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) Solicitors: Adrian Holmes Law Services (Appellant) Lander & Rogers (Respondent) File Number(s): 2022/65750 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2022] NSWSC 83 Date of Decision: 8 February 2022 Before: Schmidt AJ File Number(s): 2019/163053 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] From 2010 to February 2014, the appellant, Mr Ian Creak, through a company of which he was the sole director and shareholder, Tallevine Pty Ltd ("Tallevine"), conducted an authorised Ford dealership pursuant to a Dealership Agreement with the respondent, Ford Motor Company of Australia Ltd ("Ford"). During its time as an authorised Ford dealer, Tallevine advertised, distributed, supplied, and sold a range of Ford vehicles, including those that it had on its own motion "raptorised". The process of "raptorisation" consisted of the affixation of grilles, accessories, and parts to Ford vehicles in order to mimic the Ford vehicles sold in the United States under Ford's "Raptor" line. Following termination of the Dealership Agreement by Ford, Mr Creak, through Tallevine, continued not only to represent to prospective purchasers that Tallevine enjoyed a subsisting business relationship with Ford, but also to "raptorise" Ford vehicles sold at Tallevine's dealership and on the internet. With a view to compromising proceedings instituted by Ford in the County Court of Victoria for misleading or deceptive conduct and passing off, Mr Creak, Tallevine, and Ford entered into a deed of settlement on 16 September 2015 ("Deed"). The parties also contemplated that the Deed would pre-emptively settle proceedings that Tallevine intended to commence in the Federal Court of Australia, arising from the circumstances in which the Dealership Agreement had been terminated. Clause 2.1 of the Deed envisaged that Ford would institute proceedings in the Supreme Court seeking injunctive relief against Tallevine; that Tallevine would appear in those proceedings; and that the parties would co-operate in proffering consent orders to the Court in the form contained in the minutes attached to the Deed. Those minutes contained positive stipulations obliging Tallevine to deliver up to Ford certain websites and documents, and proscriptions relating to Tallevine's use of Ford's intellectual property. While Mr Creak was not anticipated to be a party to the proceedings between Tallevine and Ford, by cl 2.2(a) of the Deed, he undertook that neither he nor any of his "Related Entities" would engage in the conduct proscribed by the minutes. Clauses 3 and 4 of the Deed respectively provided that the parties were to release one another from certain claims, and that each was not to bring or pursue proceedings in respect of those claims. To this end, cl 5 of the Deed contained covenants for indemnification of any losses caused by a breach of cl 3 or cl 4. The Deed did not bring an end to the appellant's raptorisation of Ford's vehicles, nor to other conduct that the consent orders and minutes sought to restrain. That raptorisation and conduct continued after Tallevine had sold its business to another company controlled by Mr Creak, Fleet Serv Pty Ltd ("Fleet Serv"), in June 2017. Ford thereupon commenced contempt proceedings against Tallevine in 2017, in which Tallevine cross-claimed either that Ford had repudiated the Deed or that Tallevine had validly rescinded the Deed ("2017 Proceedings"). The 2017 Proceedings came to a halt after Tallevine entered liquidation. In the primary proceedings, brought against Tallevine and Mr Creak, Ford contended that, inter alia, Mr Creak had breached his undertaking in cl 2.2(a) of the Deed by failing to comply with the minutes to the Deed. Ford also contended that Tallevine's prosecuting its cross-claim in the 2017 Proceedings amounted to a breach of the release provisions contained in cll 3 and 4 of the Deed, such that it and Mr Creak were liable to indemnify Ford for any losses suffered thereby. At trial, Ford did not lead evidence on the quantum of its loss other than reasons for judgment given and orders entered in the Common Law Division quantifying its costs of defending the cross-claim in the sum of $295,000. Conversely, Mr Creak contended, among other things, that his raptorisation of Ford's vehicles was done in good faith (so as to fall within an exemptive provision in the minutes, cl 10(b)), and that cl 2.2(a) of the Deed was void as being in restraint of trade. Mr Creak asserted in the alternative that cl 2.2(a) was a bare warranty that the facts described therein would be in existence in the future, such that the Court ought not to enjoin him from further breaches thereof by injunction. The primary judge (Schmidt AJ) entered judgment for Ford on the entirety of its claim. Injunctive relief enjoining further breaches of cl 2.2(a) issued against Mr Creak, alongside a monetary judgment of $145,000 in satisfaction of his obligation to indemnify Ford for any losses caused by Tallevine's prosecution of its cross-claim. The primary judge quantified the monetary judgment by reference to prior costs orders entered in the 2017 Proceedings by Fagan J, less a sum already paid to Ford as security for its costs therein. On appeal, the principal issues before the Court were: (i) Whether the primary judge had erred in concluding that the restraint of trade doctrine did not apply to cl 2.2(a) of the Deed, as a term of a deed of settlement, or in concluding that, even if the doctrine were to apply, any such restraint would not be void as being reasonable in the interests of the parties and in the public interest; (ii) Whether the primary judge had erred in concluding that the raptorisation of Ford's vehicles carried out by Mr Creak, Tallevine, and Fleet Serv was not exempted from the minutes to the Deed; (iii) Whether the primary judge had erred in issuing injunctive relief against Mr Creak, on the basis either that cl 2.2(a) was in the nature of a bare warranty, or that mandatory orders compelling the performance of actions by Tallevine could not be imposed upon Mr Creak, or that the ambiguity present in the Deed was such as to render injunctive relief inappropriate; and (iv) Whether the primary judge had erred in having recourse to the orders entered by Fagan J in quantifying the sum payable by Mr Creak to Ford pursuant to cl 5 of the Deed. The Court (per Gleeson and Kirk JJA and White JA), allowing the appeal in part, held: As to issue (i) per Gleeson and Kirk JJA: (1) Where a restraint of trade is imposed by a deed of settlement compromising litigation not itself concerning an anteriorly imposed restraint of trade, no distinctive approach is warranted in determining whether the restraint of trade doctrine voids the restraint. Where a restraint of trade imposed by a deed of settlement aims to compromise litigation concerned with an anteriorly imposed restraint of trade, the doctrine of restraint of trade is still applicable but with the additional consideration that the covenantee has a legitimate interest in enforcing the deed of settlement with some degree of certainty: [17]-[30]. Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co [1894] AC 535; Peters American Delicacy Co Ltd v Patricia's Chocolates & Candies Pty Ltd (1947) 77 CLR 574; [1947] HCA 62; Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288; [1973] HCA 40; Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45, discussed. World Wide Fund for Nature v World Wrestling Federation Entertainment Inc (2002) 54 IPR 145; [2002] EWCA Civ 196, doubted. Panayiotou v Sony Music Entertainment (UK) Ltd [1994] EMLR 229; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Noack (2004) 71 NSWLR 212; [2004] NSWSC 347; Man Financial (S) Pte Ltd v Wong Bark Chuan David [2007] SGCA 53; [2008] 1 SLR(R) 663; Metcash Ltd v Jardim (No 3) (2010) 273 ALR 407; [2010] NSWSC 1096; Properties Northside Pty Ltd t/as Raine & Horne Manly/Freshwater v Pickering [2015] NSWSC 310, disapproved. (2) The primary judge was correct to conclude that the restraint of trade doctrine did not operate to void cl 2.2(a) of the Deed, as the restraints were reasonable as between the parties and not contrary to the public interest taking account of all the circumstances: [31]. As to issue (i) per White JA: (3) The dispute compromised by the deed of settlement did not concern the validity of an anterior restraint of trade. The doctrine of restraint of trade was applicable to cl 2(a), but the primary judge was correct to conclude that the restraint was not invalid as being unreasonable in the interests of the parties and was in the public interest. Where a restraint of trade is imposed by a deed of settlement, entered into with the benefit of legal advice, and represents a genuine and proper compromise of an actual or anticipated dispute between the parties, the evidentiary onus shifts to the covenantee to establish that the impugned restraint is void: [98]-[113], [124]. World Wide Fund for Nature v World Wrestling Federation Entertainment Inc [2002] EWCA Civ 196; [2002] FSR 33, followed. Panayiotou v Sony Music Entertainment (UK) Ltd [1994] EMLR 229; Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45; Metcash Ltd v Jardim (No 3) [2010] NSWSC 1096; (2010) 273 ALR 407; Properties Northside Pty Ltd t/as Raine & Horne Manly/Freshwater v Pickering [2015] NSWSC 310, considered. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Noack (2004) 71 NSWLR 212; [2004] NSWSC 347, doubted. As to issue (ii) per curiam: (4) Although the primary judge erred in limiting the good faith use exception in order 10(b) of the minutes to the preservation of good faith use of trade marks permitted by ss 120 and 122 of the Trade Marks Act 1995 (Cth), the primary judge was correct to conclude that the appellant's raptorisation of Ford's vehicles was not within conduct permitted by order 10(b): [1] (Gleeson and Kirk JJA); [84]-[91] (White JA). As to issue (iii) per curiam: (5) The primary judge did not err in enjoining further breaches by Mr Creak of cl 2.2(a) of the Deed by injunction. Irrespective of its classification as a condition, innominate term, or bare warranty, cl 2.2(a) was clearly worded as an undertaking to refrain, and to cause others to refrain, from the conduct proscribed by the minutes to the Deed. As a negative promise, cl 2.2(a) was enforceable by injunction: [1] (Gleeson and Kirk JJA); [92]-[95] (White JA). Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552; [1979] HCA 41; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8; Price v Spoor (2021) 270 CLR 450; [2021] HCA 20, applied. (6) The primary judge did not err in issuing mandatory injunctions compelling Mr Creak to carry out actions that Tallevine had been obliged to perform pursuant to the consent orders. Although the minutes to the Deed did not purport to oblige Mr Creak to perform those actions, mandatory injunctive relief to that effect operated to remedy Tallevine's and Fleet Serv's breaches of those obligations at Mr Creak's behest: [1] (Gleeson and Kirk JJA); [129]-[136] (White JA). (7) The primary judge did not err in qualifying some of the injunctive relief ordered by reference to the language of order 10(b) of the minutes to the Deed. Although some ambiguity might have arisen as to the ambit of the term "good faith", any such ambiguity was capable of being resolved by reference to the Court's reasons, and was a risk taken on by Mr Creak: [1] (Gleeson and Kirk JJA); [137] (White JA). Orleans Investments Pty Ltd v Mindshare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40, followed. As to issue (v) per curiam: (8) The primary judge's recourse to the costs orders entered by Fagan J in the 2017 Proceedings in order to quantify the extent of Mr Creak's obligation to indemnify Ford was erroneous. Such recourse was inconsistent with the prohibition contained in s 91(1) of the Evidence Act 1995 (NSW) against admitting evidence of a prior decision to prove the existence of a fact that was in issue in prior proceedings: [1] (Gleeson and Kirk JJA); [157]-[166] (White JA). (9) Even if Ford's cause of action to enforce the indemnity did not merge in the primary judgment, it would be an abuse of process for Ford, having failed to prove the quantum of its claim before the primary judge, to institute new proceedings in which it sought to quantify its claim for indemnity or to seek the assessment of its costs pursuant to s 198 of the Legal Profession Uniform Law (NSW): [1] (Gleeson and Kirk JJA); [167] (White JA). Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142, followed. JUDGMENT 1. GLEESON JA and KIRK JA: We agree with the orders proposed by White JA and, subject to what follows, with his Honour's reasons. The following observations are directed to the issue of restraint of trade, as raised by grounds 4-7 of the amended notice of appeal. 2. The common law restraint of trade doctrine applies if there is a "restraint" in the relevant sense, if it is a restraint of "trade" in the relevant sense, and if the restraint of trade in question is not of a species which falls outside the operation of the common law doctrine: note Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45 at [14]-[19]. If the doctrine does apply then it is necessary to ask both whether the restraint is reasonable as between the parties, in that it is no wider than is reasonably necessary to protect some legitimate interest of the covenantee, and whether the restraint is against the public interest: see eg Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co [1894] AC 535 at 565; Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353 at 376. At common law the onus of proof for the former issue lies on the covenantee, and for the latter lies on the covenantor: see authority gathered in JD Heydon, The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths), 34-35. The burden of persuasion no doubt is allocated the same way (as to the difference between burdens of proof and persuasion, see below at [25]-[27]). Issues of severance may then arise along with, under New South Wales law, the possibility of reading down pursuant to the Restraints of Trade Act 1976 (NSW). 3. Here, based on prior English and Australian first instance authority, the primary judge held that the restraint imposed by cl 2.2(a) of the Deed fell within an exceptional category to which the doctrine did not apply. As White JA indicates at [106] below, it was appropriate that her Honour follow earlier Australian first instance authority out of comity. However, like White JA, we respectfully disagree with aspects of the approach taken in that authority. 4. The relevant proposition can be traced back to the judgment in Panayiotou v Sony Music Entertainment (UK) Ltd [1994] EMLR 229 (the George Michael case). Parker J held there that a contractual restraint entered in settlement of a dispute about another contractual restraint "does not attract the doctrine of restraint of trade" (at 347). Based on authority relating to compromises of other types of dispute, his Lordship said that there "is a clear public interest in upholding genuine and proper compromises" (at 345). He referred to "powerful public policy reasons" against a litigant being able to take advantage of the restraint of trade doctrine to rid themselves of the substituted restraint that they had agreed to in order to resolve the earlier dispute (at 346). He said (ibid): But the overriding consideration … is that if it be open to a plaintiff to challenge a compromise of a restraint of trade issue by alleging that the compromise is itself in restraint of trade, then it seems to me to follow that a restraint of trade issue could never be compromised by the substitution of a new agreement. Unless the parties are able to compromise the issue in some way which does not involve the substitution of a new agreement, they will have no option but to litigate the issue to judgment, whether they like it or not. 1. There are two overlapping public interest arguments raised here: the desirability of upholding settlements of disputes per se, and the desirability of facilitating settlements of disputes. The former relates to all types of disputes. The latter – to the extent it goes beyond the former – relevantly relates in particular to disputes about restraints of trade, where otherwise it may be difficult to resolve disputes about restraints of trade if any subsequent restraints agreed were themselves fully open to challenge as a restraint. 2. As four members of the High Court noted in Peters (WA) Ltd v Petersville Ltd at [19], the George Michael decision suggests that a "genuine and proper compromise" of a dispute respecting an alleged restraint of trade may fall outside the scope of the restraint of trade doctrine, such that the subsequent restraint does not require justification under that doctrine. It was unnecessary to resolve the point in that case. 3. In 2002 the English Court of Appeal considered a dispute between two entities over use of the acronym "WWF": World Wide Fund for Nature v World Wrestling Federation Entertainment Inc (2002) 54 IPR 145; [2002] EWCA Civ 196. The parties had been involved in a series of disputes around the world, mainly in the context of applications by the Federation to register trade marks. There had been litigation in Switzerland. In 1994 an agreement was reached which involved restrictions on the Federation's use of the acronym and the Fund agreeing to withdraw all pending legal actions. The Fund later brought proceedings successfully seeking to enforce restraints in that agreement. The Court rejected the Federation's argument that the restraints were unenforceable as a restraint of trade. 4. The disputes resolved by the settlement agreement were not about pre-existing covenants in restraints of trade; the parties did not have a pre-existing contractual relationship. Perhaps for that reason the Court did not refer to the George Michael case. White JA quotes the key passages of the Court of Appeal's judgment below at [112]. The Court said at [48] that as regards restraints arising from "a settlement of a genuine dispute" there is a presumption that the restraints are reasonable as between the parties. It is for the covenantor, seeking to avoid the agreement, to show that there is something justifying application of the restraint doctrine, such as that the original dispute was contrived, or there was no reasonable basis for the rights claimed, or it was "otherwise contrary to the public interest". This approach thus holds that the restraint of trade doctrine can still apply to settlement agreements, but effectively says that there is a presumption that the restraint is reasonable in the parties' interests, thus reversing the usual burden. The judgment is not necessarily inconsistent with the George Michael proposition that the restraint doctrine does not apply at all to settlements of disputes about restraints, because the case was not addressing that more specific issue. 5. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Noack (2004) 71 NSWLR 212; [2004] NSWSC 347 a personal and political dispute had arisen between two trade union officials, which led to litigation, and in turn to a finding of contempt being made against one of those officials, Mr Noack. An internal union disciplinary process was then commenced which was resolved by an agreement recorded in a deed. Part of the agreement was that Mr Noack agreed with the union that he would not thereafter seek any elected office in the union. He later did so in breach of his promise. The union sought to enforce the promise, in response to which Mr Noack submitted that it was unenforceable as a restraint of trade. Nicholas J rejected that contention, holding first that it was not a restraint of trade (at [44]-[47]). Secondly, in reliance on the George Michael case, he held that the promise was of a type to which the restraint doctrine did not apply (at [48]-[57]). 6. In fact, the Noack decision went further than George Michael, as there is nothing to suggest that the first dispute – which had been settled by the deed – involved issues of restraint of trade. It is not apparent that his Honour realised that that was so. It may be relevant in that regard that Mr Noack was not legally represented. Noack also went further than World Wide Fund – which was not cited – in that Nicholas J held that the restraint doctrine did not apply at all to settlement agreements. 7. The Court of Appeal of Singapore considered the issue in 2007 in Man Financial (S) Pte Ltd v Wong Bark Chuan David [2007] SGCA 53; [2008] 1 SLR(R) 663. The discussion was in obiter as the Court held that the agreement containing the impugned restraint was not contained in a settlement agreement in the relevant sense (at [40]-[41]). Nevertheless, the Court concluded that there were "compelling reasons in favour of the approach" adopted in George Michael (at [61]). It held that the public policy in favour of upholding genuine settlement or compromise agreements trumped the public policy manifest in the doctrine of restraint of trade, so long as two conditions were met: (a) the settlement was of a prior dispute over a restraint of trade in an existing contract (as opposed to settlement of disputes generally); and (b) the settlement was not "tainted by one or more vitiating factors" (at [65]). The latter condition seemed to overlap with identification of what constituted a genuine settlement, for that was said to be "a settlement or compromise agreement that is not rendered either void or voidable by vitiating factors" (at [43]). 8. An argument based on George Michael was raised in the Supreme Court of this State in Metcash Limited v Jardim (No 3) (2010) 273 ALR 407; [2010] NSWSC 1096. Ball J held that the principle from that case did not apply, as the first dispute (which had been settled) concerned termination of a contract and not the enforceability of a restraint in the contract. As there had been no compromise reached in relation to the restraint there was no reason why the restraint of trade doctrine should not apply. This decision appears inconsistent with Noack insofar as it limited the relevant proposition to cases where the settled dispute involved controversy relating to restraint of trade. 9. The issue was then raised before Ball J again in a subsequent case, Properties Northside Pty Ltd t/as Raine & Horne Manly/Freshwater v Pickering [2015] NSWSC 310. In that case a real estate agent was subject to post-employment restraints. The agent left the agency, which sought to enforce the restraints, in response to which he argued the restraints were unenforceable. The litigation was settled by a deed which contained somewhat different restraints. The agency subsequently alleged that the agent had breached the settlement deed, including the restraints. The agent argued the restraints in the deed were unenforceable. 10. Ball J held that the deed was a genuine compromise of a dispute about the original restraints and, as such, outside the scope of the restraint of trade doctrine. His Honour referred to George Michael and Noack, and said at [46] that it was appropriate to follow the decision of Noack (in fact, as referred to above, Noack goes beyond George Michael). In any event, Ball J appeared to agree with the George Michael approach, at least insofar as it related to assessment of what was reasonable between the parties, saying as follows: [48] If the parties to a restraint reach a genuine compromise concerning what is reasonable as between them, it seems to me contrary to the public policy in favour of the finality of litigation to permit the party on whom the restraint is imposed to seek to argue that the compromise involves the imposition of an unreasonable restraint on that party's liberty. The public policy that underlies the restraint of trade doctrine is largely satisfied by the compromise. On the other hand, the public policy that encourages parties to settle their disputes would be completely undermined if the party the subject of the restraint were free to re-agitate its reasonableness. [49] The position may be different if it is alleged that the restraint is said to be unreasonable having regard to the interest of the public. However, no allegation of that type is made in this case; and it is difficult to see how such an allegation could be made. The dispute in this case is clearly about the effect of the restraints on Mr Pickering, not the effect of the restraints on the public interest. 