plaintiff from the defendants in 2018 and an existing independent business which was previously operated by the plaintiff. The plaintiff has the benefit of restraint covenants given by the defendants at the time of the sale and which relevantly prevents the defendants from operating a business which is "competitive" with the business acquired by the plaintiff.
I found that the business being launched by the defendants was not relevantly "competitive with" the business sold, but those findings are challenged in the appeal. The existing injunction prevents the defendants from continuing to develop their business. If it is discharged, and if the plaintiff is ultimately successful, the plaintiff would have a claim in damages for loss suffered from the defendants' activities in the meantime, but its contention is that it would be difficult, if not impossible, to assess those damages.

Endnotes

DXC Eclipse Pty Limited v Wildsmith (No 3) [2022] NSWSC 1361.
Strictly speaking, the plaintiff has filed an application for leave to appeal, but no doubt the plaintiff will be seeking a concurrent hearing of the leave application and the proposed appeal itself.
I had, however, invited the parties to identify any errors in the judgment and any points which I had missed. This invitation was taken up by the plaintiff and resulted in my delivering a revised and annotated version of my substantive judgment on 10 October.
Even though, as counsel for the defendants pointed out, the solicitors had had my substantive judgment in the preceding week. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2022

At a glance

Court

Decision date

Before

Source

Judgment (2 paragraphs)

Parties

Cases Cited (4)

Cited By (2)