DXC Eclipse Pty Ltd v Wildsmith (No 3) [2022] NSWSC 1361

Supreme Court New South Wales

Medium Neutral Citation: DXC Eclipse Pty Ltd v Wildsmith (No 3) [2022] NSWSC 1361 Hearing dates: 7 October 2022 Date of orders: 10 October 2022 Decision date: 10 October 2022 Jurisdiction: Equity - Expedition List Before: Parker J Decision: See [7] Catchwords: RESTRAINT OF TRADE – unsuccessful application for injunctions – final orders Cases Cited: DXC Eclipse Pty Ltd v Wildsmith (No 2) [2022] NSW 1330 Category: Consequential orders Parties: DXC Eclipse Pty Limited (Plaintiff) Martin Wildsmith (First Defendant) On-Key Consulting Pty Limited (Second Defendant) Representation: Counsel: A Spies (Plaintiff) D Mahendra (Defendants)

Solicitors: Bird & Bird (Plaintiff) Maurice Blackburn Lawyers (Defendants) File Number(s): 2022/91079 Publication restriction: Nil

Judgment 1. On 30 September I delivered judgment in these proceedings following an expedited hearing: DXC Eclipse Pty Ltd v Wildsmith (No 2) [2022] NSW 1330. I concluded that the claims by the plaintiff ("DXC Eclipse") for injunctive relief failed and stood the proceedings over to allow the parties to consider what consequential orders should be made. 2. In my judgment at [191] I invited the parties to identify any errors in the form of the judgment, or any matters which I had missed. Counsel for DXC Eclipse produced a written submission listing a number of errors and omissions. There was a brief hearing on 7 October at which junior counsel for DXC Eclipse and counsel for the defendants addressed issues about the form of the orders. 3. I have considered the submission, and I think most of the points in it were well taken. But I do not think that they are sufficient to alter the conclusions which underpinned my 30 September judgment. I have dealt with them by reissuing my judgment in revised and annotated form. Errors have been corrected in the revised version of the judgment. Omissions have been addressed in footnotes. 4. Accordingly, as foreshadowed in my 30 September judgment at [190], DXC Eclipse's claim will be dismissed and the interlocutory orders made against the defendants will be discharged. I will also reserve liberty to the defendants to apply for compensation pursuant to DXC Eclipse's undertaking as to damages. This will not affect the separate undertakings given by Mr Wildsmith which last until April 2025 and are not affected by the outcome of the proceedings: see my judgment at [22]. 5. Counsel for DXC Eclipse foreshadowed the possibility of an appeal, which may be accompanied by an application to stay a discharge of the interlocutory orders against the defendants until the appeal is heard. I will stay the discharge of the interlocutory orders for a short period, two weeks, to allow any such application, if pursued, to be made to the Court of Appeal. 6. There is some debate about costs. I will grant leave to the parties to approach my Associate with a timetable for written submissions and, if necessary, a hearing. 7. The orders of the Court are: 1. Order that the plaintiff's claim be dismissed. 2. Order that the interlocutory orders made by Slattery J on 4 May 2022 be discharged. 3. Reserve leave to the defendants to apply for compensation pursuant to the undertaking as to damages given by the plaintiff in support of the interlocutory orders. 4. Stay the effect of Order (2) until 6.00 pm on 24 October 2022. 5. Grant leave to the parties to approach my Associate for the purposes of making directions as to the issue of costs.