1. His Honour's approach is somewhat similar to that adopted in World Wide Fund, at least insofar as it suggests that a settlement might still be impugned based on being contrary to the public interest. His Honour may adopt a more rigid position as regards reasonableness between the parties, as he appears to view that as conclusively determined by the compromise, whereas the English Court of Appeal spoke in terms of a presumption. 2. In this case White JA adopts an approach similar to that in World Wide Fund insofar as his Honour suggests that in a case where there has been a settlement, by parties legally represented, there is an "evidentiary onus" on the challenger to establish that the restraint is not reasonable as between the parties, although the legal onus remains on the party defending the restraint (at [124]). 3. The approaches taken in these cases to restraints imposed in agreements entered as "genuine and proper compromises" of disputes are thus as follows: 1. the restraint of trade doctrine does not apply at all (Noack); 2. the doctrine does not apply at all at least if the previous dispute involved controversy about restraints of trade (George Michael, Man Financial, note also Metcash); 3. the covenantor is unable to argue that the restraint is unreasonable as between the parties, but may still argue that it is contrary to the public interest (Properties Northside); 4. there is some degree of reversal of the onus of proof on the issue of whether the restraint is unreasonable as between the parties, such that it is borne by the covenantor (World Wide Fund; White JA in this case). 1. For our part, we disagree with approaches (1), (2) and (3). In our view they give insufficient weight to the public interest in limiting restraints of trade. The doctrine gives effect to public policy, doing so in a way which overrides contractual freedom: see eg Peters American Delicacy Co Ltd v Patricia's Chocolates & Candies Pty Ltd (1947) 77 CLR 574 at 590-591; [1947] HCA 62. The fact that the parties have reached an agreement a second time is not of itself a promising basis for suggesting that the doctrine is excluded, subject to consideration of the strength of the public interest relating to settlements. 2. The public policy against restraints of trade is not only vindicated by asking the secondary question of whether the restraint is contrary to the public interest. The prior question of whether the restraint is reasonable as between the parties, which is most obviously directed towards the preservation of party autonomy, also manifests a concern about the public interest. So much is reflected in the seminal discussion by Lord Macnaghten in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co [1894] AC 535 at 565 (emphasis added): The public have an interest in every person's carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule. 1. The point was clearly explained by Walsh J in Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288; [1973] HCA 40 (at 307, emphasis added, citation omitted): The requirement of reasonableness with reference to the interests of the parties and that of reasonableness with reference to the interests of the public are to be regarded, in my opinion, as raising distinct questions. That has been laid down in many cases of high authority. But it does not mean, in my opinion, that in dealing with the first of those questions, no element of public policy is involved. It is public policy which lies at the root of the rule that agreements in restraint of trade are, prima facie, unenforceable. … [I]f a restraint is imposed which is more than that which is required (in the judgment of the court) to protect the interests of the parties, that is a matter which is relevant to the considerations of public policy which underlie the whole doctrine, since to that extent the deprivation of a person of his liberty of action is regarded as detrimental to the public interest. 1. The italicised sentence was quoted and approved by four members of the High Court in Peters (WA) v Petersville Ltd at [27]. In that case the High Court rejected an argument that contracts which absorb the capacity of a covenantor, rather than sterilise it, were outside the restraint doctrine: at [34]-[37], [52]. The joint judgment regarded that argument as turning on whether there was some countervailing public policy so significant that it meant that the general rule of striking down restraints of trade unless they can be justified should be overridden. 2. It is "no doubt true that there is a public interest in the resolution of disputes": Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16 at [52]. That public interest encompasses both strands identified above at [5], namely favouring the upholding the settlement of disputes and facilitating the resolution of disputes about restraints of trade. But that public interest is not so strong as necessarily and always to override the public policy requiring restraints of trade to be justified. Parties cannot override that public policy by agreement; that is the very point of the doctrine. If they cannot do it in their first agreement, there is no reason they should necessarily be able to do so in a second agreement resolving some dispute about the first. Thus an exclusion of the doctrine altogether – whether for all settlement agreements (the first approach) or even just those involving disputes about restraints (the second approach) – is not justified. 3. Further, to take the third approach – adopted in Properties Northside – of conclusively presuming that the agreement is reasonable as between the parties still insufficiently recognises the public purpose underlying the general rule. Although it would still be open to argue that the restraint was contrary to the public interest, there is force in the view expressed in an eminent text some years ago that often little more than lip service is paid to this requirement once it is established that a restraint is reasonable as between the parties: DW Grieg and JLR Davis, The Law of Contract (Law Book, 1987), 1108. And, as explained, the requirement of being reasonable between the parties itself manifests public policy reaching beyond the concerns of the parties themselves. An unreasonable restraint disadvantages not only the restrained party but also the community insofar as it is denied the competitive benefit of the person being able to carry out their trade. 4. The fourth approach, involving some degree of reversal of the burden of proof or persuasion, is closer to an acceptable balance of the competing considerations, at least in cases where the original dispute was about a restraint of trade. If it was not, then the public interest in resolving disputes simpliciter is no more of a trump than it is for any other relevant interest. 5. In order to address the merits of this approach it is necessary to clarify a distinction between burdens of proof and persuasion. Insofar as the issue is just the onus of proof, whether legal or evidential, it relates to proof of facts: see eg R v S (Stephen Paul) [2006] 2 Cr App R 23; [2006] EWCA Crim 756 at [20] (CA); JD Heydon, Cross on Evidence (LexisNexis, 13th edition), [7001]; see also, by way of illustration, MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [35], [39], [60]. Thus "onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion": Robins v National Trust Co Ltd [1927] AC 515 at 520 (PC). 6. The difference between the legal onus of proof and an evidentiary onus (as opposed to a "tactical" one) is that the latter involves an obligation to show that there is sufficient evidence to raise an issue such as to require determination; once that has been done, it falls to the party bearing the legal onus to make out the relevant facts: note eg discussion C R Williams, "Burdens and Standards in Civil Litigation" (2003) 25 Syd Law Review 165 at 166-169; Cross on Evidence at [7005] and [7210]; Commissioner of Police v Zisopoulos (2020) 299 IR 314; [2020] NSWCA 236 at [61]-[62], [74]-[75], [96]-[99]. 7. Issues of legal characterisation or evaluation arise for consideration after the facts have been found. For such issues, one side or the other may bear the burden of persuasion in the sense that if the court is not persuaded that some particular conclusion should be reached then the side bearing the burden of persuasion loses on the point: note eg Maloney v The Queen (2013) 252 CLR 168; [2013] HCA 28 at [355]. To speak of an evidentiary onus is suggestive of a focus just on facts. To speak of a presumption one way of the other – as was done in World Wide Fund – is no doubt to cast the burden of both proof and persuasion on the party who must rebut the presumption. 8. In the context at hand, to address only onus of proof does relatively little to move the dial one way or the other, as it merely relates to fact-finding. On the other hand, to shift the persuasive burden to a covenantor as regards what is reasonable between the parties – in other words, to presume that a restraint is reasonable in that sense unless the Court is persuaded to the contrary – may be seen to move the dial too much, undervaluing the important public policy against restraints of trade. 9. A preferable way of approaching the issue is to treat the settlement of a dispute about a restraint of trade as of itself a legitimate interest to which a restraint may be directed. That interest may be additional to any other legitimate interest of the covenantee, the subject of the first restraint of trade. A restraint imposed in such a situation is still subject to the general rule requiring justification, and with the usual principle as to the onus of proof and persuasion applying. However, part of the analysis will then be whether the restraint was reasonable as between the parties, and not contrary to the public interest, taking account of the legitimate interest of the covenantee in being able to resolve disputes with some degree of certainty. Some restraints which might otherwise have been unenforceable might survive scrutiny because it was a reasonable means of resolving the prior dispute. Others may be so excessive, in all the circumstances, that even given that consideration it cannot be justified. 10. We would only apply this approach to settlements of disputes involving controversy about a restraint of trade. If the first agreement did not involve restraints then there is little reason to say that a subsequent agreement which for the first time imposes some restraint should not be subject to conventional legal scrutiny. 11. In this case, at noted by White JA at [110], the prior dispute did not relate to the validity of restraints of trade. That being so, in our view there is no occasion to apply some distinctive approach and the restraints here fall to be justified in the ordinary way. Even so, for the reasons referred to by White JA at [123]-[128], the restraints were reasonable as between the parties and not contrary to the public interest taking account of all the circumstances. 12. WHITE JA: This is an appeal from orders of the Common Law Division (Schmidt AJ) in proceedings brought by the respondent, Ford Motor Company of Australia Ltd ("Ford") against a company, Tallevine Pty Ltd ("Tallevine") and its sole director and shareholder, Mr Ian Creak (Ford Motor Company of Australia Ltd v Tallevine Pty Ltd (as trustee for Thornleigh Trading Trust) (in liq) [2022] NSWSC 83). 13. From late 2010 until 19 February 2014, Tallevine was an authorised Ford dealer for the marketing, sale and service of Ford vehicles, and parts and accessories, marketed in Australia under the trademarks or business names registered or owned by Ford or any of its related bodies corporate. It was so appointed under a Dealer Agreement, which is undated but commenced in 2010. 14. Tallevine operated its business from premises located on Pennant Hills Road, Thornleigh. 