Creak v Ford Motor Company of Australia Ltd [2023] NSWCA 217

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Creak v Ford Motor Company of Australia Ltd [2023] NSWCA 217 Hearing dates: 10 August 2022 Decision date: 13 September 2023 Before: Gleeson JA and Kirk JA at [1]; White JA at [32] Decision: (1) Appeal allowed in part. (2) Set aside orders 1, 2, 14, 15 and 16 made in the court below on 10 March 2022. (3) In lieu of order 1 below, direct entry of judgment for the respondent against the appellant in the sum of $100. (4) Otherwise dismiss the appeal. (5) Order that within 21 days, the parties file and serve written submissions of no more than 8 pages on the appropriate orders to be made as to costs of the proceedings below, interest on costs, and costs of the appeal. (6) Any submissions in reply to be filed and served within 7 days thereafter. Catchwords: COMMERCE — Restraint of trade — Deed of settlement of litigation involving allegations of misleading or deceptive conduct, passing off, and unconscionable conduct — Where respondent instituted proceedings to restrain appellant and company controlled by him from "raptorising" its vehicles — Where "raptorisation" connotes affixing materials to respondent's vehicles — Where appellant undertakes that neither he nor his "Related Entities" will engage in conduct proscribed by deed — Where appellant's company subsequently engage in conduct proscribed by deed — Whether restraint of trade doctrine applies to deeds of settlement — Whether mandatory and prohibitive injunctive relief appropriate in circumstances of case — Held that undertaking not void as being in restraint of trade — Injunctive relief granted EVIDENCE — Admissibility of evidence of prior orders of Common Law Division to prove existence of fact in issue — Where fact in issue quantum of respondent's loss caused by appellant's breaches of covenant and indemnity — Where no other evidence sought to be adduced to quantify loss — Whether prohibition in s 91(1) of Evidence Act 1995 (NSW) extends to orders — Evidence of prior orders held inadmissible CONTRACTS — Breach of contract — Remedies — Equitable remedies — Injunctions — Whether undertaking not to engage in proscribed conduct better characterised as undertaking or warranty — Whether classification of term as warranty preclusive of injunctive relief — Held that classification of term irrelevant to grant of injunctive relief Legislation Cited: Competition and Consumer Act 2010 (Cth), ss 4L, 45AJ, 51ACB Evidence Act 1995 (NSW), ss 91, 93 Jurisdiction of Courts (Cross -vesting) Act 1987 (Cth), s 6(1) Restraints of Trade Act 1976 (NSW), s 4(1) Trade Marks Act 1995 (Cth), ss 120, 122 Legal Profession Uniform Law (NSW), ss 171, 198 Trade Practice (Industry Codes) Franchising Regulations 1998 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 14.27 Cases Cited: Adlam v Noack [1999] FCA 1606 Allied Express Transport Pty Ltd v Braim [2022] NSWSC 1298 Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288; [1973] HCA 40 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Noack (2004) 71 NSWLR 212; [2004] NSWSC 347 Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353 Commissioner of Police v Zisopoulos (2020) 299 IR 314; [2020] NSWCA 236 Commissioner of Taxation for New South Wales v Palmer [1907] AC 179 Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552; [1979] HCA 41 Ford Motor Company of Australia Ltd v Tallevine Pty Ltd (as Trustee for the Thornleigh Trading Trust) [2019] NSWSC 1914 Ford Motor Company of Australia Ltd v Tallevine Pty Ltd (in liq) [2021] NSWSC 1192 Isaac v Dargan Financial Services Pty Ltd (2018) 98 NSWLR 343; [2018] NSWCA 163 KA & C Smith Pty Ltd v Ward (1998) 45 NSWLR 702 Label Manufacturers Australia Pty Ltd v Chatzopoulos [2022] NSWSC 1059 Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 Man Financial (S) Pte Ltd v Wong Bark Chuan David [2007] SGCA 53; [2008] 1 SLR(R) 663; [2008] 4 LRC 419 Metcash Ltd v Jardim (No 3) [2010] NSWSC 1096; (2010) 273 ALR 407 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co [1894] AC 535 Orleans Investments Pty Ltd v Mindshare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40 Panayiotou v Sony Music Entertainment (UK) Ltd [1994] EMLR 229 Peters (WA) v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45 Peters American Delicacy Co Ltd v Patricia's Chocolates & Candies Pty Ltd (1947) 77 CLR 574; [1947] HCA 62 Price v Spoor (2021) 270 CLR 450; [2021] HCA 20 Properties Northside Pty Ltd t/as Raine & Horne Manly/Freshwater v Pickering [2015] NSWSC 310 Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 Robins v National Trust Co Ltd [1927] AC 515 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 World Wide Fund for Nature v World Wrestling Federation Entertainment Inc [2002] EWCA Civ 196; (2002) 54 IPR 145; [2002] FSR 33 Texts Cited: D W Grieg and J L R Davis, The Law of Contract (Law Book Co, 1987) J D Heydon, Cross on Evidence (LexisNexis, 13th edition) J D Heydon, The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths) C R Williams, "Burdens and Standards in Civil Litigation" (2003) 25 Syd Law Review 165 Category: Principal judgment Parties: Ian David Charles Creak (Appellant) Ford Motor Company of Australia Ltd (Respondent) Representation: Counsel: T Brennan SC with M Darian-Smith (Appellant) CRC Newlinds SC with R Glasson (Respondent)