15. On 20 May 2014, Ford commenced proceedings in the County Court of Victoria against Tallevine. Ford alleged that the Dealer Agreement had been terminated on 19 February 2014 pursuant to a confidential settlement agreement between the parties entered into on 21 October 2013. Ford alleged that the termination of the Dealer Agreement constituted a revocation of Tallevine's approval by Ford to use any "Trade Mark" (as defined in the Dealer Agreement). It sought an order for specific performance of Tallevine's obligations under certain clauses of the Dealer Agreement. It alleged that, within 14 days after termination of the Dealer Agreement, Tallevine had been required to remove from its premises all signs indicating that it was an authorised Ford dealer for any Ford Marketed Product (as defined) and including the name Ford, and bearing or including any of the Trade Marks (as defined). It also sought to enforce other provisions of the Dealer Agreement applicable from termination of the Dealer Agreement, including a term requiring Tallevine to discontinue advertising itself as an authorised Ford dealer and discontinuing the use of any Trade Marks. Ford sought an injunction restraining Tallevine from displaying signage and using Trade Marks, one of which was the name Ford in a device as depicted below: 1. The other was the following Trade Mark: 1. By its Defence, Tallevine admitted to having entered into a settlement agreement on 21 October 2013 but denied that it was binding. This was on the grounds that Ford had breached that agreement in unreasonably failing to extend the sale period provided in that agreement and had engaged in unconscionable conduct. It also alleged that the settlement agreement had been entered into under economic duress. It brought a counter-claim which fleshed out the allegations of economic duress. Its counter-claim asserted that, by letter dated 9 September 2013, Ford purported to give notice of its intention to terminate the Dealer Agreement, alleging certain breaches by Tallevine and Mr Creak unless those breaches were remedied. It alleged that Ford required Tallevine to have certain convictions that had been recorded against Mr Creak and Tallevine in the Local Court of New South Wales on 28 August 2013 overturned or quashed on appeal, or finally dismissed, within 30 days (that is by 9 October 2013). 2. Mr Creak pleaded that neither Tallevine nor he was in breach of the Dealer Agreement and that the findings of the Local Court were demonstrably erroneous and appellable. He pleaded that Ford agreed to extend the period for having the findings overturned until 21 October 2013 which deadline was practicably impossible to meet. He pleaded that the convictions were overturned in the District Court in or about November 2014. 3. Prior to a mediation of those claims, Mr Creak served a draft Statement of Claim proposed to be filed in the Federal Court that asserted breaches by Ford of the Trade Practice (Industry Codes) Franchising Regulations 1998 (Cth) in withholding its consent to the transfer of Tallevine's business to Maximotion Pty Ltd (which later changed its name to Fleet Serv Pty Ltd ("Fleet Serv") (J [10(4)])). 4. The claims and counter-claims in the Victorian County Court proceedings were settled by a deed of settlement made on 16 September 2015. The construction of that agreement and the validity of its restraint provisions are the central issues in this appeal. It is convenient to set out the relevant terms at the outset. 5. The parties to the deed were Tallevine, Mr Creak, and Ford. 6. Clause 2.1(a) provided: "2.1 Consent Orders (a) Ford will within 7 business days of the execution of this Deed file and serve on Tallevine a statement of claim in the Supreme Court of Victoria or the Supreme Court of New South Wales (Supreme Court) that is substantively identical to the amended statement of claim dated 6 March 2015 filed in the [County Court] Proceeding (Supreme Court Proceeding)." 1. Clause 2.1(b) and (c) provided that Tallevine would file an appearance and the parties would submit final orders to be made by consent by the Supreme Court in the form of attached Minutes and would cooperate with each other in requesting the Supreme Court to make the consent orders. 2. Clause 2.2(a) provided: "2.2 Creak's undertakings (a) Creak hereby undertakes to Ford that he and any Related Entity of him will not engage in any of the conduct the subject of the attached Minutes." "Related Entity" was defined widely. 1. Ford undertook to consider any application made to it by a person to be appointed as an authorised Ford dealer at the Pennant Hills premises. It undertook to pay Tallevine $100,000 if it had not appointed a person to be an authorised Ford dealer at the premises by 31 January 2016 (cl 2.3). 2. The deed provided for mutual releases. Clauses 3.1, 4.1 and 5.1 provided: "3.1 Release by Tallevine and Creak Tallevine and Creak hereby release Ford and each of Ford's Related Entities from any Claim arising from or connected with: (a) the Dispute or any part of it; and (b) the circumstances or allegations giving rise to or referred to in the Dispute or any part of it; and (c) all Claims in respect of amounts alleged to be owing by Ford to Tallevine under or in connection with the Dealer Agreement; and (d) any other Claim which is or could reasonably have been known to a party as at the date of this Deed, whether or not the Claim is known to a party, and whether or not the Claim arises from or is connected with the Dealer Agreement. … 4.1 Covenant by Tallevine Tallevine and Creak will not bring or pursue, or procure that a third party bring or pursue, a Claim against Ford or any of Ford's Related Entities in respect of any matter which is the subject of a release under clause 3.1. … 5.1 Indemnity from Tallevine and Creak Tallevine and Creak must indemnify Ford and each of Ford's Related Entities against any loss or liability arising from or connected with: (a) a breach by Tallevine or Creak of clause 4.1; and (b) a Claim brought by a Related Entity of Tallevine or Creak against Ford or one of Ford's Related Entities in respect of any matter which is the subject of a release under clause 3.1." 1. The "Dispute" was defined as the dispute between Ford and Tallevine the subject of the County Court proceeding including Tallevine's counter-claim in that proceeding. 2. Clause 9 provided: "9 Entire Agreement This Deed contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersedes all earlier Conduct by or between the parties in connection with its subject matter. Neither party has relied on nor is relying on any other Conduct in entering into this Deed and completing the transactions contemplated by it." 1. The deed was governed by the laws of Victoria (cl 15). 2. The Minute of Consent Orders attached to the deed are set out as an appendix to these reasons. Appendix A (6289441, pdf) The reference in those orders to the defendant is to Tallevine. The reference to the plaintiff is to Ford. 3. The orders required Tallevine to take positive steps as specified in orders 1, 2 and 3 and restrained Tallevine from engaging in the conduct specified in orders 4, 5, 6, 7, 8, 9, 11 and 12. Mr Creak relies on order 10. It is convenient to quote orders 4, 6, 7, 8, and 10 at this point. "4. The defendant is immediately restrained from advertising, distributing, supplying, offering for sale and selling motor vehicles, motor vehicle parts or accessories or any other goods or services under or by reference to the following signs (Ford Signs), or any sign which is substantially identical to or deceptively similar to any of the Ford Signs, or authorising or procuring or inducing any person to do so: (a) the word FORD (subject to paragraph 10 below); (b) the following word and device: (c) the word RANGER (subject to paragraph 10 below); (d) the words MYFORD FINANCE; (e) the words GO FURTHER. … 6. The defendant is immediately restrained from applying to register any business name, company name, domain name or trade mark which contains any of the Ford Signs or Ford Raptor Signs or any sign which is substantially identical to or deceptively similar to any of the Ford Signs or Ford Raptor Signs, including the name PENNANT HILLS FORD and PENNANT HILLS RAPTOR, or authorising or procuring or inducing any person to do so. 7. The defendant is immediately restrained from advertising, distributing, supplying, offering for sale or selling: (a) motor vehicle parts or accessories bearing any of the Ford Signs or Ford Raptor Signs that are not manufactured by or with the authority of the plaintiff or its related bodies corporate; or (b) motor vehicles fitted with any motor vehicle parts or accessories referred to in sub­paragraph (a) above. 8. From 17 September 2016, the defendant is restrained from advertising, distributing, supplying, offering for sale and selling motor vehicles, motor vehicle parts or accessories or any other goods or services under or by reference to the following signs (Ford Raptor Signs), or any sign which is substantially identical to or deceptively similar to any of the Ford Raptor Signs, or authorising or procuring or inducing any person to do so: (a) the word RAPTOR (subject to paragraph 10 below); (b) the following word and device: … 10. Nothing in these orders prevents the defendant from: (a) describing its business as "Pennant Hills Auto Traders" with the description "Specialising in importing Raptor and F Series vehicles from the United States", provided that the words RAPTOR and F SERIES are in the same size and style of font as the rest of the description; (b) using the words FORD, RANGER and RAPTOR in good faith to describe the vehicles that the defendant is offering for sale." 1. The proceeding contemplated by the deed was commenced in the Supreme Court of New South Wales. Orders in accordance with the Minutes attached to the deed were made on 28 October 2015. 2. On 10 March 2017, Ford filed a Summons in fresh proceedings charging Tallevine with being in contempt of the orders of 28 October 2015. On 7 August 2017, Tallevine filed a cross-claim in those proceedings by which it alleged that Ford had repudiated the deed of settlement of 16 September 2015, or that it had validly rescinded that deed for misrepresentation by Ford or for mistake. It contended that, by reason of the termination or avoidance of the deed, the consent orders entered pursuant to the deed should be set aside. It also reagitated allegations in connection with the first settlement agreement of 21 October 2013 and claimed that Ford had repudiated and unlawfully withheld from it the benefit of the Dealer Agreement. 3. Tallevine was ordered to provide $150,000 as security for costs of its cross-claim. It provided the security on 12 January 2018. On 29 September 2020, Ford's application for Mr Creak to be joined to those proceedings was refused (Ford Motor Company of Australia Ltd v Tallevine Pty Ltd (as Trustee for the Thornleigh Trading Trust) [2019] NSWSC 1914 at [125]). On 12 April 2021, Tallevine went into members' voluntary liquidation. On 31 May 2021, its cross-claim was dismissed. On 20 September 2021, Fagan J assessed the costs of the cross-claim at $295,000. His Honour ordered payment of the $150,000 Tallevine had given as security for costs to Ford (Ford Motor Company of Australia Ltd v Tallevine Pty Ltd (in liq) [2021] NSWSC 1192 at [7], [9]). Ford did not pursue its contempt proceeding against Tallevine after it was wound up. 4. Prior to this, on 24 May 2019, Ford had commenced new proceedings against Tallevine and Mr Creak. After Tallevine was wound up, the proceeding continued against Mr Creak alone. It is the judgment in those proceedings that is the subject of this appeal. In those proceedings, it was alleged and admitted that, on or about 30 June 2017, Tallevine sold its business to Fleet Serv. It was alleged and admitted that, from the sale date, Fleet Serv had been under the exclusive control and direction of Mr Creak and had carried on, and was continuing to carry on, Tallevine's business from the Pennant Hills premises. It was alleged that Fleet Serv was using domain names and websites including "www.raptor4wd.com" and "www.phauto.com.au". After pleading the terms of the deed of 17 September 2015, Ford alleged that any conduct engaged in by Tallevine in breach of the consent orders attached to the deed and made by the Court on 28 October 2015 was also a breach of the deed by Mr Creak, and any conduct engaged in by Fleet Serv after 10 October 2016, which the orders restrained Tallevine from doing, was a breach of the deed by Mr Creak. 5. The defendants denied that that was the effect of the deed, but said in the alternative: "17… (c) in the alternative say that, if the Deed has the effect alleged in paragraph 17(b) of the SOC: i. it is in restraint of trade within the meaning of s. 4(1) of the Restraints of Trade Act 1976 (NSW);and ii. Further that Ford Australia manifestly failed to attempt to make that restraint of trade reasonable within the meaning of s. 4(3) of the Restraints of Trade Act 1976 (NSW) when it procured and executed the Deed." 1. The issues in the appeal primarily concern the proper construction and validity of the deed of 16 September 2015. There are also issues concerning the asserted liability of Mr Creak for costs ordered against Tallevine in respect of its cross-claim in the 2017 proceedings which was not pursued after Tallevine was wound up. 2. On about 31 January 2016, Ford paid the sum of $100,000 to Tallevine pursuant to cl 2.3(b) of the deed. 3. As recorded by the primary judge (at J [20]), Mr Creak admitted the following facts: "Businesses of Tallevine and Fleet Serv 16. Tallevine carried on business as a motor dealer from premises located at 242 and 252 Pennant Hills Road, Thornleigh NSW 2120 up to a date no earlier than on or about 30 June 2017. 17. Tallevine has the following registered business names: (a) RAPTOR SVT - from 17 February 2015; (b) RAPTOR 4x4 - from 4 March 2014; (c) Pennant Hills Auto Traders - for the period 16 December 2015 to 28 July 2017. 18. Tallevine carried on business using the domain names and websites 'www.raptor4x4.com.au' and 'www.phauto.com.au' up to on or about 30 June 2017. 19. Fleet Serv carries on business as a motor dealer from premises located at 242 and 252 Pennant Hills Road, Thornleigh NSW 2120. 20. Fleet Serv has the following registered business names: (a) C.A.R.S AUTOHAUS - from 30 June 2017; (b) PENNANT HILLS AUTO TRADERS - from 30 June 2017; (c) Fleet Serv - from 15 October 2015. 21. Fleet Serv carried on business using the domain name and website 'www.raptor4wd.com' from on or about 30 June 2017 to no earlier than 11 May 2019. 22. Fleet Serv has, since on or about 30 June 2017, carried on and is continuing to carry on business using the domain name and website 'www.phauto.com.au'. 23. Fleet Serv is carrying on business using the domain name and website 'www.dieselauto.com.au'. Domain names 24. Tallevine and Mr Creak did not instruct their IT service provider, Printwell, to transfer the domain names 'phford.com.au', 'pennanthillsford.com.au', 'raptor4x4.com.au', 'rangerraptor.com.au' and 'raptorsvt.com.au' to Ford until April 2017. 25. The domain names were not transferred to Ford until 11 December 2017. 26. On or about 28 June 2017, Mr Creak procured the registration of the domain name raptor4wd.com in the name of Gavin Cox. 27. Gavin Cox has at all material times been an employee of AdTorque Edge. 28. AdTorque Edge has at all material times been the IT Service provider for Tallevine and Fleet Serv. Trade Mark application no. 1719737 29. On 6 April 2017, Trade Mark application no. 1719737 lapsed. 30. On 17 January 2018, Tallevine and Mr Creak procured the lodgement of an application with IP Australia to extend time in respect of, and thereby revive, Trade Mark application no. 1719737. 31. On 27 April 2018, Tallevine and Mr Creak procured the lodgement of a further application with IP Australia to extend time in respect of, and thereby revive, Trade Mark application no. 1719737. 32. The applications lodged on 17 January 2018 and 27 April 2018 were a step in the application to register Trade Mark application no. 1719737. Vehicles advertised for sale and sold by Tallevine and Fleet Serv 33. From 28 October 2015 to 30 June 2017, Tallevine offered for sale or sold motor vehicles under or by reference to the word FORD and using brochures created by Ford, via the website 'www.raptor4x4.com.au'. 34. From 28 October 2015 to on or about 9 January 2017, Tallevine used the Blue Oval Device to advertise its 'Fleet and Government Sales' via the website 'www.phauto.com.au'. 35. From 28 October 2015, to on or about 30 June 2017, Tallevine advertised, offered for sale and/or sold motor vehicles with grilles bearing Ford Signs or Ford Raptor Signs that were not manufactured by or with the authority of Ford or its related bodies corporate, including being the motor vehicles particularised in paragraph [37] of the SOC. 36. From 17 September 2016 to on or about 30 June 2017, Tallevine advertised and offered for sale motor vehicles under or by reference to the Ford Raptor Signs, including via the websites 'www.gumtree.com.au' and 'www.tradeuniquecars.com.au'. 37. Since on or about 30 June 2017, Fleet Serv has advertised, offered for sale and/or sold motor vehicles with grilles bearing Ford Signs or Ford Raptor Signs that were not manufactured by or with the authority of Ford or its related bodies corporate, including being the motor vehicles particularised in paragraph [52] of the SOC. 38. Since on or about 30 June 2017, Fleet Serv has advertised and offered for sale motor vehicles under or by reference to the Ford Raptor Signs, including via the 'www.gumtree.com.au' and 'www.tradeuniquecars.com.au'. Website content 39. From 17 September 2016 to 30 June 2017, the domain name 'raptor.4x4.com.au' contained the word 'RAPTOR'. 40. From 17 September 2016 to 30 June 2017, the website 'www.raptor.4x4.com.au' contained: (a) the word 'RAPTOR' in the URL; (b) the statement 'Raptor is the special vehicle division of Pennant Hill Auto Traders'. 41. From 17 September 2016 to on or about 9 January 2017, the website 'www.raptor4x4.com.au' contained the name 'Pennant Hills Raptor' and a logo which incorporated the word 'Raptor'. 42. Between 28 October 2015 and 30 June 2017, the website 'www.raptor4x4.com.au' did not contain either of the statements in Order 1(e)(i) and (ii). 43. From 28 October 2015 to 30 June 2017, the website 'www.raptor4x4.com.au' contained the statements pleaded in paragraphs [24] and [43] of the SOC. 44. From on or about 30 June 2017 to at least 11 May 2019, the website 'www.raptor4wd.com' contained the statements pleaded in paragraphs [58], [60] and [62] of the SOC. 45. From on or about August 2020, the website 'www.phauto.com.au' has contained the statements pleaded in paragraphs [58], [60] and [62] of the SOC, or statements to similar effect. 46. Fleet Serv is publishing the statements pleaded in paragraphs [58], [60] and [62] of the SOC on the website 'www.dieselauto.com.au'." 1. Paragraphs 24, 37, 43, 52, 58, 60 and 62 of the Statement of Claim (referred to at [35], [37], [43] and [44]-[46] quoted at [59] above) alleged: "24. In breach of Order 1(e)(iii), Order 12(a) and Order 12(d), in the period from 28 October 2015 to 30 June 2017, Tallevine published the following statements: a. 'We are now part of a specialty vehicle manufacturer group (SVM) authorized to enhance F series trucks, Ranger, Hilux, Navara and Amrok we exceed most manufacturers standards on enhancement quality' [sic]; b. 'Our Ford Rangers and Ford F Series can be serviced throughout the Ford dealer network'; c. 'The vehicles produced by Raptor can only be retailed to the public through the exclusive dealership base ... Ford Ranger and F Series vehicles are serviceable and warrantable through any of the corresponding dealers in the Australia' [sic]. Particulars The statements appeared on Tallevine's website home page at http://www.raptor4x4.com.au and the 'About Us' page of Tallevine's website at http://www.rapotor4x4.com.au/about-us. … 37. In breach of Order 7(b), from 28 October 2015 to 30 June 2017, Tallevine offered for sale and/or sold motor vehicles fitted with motor vehicle parts or accessories bearing Ford Signs or Ford Raptor Signs that were not manufactured by or with the authority of Ford Australia or its related bodies corporate. Particulars The motor vehicles identified by Ford Australia as being has offered [sic] for sale or sold by Tallevine include but are not limited to the following. i. Tallevine offered for sale, at its principal place of business, a motor vehicle described as a PX Ranger Dual Cab P/UP XLS 4x4 (PX Ranger XLS) which was fitted with a grille bearing the word 'Ford'. ii. Tallevine offered for sale, via www.gumtree.com.au: A. a motor vehicle described as a '2015 Ford Ranger PX Mkll XLT 3.2 (4x4) Cool White 6 Speed Manual Cab Utility', fitted with a grille bearing the word 'Ford'. B. a motor vehicle described as a '2015 Ford Ranger PX XLT 3.2 Hi-Rider (4x2) Black 6 Speed Automatic Super Cab Pick-up', fitted with a grille bearing the word 'Ford'. iii. Tallevine offered for sale, via www.tradeuniquecars.com.au: A. a motor vehicle described as a 'Ford Ranger Raptor Trophy Truck'; B. a motor vehicle described as a 'Ford Ranger XLT Raptor'; and C. a motor vehicle described as a 'Ford Ranger Raptor'. iv. Tallevine offered for sale, via www.raptor4x4.com.au: A. a motor vehicle described as a '2015 Ford Ranger XLT 3.2 Hi-Rider 4x2'; and B. a motor vehicle described as a '2016 Ford Ranger PX MKll'. v. Each of the vehicles identified above has grilles fitted to them that were not manufactured by or with the authority of Ford Australia or its related bodies corporate. Further particulars will be provided following the issuing of Notices to Produce, Subpoenas, the completion of discovery or service of evidence. … 43. In breach of: a. Order 11(a), from 28 October 2015 to 30 June 2017 Tallevine made a representation which suggested that it had a Raptor franchise granted by Ford Australia; Particulars Tallevine's website at 'www.phauto.com.au' referred to a 'Franchise showroom' and displayed an icon with the word 'RAPTOR'. b. Order 11(b), from 28 October 2015 to 30 June 2017 Tallevine made the following representations: i. 'Our F Series trucks are ordered direct from the factory in the US for customization and conversion ...'; and ii. 'Additionally, Raptor can also receive Australian delivered vehicles directly from the dealer network', which suggested that Tallevine or its business was sponsored by, approved by or affiliated with Ford Australia or its related companies; Particulars i. http://www.raptor4x4.com.au/ ii. http://www.raptor4x4.com.au/about-us c. Order 11(c), from 28 October 2015 to 30 June 2017 Tallevine represented that it offers '... Ford Trained Master technicians for peace of mind trouble free maintenance', which suggested that Tallevine's services were those of, or are approved by, Ford Australia or its related companies. Particulars i. http://www.raptor4x4.com.au/ ii. http://www.raptor4x4.com.au/about-us d. Order 11, Tallevine's website at www.raptor4x4.com.au: i. from 28 October 2015 to 30 June 2017 contained the word RAPTOR which appeared in the content of the website including: A. two prominent uses of the name 'Pennant Hills Raptor'; B. the statement 'Raptor is the special vehicle division of Pennant Hill Auto Traders', on the 'About Us' page of Tallevine's website at http://www.rapotor4x4.com.au/about-us; ii. contained, from 28 October 2015 until on or about 9 January 2017, a logo at the top of the page headed 'Pennant Hills Raptor' which incorporated one of the Ford Raptor Signs. … 52. Since on or about the Sale Date, Fleet Serv has and is continuing to offer for sale or is selling motor vehicles fitted with motor vehicle parts or accessories bearing Ford Signs or Ford Raptor Signs that are not manufactured by or with the authority of Ford Australia or its related bodies corporate; Particulars The motor vehicles identified by Ford Australia as being offered for sale or sold by Fleet Serv include but are not limited to the following: i. A motor vehicle described as a 'Brand New' Ranger Raptor MY18 3.2L Turbo Diesel Automatic. ii. A motor vehicle described as a 'new' 2017 Ford Ranger Raptor XLS. iii. A motor vehicle described as a 'new' 2016 Ford Ranger XL SPX Mkll Auto 4x4 Double Cab. … 58. Since on or about the Sale Date, Fleet Serv has made, and continues to make, representations which suggest that it or its business is sponsored by, approved by or affiliated with Ford Australia or its related companies, as follows: a. 'Our F series trucks are ordered direct from the factory in the USA for customisation and conversation ...'; and b. 'The venture as a new dealer with Ford has proved our ability to provide high volume sales with unmatched customer service retention.' Particulars The statements appear on the 'About Us' pages of Fleet Serv's websites at http://www.rapotor4wd.com [sic] and http://www.phauto.com.au. Further particulars may be provided following the issuing of Notices to Produce, Subpoenas, the completion of discovery or service of evidence. … 60. Since on or about the Sale Date, Fleet Serv has made, and continues to make, representations which suggest that Fleet Serv's goods or services are those of, or are approved by, Ford Australia or its related companies, as follows: a. 'Our Ford Rangers and Ford F Series can be serviced throughout the Ford dealer network'; b. 'Ford Ranger ... vehicles are of course serviceable and warrantable through any of the corresponding dealers in the Australia' [sic]; and c. ' ... with Ford F Series and Ford Ranger at Thornleigh we offer Ford Trained Master technicians for peace of mind trouble free maintenance'. Particulars The statements appear on the 'About Us' page of Fleet Serv's website at http:llwww.rapotor4wd [sic]. Further particulars may be provided following the issuing of Notices to Produce, Subpoenas, the completion of discovery or service of evidence. … 62. Since on or about the Sale Date, Fleet Serv has been publishing the following statements: a. 'Our Ford Rangers and Ford F Series can be serviced throughout the Ford dealer network'; b. 'Ford Ranger ... vehicles are of course serviceable and warrantable through any of the corresponding dealers in the Australia' [sic]." 1. The primary judge found the following facts: "[10] In summary, I am satisfied that the evidence established that: (1) It was without Ford's authority that Tallevine first began manufacturing and selling a range of "Raptor" branded accessories and parts for Ford vehicles in 2012, while it was an authorised Ford dealer. It then also began offering for sale Ford vehicles which it had fitted with "Raptor" enhancements. Those vehicles bore the trademarked Ford name and badge and in the case of Ranger vehicles, the trademarked Ranger name, as well as the Raptor name which Tallevine affixed. That name was styled in a way which Ford complained was deceptively similar to the name affixed to Ford Raptor vehicles on manufacture by its related companies overseas. (2) Much of the parties' resulting dispute concerned Tallevine's continued "raptorising" of both Ford F series trucks, which Ford did not import into Australia, and of Ford Ranger vehicles, which it did. That continued even after the termination of Tallevine's dealership, the parties' 2015 settlement and the eventual sale of the business to Fleet Serv Pty Ltd. (3) Ford terminated Tallevine's dealership agreement after Mr Creak was convicted in the NSW Local Court of offences under the Motor Dealers Act 1974 (NSW) (repealed), The Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)), the Fair Trading Act 1987 (NSW), and the Crimes Act 1900 (NSW), which included odometer tampering. Some of those convictions were later overturned and the other charges were then withdrawn. (4) Despite this, Ford was not prepared to enter another dealership agreement with Tallevine or with other companies with which Mr Creak was involved, including Maximotion Pty Ltd, now known as Fleet Serv Pty Ltd. The result was a dispute which was resolved without litigation in October 2013, when Ford and Tallevine entered their first settlement agreement. This was how Tallevine ceased being an authorised Ford dealer. (5) The first agreement did not resolve the ongoing dispute about Tallevine continuing to "raptorise" Ford vehicles, accessories and parts. The result was the County Court proceedings which Ford brought. They were settled in mediation in 2015 by a second settlement agreement, reflected in the deed and the consent orders later made by this Court, breach of which are in issue in these proceedings. (6) Ford was still then not prepared to enter into another dealership agreement with Tallevine, or with other companies in which Mr Creak was involved. (7) The background to the 2015 settlement and Ford's attitude included that: (a) Ford did not manufacture vehicles in Australia but imported those manufactured by Ford Motor Company (USA) and other Ford companies overseas, which it sold by wholesale to its authorised dealers. (b) Ford had dealership agreements of the kind it once had with Tallevine with those dealers. They sold those new vehicles by retail under that agreement. They and other dealers, including Tallevine could also sell used Fords, as well as Ford vehicles imported by third party importers. (c) That was because Ford did not import all Ford vehicles manufactured overseas, including Raptor versions of Ford F series trucks. Such trucks were then, however, imported by third party importers and sold here by various Australian dealers, including Tallevine. (d) At that time no Raptor versions of Ford Rangers were being manufactured, but Ford did import Ranger vehicles which its dealers sold. (e) On Mr Creak's evidence there was a market for Raptor Ford vehicles here. Raptor Fords were advertised in magazines and on websites which he described monitoring in order to observe this market and to ascertain what price and style of vehicles were being offered for sale by other dealers. (f) On Mr Creak's evidence the Raptor version of the F series trucks attracted a luxury car tax on import, with the result that Tallevine did not tend to purchase them from third party importers. Instead, it bought F series trucks from those dealers which it then "raptorised" itself and offered for sale. It also "raptorised" Ford Ranger vehicles which, after the termination of its dealership agreement, it had to purchase from other Ford authorised dealers, rather than direct from Ford. It then sold such vehicles as new despite Ford's objections, with the result that it took steps under its dealership agreements, to stop other dealers providing Rangers to Tallevine to sell as new. (g) Despite Ford's objections, even after the termination of its dealership agreement, Tallevine continued to suggest in various ways that it had a continuing connection with Ford and to sell "raptorised" parts, accessories and Ford F series trucks, and Rangers. (8) The 2015 settlement ought to have settled the parties' dispute over what Tallevine was so doing, because it agreed to cease. But even afterwards it and later Fleet Serv not only continued to suggest a connection with Ford, but also to sell "raptorised" Ford F series trucks, Rangers, parts and accessories, in breach of the terms of the deed and the orders and despite Ford's ongoing objections. At the relevant times Mr Creak was the sole director and shareholder of both companies and bound by the deed, which should have precluded this. (9) Underlying Ford's ongoing objections was that when manufactured all Ford vehicles, including Ford Raptor vehicles, bear both the trademarked "Ford" name and blue oval device containing that name, which Mr Creak called its "badge" and which was also referred to as a "rondelle". When manufactured Ford Rangers also bear the trademarked "Ranger" name and Ford Raptors, the trademarked "Raptor" name. Those names are each styled in a particular way. (10) Ford's objections to Tallevine's use of the trademarked names and badge rested in part on provisions of the Trade Marks Act 1995 (Cth) which regulated use of trade marks, as well as use by an "authorised user", which Tallevine claimed to be: s 8. Section 26 permits authorised users to use trade marks and bring proceedings for their infringement. Tallevine had no such rights, as the 2015 deed acknowledged. (11) Ford USA and Ford Canada, another subsidiary, owned the various marks and the Ford badge in issue, but Tallevine was only ever authorised to use them under the dealership agreement. A third party, a Japanese company Hino then held the Raptor SVT trademark in Australia. Other vehicle manufacturers also produced Raptor vehicles. (12) It was in 2015 that Ford USA lodged an application for Australian registration of the marks "Ford Ranger Raptor" and "Ranger Raptor". Tallevine also lodged an application for registration of the "RAPTOR" name just before the 2015 settlement, but it was not obtained. Tallevine had earlier sought authorisation to use the Raptor name from Hino, but that had also not been obtained. Tallevine allowed its 2015 trademark application to lapse after the settlement. It later unsuccessfully sought to pursue its application, that being opposed by Ford and Hino. (13) In 2018 Ford announced that it was going to import a range of Ford Ranger Raptor trucks, which Ford USA had commenced producing. In these proceedings Mr Creak complained that thereby Ford had sought to sell the very product he had developed. (14) Ford did license other third parties, under an established protocol, to produce accessories and other products for Ford vehicles, including grills [sic] which bore Ford trademarks, but neither Tallevine, Mr Creak nor Fleet Serv were so licensed. Mr Creak's only conceivable authority to use the marks arose under the deed, which envisaged limited use by Fleet Serv. (15) Ford considered that accessories and grills [sic] which used Ford trademarks, including the Raptor mark, which were not manufactured by agreement under its protocol to be counterfeit and took steps to protect its brand against such misuse. They included the proceedings Ford brought against Tallevine in the County Court, for contempt in this Court and these proceedings. (16) In the County Court, Ford had pursued its objection to Tallevine's use of Ford trademarks; of its continuing use of the "Ford" and "Raptor" names after the dealership was terminated to suggest an ongoing connection with Ford; as well as to it offering the Ford vehicles it had "raptorised" for sale as new. It considered that Tallevine was not only misusing intellectual property, but involved in passing off and breach of the dealership agreement, relevant terms of which survived its termination, as well as breach of various statutes. (17) The 2015 settlement accepted that Ford had a basis for its objections to what Tallevine had been doing, which Tallevine and Mr Creak agreed would cease. Despite this, after the settlement Tallevine and later Fleet Serv, after it acquired Tallevine's business in 2017, continued the "raptorising" which Ford considered breached both the orders in Tallevine's case and the deed in Mr Creak's. It was in 2017 that Ford thus brought contempt proceedings in this Court against Tallevine and in 2019, these proceedings against Mr Creak." 1. The appellant submitted that the primary judge erred in finding [at 10(1)] that there was any dispute concerning "raptorisation" of vehicles prior to entry into the settlement deed. ("Raptorisation" refers to the fitting of accessories including grilles, wheels and decals to present a lower performance standard vehicle as a higher performance vehicle sold under Ford's 'Raptor' line.) Tallevine commenced manufacturing and selling its range of "Raptor" branded accessories and parts for Ford vehicles when it was still an authorised Ford dealer. It says there was no complaint from Ford about that at the time. Ford Motor Company (USA) ("Ford USA") manufactured its own range of Ford Raptor F Series trucks but these were not imported or distributed in Australia by Ford. At the time, Raptor models of Ford Ranger trucks were not in production. On 29 May 2013, a Mr Geoff Atkinson, Dealer Sales and Development Manager for the "Eastern Region" of Ford, advised Mr Creak regarding "…the Raptor name plate which you are using for your dressed up Ranger". Mr Atkinson said that: "…it is great you have taken the initiative on doing this, but I want you to be aware that the Raptor name is a registered trade mark by Hino Motors Ltd. We would suggest that you review using this name and look at using an alternative, if necessary take advice from your own legal counsel regarding this matter. I just want to ensure that your endeavours to promote the vehicle will not have any unforseen impact on your business." 1. The appellant submitted that the primary judge erred in finding that the Victorian County Court proceedings resulted from any ongoing dispute about Tallevine's continuing to raptorise Ford vehicles, with counterfeit accessories and parts, or that those proceedings were brought to prevent the use of the Raptor mark in the fitting of accessories and grilles which were not manufactured by agreement under the Ford Group's protocol. They submitted that those proceedings had "…everything to do with the branding of Tallevine's business and nothing to do with Tallevine raptorising any vehicles or the branding of vehicles for sale". But this is of limited significance as cl 9 of the deed of settlement precludes regard being had in the construction of the deed to any conduct of the parties prior to entry into the deed that is not set out in the deed. Conduct set out in the deed includes Ford's allegation that Tallevine had engaged in passing off and misleading and deceptive conduct by using the words FORD, RANGER, and RAPTOR, and the logos referred to above "in connection with the sale of motor vehicles". 2. The principal issues concerning the construction of the deed were the proper construction of order 10(b) and its relationship with the restraints in orders 4, 7, and 8. The primary judge accepted Ford's submission that in cl 10(b) the words "in good faith" provided an excuse for good faith use consistent with ss 120 and 122 of the Trade Marks Act 1995 (Cth). The primary judge did not accept the appellant's submission that all of the other restraints agreed to had to be read down in the light of the chapeau to order 10. The primary judge reasoned: "[227] One of the problems with reading the clause in the way for which Mr Creak contended is that the agreement which the parties freely reached, having been legally advised as they were, is that such a construction would not accord with either the obvious commercial purpose of the deed, or its express provisions. To the contrary, it is reading the clause in the way Mr Creak suggests which raises the possibility of ambiguity, not the words which the parties actually used, they permitting as they do limited use of the words dealt with in in [sic] cll 4 and 8, in good faith. [228] That term is not an ambiguous one, given the dispute which the deed settled, which included claimed breaches of the Trade Marks Act. That statutory context must not be overlooked, given the reference which the deed itself makes to that Act. [229] It is apparent from the deed itself that what was agreed by cl 10 was not the 'uneasy truce' which Mr Creak described. Rather, it was an important part of the final settlement of not only the litigation which Ford had commenced in relation to the disputed use of the words and trademarks with which the deed dealt, but also that which the parties had respectively foreshadowed. Cll 4,8 and 10 thus reflected that the Trade Marks Act permitted good faith use of the marks they dealt with. The deed thus gave practical flesh to this aspect of the statutory scheme, in the parties' particular circumstances. [230] Mr Creak's construction thus also does not pay necessary regard to what lay in issue on the cases which the parties were respectively advancing in the County Court and the foreshadowed proceedings, which the settlement resolved, which is part of the context of the surrounding circumstances known to the parties. Nor does it take account of the purpose and object of the settlement, which also have to be considered in arriving at a conclusion as to what the words used would lead a reasonable person to believe. [231] Accordingly, I am satisfied that it cannot be accepted that any reasonable person would have understood the deed in the way for which Mr Creak contended. The words which the parties used in cl 10 and their ordinary and natural meaning, read in the context of the deed as a whole, simply do not permit the conclusion for which he urged. [232] Clause 10 provided that nothing in the orders, prevented Tallevine firstly, from describing its business as 'Pennant Hills Auto Traders', described as 'Specialising in importing Raptor and F Series vehicles from the United States', provided that the words RAPTOR and F SERIES are in the same size and style of font as the rest of the description. Second, using the words FORD, RANGER and RAPTOR in good faith, to describe the vehicles it offers for sale was also not prevented. [233] This recognised Tallevine's undoubted right to sell used Fords and those it purchased from third party importers. That explains the references in cl 4 to cl 10 when it dealt with the words FORD and RANGER, thus providing an exception to the restraint otherwise agreed in cl 4. Likewise, the references to cl 10 in cl 8. [234] The term 'in good faith' was not defined in the deed and thus, like any other undefined term, takes its ordinary meaning, understood in the contractual context in which the parties used it. That also does not make the term, nor cl 10 ambiguous. [235] The use of that term must be understood in light of cl 2.1 of the deed, which dealt with the consent orders. There the parties also agreed that 'nothing in this Deed or the Consent Orders will cause Tallevine to be an authorised user of any of Ford's trademarks for the purpose of section 26 of the Trade Marks Act 1995 (Cth)'. That the undefined term "good faith" is also used in that legislative scheme, is thus pertinent. [236] Clause 4 restrained 'advertising, distributing, supplying, offering for sale and selling motor vehicles, motor vehicle parts or accessories or any other goods or services under or by reference to' the listed Ford Signs, 'or any sign which is substantially identical to or deceptively similar to any of the Ford Signs', with the specified exceptions. Clause 8 imposed a similar restraint in relation to the specified Raptor signs. [237] Clauses 4 and 8 were thus concerned to restrain the use which Tallevine had been making of those Ford and Raptor signs, which it agreed it would refrain from in future. They were not concerned with it selling Ford manufactured vehicles, which bore the Ford or Raptor names and the Ford badge, which Tallevine was free to do under cl 10. Further, when offering such vehicles for sale it was thus also agreed in cl 10 that Tallevine was permitted to use the words FORD, RANGER and RAPTOR, in good faith, to describe those Ford vehicles, in the manner there agreed. [238] It is the use of the term 'good faith' in that contractual context, referring as it did to the Trade Marks Act, which arises to be considered. The use of that term in the context of this deed, read as a whole, is thus not opaque. It rather accords with the scheme of the Trade Marks Act, as Ford submitted. It follows that the reference in cl 4(a) and (c) to using the specified words in the way permitted by cl 10, thus indicates that use of those words to describe the vehicles being offered for sale involved a good faith use of those words, as s 122(1)(b)(i) also permitted. [239] It is relevant to this conclusion that Tallevine and Mr Creak also agreed in the deed that it would not offer parts or accessories bearing Ford or Raptor signs which were not manufactured with Ford's authority, or that of its related bodies corporates and that it would not fit vehicles which such parts: cl 7. That also supports the rejection of the approach for which Mr Creak contended. … [241] Continuing to 'raptorise' Ford vehicles as Tallevine had before the settlement was reached, which it agreed it would refrain from, did not involve the agreed "good faith use of the word 'Raptor', which cl 10 permitted. Nor did offering for sale vehicles or parts or accessories which Tallevine manufactured without authority, using the Raptor name. [242] By way of contrast, selling a Ford vehicle manufactured by Ford USA as a Raptor, which bore the Ford name and badge as well as the Ranger and Raptor signs affixed on manufacture and describing them as such, as cl 10 permitted, plainly would involve a good faith use. [243] Those conclusions all follow naturally from what a reasonable person reading the words used would believe, in the surrounding circumstances I have discussed." 1. Ground 1 of the Notice of Appeal challenges this reasoning. It contends: "1. The primary judge erred at J [238] in construing paragraph 10 of the Schedule to the Deed (as referred to at J [1]) as permitting only conduct authorised as 'good faith' use within the meaning of s.122(1)(b)(i) of the Trade Marks Act 1995 (Cth) when she should have found that paragraph 10 operated to exclude from the obligations imposed by clause 2.2(a) each honest use of the words Ford and Raptor to describe vehicles offered for sale." 1. Ground 4A challenges the primary judge's finding that the deed was intended to resolve an existing dispute concerning the raptorisation of vehicles by Tallevine. Ground 4A is: "The primary judge erred at J [9], [10] in finding that there was a dispute between the parties as to the raptorisation of vehicles and the sale of vehicles marked as raptors prior to the entry into the Deed in October 2015." 1. The second question of construction concerns cl 2.2(a). 2. The primary judge recorded (J [175]) that Ford accepted that cl 2.2(a) did not bind Mr Creak in relation to the positive obligations imposed by orders 1 to 3 but submitted that Tallevine's breach of those provisions nonetheless resulted in Mr Creak being in breach of the deed given other provisions of the orders by which he was bound by cl 2.2(a). Mr Creak submitted that cl 2.2(a) was a bare warranty or representation as to a future fact, rather than a contractual promise or obligation whereby he promised that he would cause his related entities to do or not do anything (J [201]). 3. The primary judge concluded: "[207] … I am satisfied, reading the clause in the context of the deed as a whole and giving it its ordinary and natural meaning, agreed as it was in the circumstances which I have discussed, that a reasonable person would have understood that what was thereby being given by Mr Creak was a simple promise. Namely, that neither he nor his related entities, including Tallevine would engage in the conduct he and Tallevine agreed was to be restrained by the minutes and the orders. [208] True it is that so far as Mr Creak was concerned his promise was given in relation to a wide class of entities and conduct. But despite this, I consider that this is what a reasonable person would have understood the parties had intended. [209] Fairly read it is not open to conclude that a reasonable person would have understood that by cl 2.2(a) Mr Creak was only accepting the economic risk that in future Tallevine or others which were his related entities, would not do the things which it was agreed would be restrained. Rather, Mr Creak, was promising that they would not do so. … [211] It is the words which the parties actually used in the deed, not only in order to settle their dispute and the County Court proceedings which Ford had initiated, but also the other litigation they had foreshadowed, which leads to that conclusion. What was intended by this part of the settlement of that entire dispute, was agreed restraints which would constrain aspects of the future commercial conduct of Mr Creak and his related entities. [212] The words used in s [sic] 2.2(a) must be understood as part of the deed as a whole, it being structured as it is and the words being considered as they must be in the context of the surrounding circumstances known to the parties, as well as the purpose and object of the settlement. They would thus lead a reasonable person to believe that what was intended was to ensure that Mr Creak would in future neither himself, nor through Tallevine or some other corporate or other vehicle or person, which fell within the definition of related entity, pursue what the restraints precluded, with the specified exceptions provided in cl 10 of the minutes." 1. This reasoning is the subject of ground 3 of the Notice of Appeal. Ground 3 contends: "The primary judge erred at J [207] in finding that clause 2.2(a) of the Deed was a contractual promise with which the Appellant and each of his related entities as defined would comply when she should have found that clause 2.2(a) was a bare warranty as to future facts." 1. Ground 12 of the Notice of the Appeal, referring to cl 2.2(a) of the deed, is: "The primary judge erred in ordering mandatory injunctions at orders 3 and 4 when the only contractual stipulation binding upon the Appellant was negative in effect." 1. As noted at [56] the appellant pleaded that if cl 2.2(a) of the deed had the effect for which Ford contended, then it was a restraint of trade within the meaning of the Restraints of Trade Act 1976 (NSW). 2. Ford did not file a Reply to 17(c) of Mr Creak's defence. Mr Creak submitted that the onus of establishing the restraint was reasonable in the interests of the parties lay on Ford and because it had not filed a Reply asserting that the restraint was reasonable as between the parties, it was not open to it to assert that the restraint was reasonable as between the parties and hence the restraint was void. The primary judge rejected this submission on the ground that, pursuant to r 14.27 of the Uniform Civil Procedure Rules 2005 (NSW), there was a joinder of issue on all that Mr Creak pleaded (J [109]) and there was a real issue between the parties about the reasonableness of the restraints agreed by the deed (J [114]-[122]). Grounds 5 and 6 of the Notice of Appeal challenge this reasoning. 3. The primary judge found that the doctrine of restraint of trade did not apply to the deed of settlement (J [80]-[103]). Ground 4 of the Notice of Appeal challenges this finding. 4. Paragraph 17(c)(i) pleaded only that the settlement deed, if it bound Mr Creak, was a restraint of trade within the meaning of s 4(1) of the Restraints of Trade Act. The allegation in par 17(c)(ii) was abandoned at trial, apparently for tactical reasons associated with Mr Creak's submission that Ford had not pleaded that the restraint was reasonable as between the parties. On appeal, Mr Creak accepted that because the settlement deed was governed by the laws of Victoria, the Restraints of Trade Act did not apply, see below at [117]. Mr Creak did not plead that cl 2.2(a) was invalid. 5. Ford pleaded that Tallevine's filing a cross-claim in the 2017 proceedings commenced by Ford seeking relief against Tallevine for contempt was a breach of cl 4.1 of the deed of settlement and resulted in Ford incurring costs in defending that cross-claim. Ford claimed that the costs it incurred in the contempt proceedings, including the costs of defending the cross-claim, were caused by breaches by Tallevine and Mr Creak of cl 4.1 of the deed of settlement. It sought to recover those costs as damages. It also sought an order that Mr Creak indemnify Ford for its loss and liability arising from Tallevine's cross-claim in the 2017 proceedings. 6. The primary judge held that Ford had not established the quantum of the costs it incurred in the contempt proceedings other than its costs of defending the cross-claim. This was because Ford took the forensic decision not to read affidavits which were said to have analysed the work undertaken (J [331], [334]). The primary judge held that she could rely upon findings made by Fagan J, who made a lump sum assessment in the sum of $295,000, of which Ford had recovered $150,000 leaving a balance of $145,000 unrecovered in respect of the costs (J [332]-[333], [339]). 7. Her Honour concluded that Tallevine's cross-claim was brought contrary to cl 4.1 of the deed (J [361]) and she made an order that Mr Creak indemnify Ford for its losses and liabilities arising from Tallevine's cross-claim against Ford in the 2017 proceedings. That order was made in addition to the entry of judgment against Mr Creak in the amount of $145,000. 8. Grounds 8, 8A, 9 and 10 of the Notice of Appeal challenge these findings. 9. There was no cross-appeal. First Issue: Offering of raptorised Ford vehicles bearing a Ford sign: orders 4-10 (Grounds 1 and 4A) 1. The form of the consent orders was contained in the Minutes, which were an attachment to the deed, and formed part of the agreement between the parties. By cl 9 of the deed, it was agreed that the only conduct relied on by the parties was as set out in the deed and the deed superseded all earlier conduct by or between the parties in connection with the subject matter of the deed. Except in so far as any issue about Tallevine's "raptorisation" of motor vehicles is reflected in the recitals to the deed, or the language of its operative provisions including the agreed orders, or perhaps, from the claim and counter-claim made in the proceedings in the County Court of Victoria, the deed cannot be construed on the assumption that it was intended to resolve a dispute about such conduct. Ground 4A (quoted at [66] above) is correct, in so far as the claim and counter-claim in the County Court proceedings did not include a dispute about raptorisation of Ford vehicles. The question is whether the conduct about which Ford complains is within the terms of the orders attached as a minute to the deed. 2. The "raptorisation" of vehicles by Tallevine about which Ford complains in these proceedings was characterised by Ford as involving the modification of Ford vehicles including by fitting them with counterfeit grilles with the word FORD on them, but without the Blue Oval Device. Tallevine also offered decals using the word "Raptor", carbon wrapping, custom paint, bigger wheels and suspension, and custom interiors including seats and door trim with the "Raptor" word and device. Mr Creak described "Raptor enhancements" as: "A range of after-market accessories and upgrades for various utilities and in particular the Ford Ranger which included upgraded alloy wheels, nudge bars, decals, leather seats, sports bars and unique 'Raptor' branding". 1. An example of a "2017 Ford Ranger Raptor XLS" advertised for sale by Tallevine or Fleet Serv (it is not clear whether the advertisement was placed before or after 30 June 2017) is as follows: 1. Order 4 restrained Tallevine from advertising, distributing, supplying, offering for sale, and selling motor vehicles under or by reference to, amongst other things, any sign that included the word FORD, but subject to order 10. Order 7 restrained Tallevine from advertising, distributing, supplying or selling motor vehicle parts or accessories bearing any of the Ford signs that were not manufactured by or with the authority of Ford or its related bodies corporate, or which were fitted with any such parts or accessories. 2. The grille depicted above, bearing the name FORD, was not manufactured by any of Ford's related bodies corporate but has been fitted to the vehicle. The advertising, distributing, supplying, offering for sale or selling of such vehicles is a contravention of order 7. It is not protected by cl 10(b). The word FORD is not used merely to describe a vehicle offered for sale, but is included as one of the parts fitted to the vehicle that is the subject matter of the proposed sale. The process of "raptorising" Ford vehicles, which involves the fitting of parts or the provision of accessories that bear any of the Ford Signs or Raptor Signs (which include the words FORD and RAPTOR, whether or not using the devices depicted in cll 4(b) and 8(b)) contravenes order 7 and is not protected by cl 10(b), because the use of those words goes beyond the mere description of vehicles offered for sale. It is only the latter that is protected by cl 10(b). 3. This conclusion does not depend upon the construction of the words "in good faith" in order 10(b). 4. So far as ground 1 is concerned (quoted at [65] above), I see no reason to read those words as merely preserving the good faith use of trade marks permitted by ss 120 and 122 of the Trade Marks Act. Ford was not the owner of any of the trade marks in question. Clause 14 of the Dealer Agreement acknowledged Ford's right to the exclusive use of any trademark owned by Ford or any related body corporate (which includes Ford USA) and the right of Ford to give its approval to the use by the dealer during the pendency of the Dealer Agreement to the use of any such trade mark. But neither Ford nor any of its related companies was the owner in Australia of the Raptor trade mark depicted above. Clause 10(b) has no different operation in relation to the use of the word RAPTOR than it does in relation to the use of the words FORD or RANGER. As Ford or its related bodies corporate had no right to the use in Australia of the trade mark RAPTOR SVT™, there is no reason to construe the words "in good faith" as limited to permitted uses under ss 120 and 122 of the Trade Marks Act. 5. However, that does not expand the operation of order 10(b) to go beyond preserving Tallevine's right to describe the vehicles offered for sale by the use of the words FORD, RANGER and RAPTOR so as to extend to conduct that is restrained by order 7. 6. The primary judge was right in holding (at J [233]-[242]) that cl 10(b) permitted Tallevine to sell vehicles manufactured by Ford USA and to describe those vehicles as Ford vehicles, Ford Rangers or Ford Raptors, if the vehicles had been manufactured by Ford USA or by someone else with the authority of Ford or its related bodies corporate, and to describe the vehicles offered for sale under those names, provided that the vehicles were not fitted with parts or accessories bearing any of the Ford Signs or Ford Raptor Signs (as defined in orders 4 and 8) that had not been manufactured with the authority of Ford or any of its related bodies corporate. The raptorisation of the vehicles, if they involved enhancements bearing any of the Ford Signs or Ford Raptor Signs (such as decals or accessories bearing the name RAPTOR, or grilles not manufactured by Ford USA but bearing the name FORD) was a breach of order 7 that was not protected by order 10(b). 7. Orders 4 and 8 distinguish between the words FORD and RAPTOR and the words and devices set out in cll 4(b) and 8(b). Clause 10(b) does not authorise the use of the marks depicted in cll 4(b) and 8(b). 8. On the other hand, there would be nothing to prevent Tallevine, Fleet Serv or Mr Creak from offering for sale particular vehicles by reference to the name FORD or RANGER or RAPTOR if the vehicles could fairly be so described, even if the vehicles have been modified by enhancements, whether accessories or fitted parts, such as wheels, or grilles, provided the enhancements do not bear Ford Signs or Ford Raptor Signs (as defined) and provided that the vehicles so enhanced could honestly still be described as Ford vehicles or Rangers, or Raptors. Clause 2.2(a) of the Settlement Deed not a "bare warranty": Ground 3 1. Mr Creak submitted that cl 2.2(a) should not be read as a contractual promise by Mr Creak that he and his Related Entities would not engage in any of the conduct the subject of the attached Minutes, but as a bare warranty that the facts in future would be as there described. 2. As I understood the submission, it was that because cl 2.2(a) was a bare warranty, while a breach thereof might sound in damages, assuming loss could be proved, it did not provide a basis for injunctive relief. 3. This submission was misconceived and rightly rejected by the primary judge. By cl 2.2(a) Mr Creak gave an undertaking that neither he nor any Related Entity would engage in conduct the subject of the agreed orders. The promise was clearly worded as an undertaking. Whether the promise was a warranty, condition, or innominate term would be relevant if Ford sought to rescind the deed of settlement for breach of the promise. It is not relevant to whether the promise is enforceable by injunction. 4. Mr Creak was the controlling mind and directing will of Tallevine and Fleet Serv. If they were to engage in conduct that was the subject of the restraints, it would be because of what he decided or did. In relation to them, his undertaking that they would not engage in any of the conduct the subject of the attached Minutes was negative in substance and enforceable by injunction (Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552 at 573; [1979] HCA 41; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 at [12] fn 11; Price v Spoor (2021) 270 CLR 450; [2021] HCA 20 at [51]). Mr Creak submitted that, because the definition of "Related Entity" was wide and included, inter alios, any body corporate of which Mr Creak or any relative of his was a member, the promise should not be enforceable by injunction. As I apprehended the submission, it was that, in those circumstances, Mr Creak would not be in a position to fulfil the undertaking. But the fact that an injunction would not be granted to compel Mr Creak to perform an obligation which he was incapable of performing is not a reason for denying Ford injunctive relief where Mr Creak failed to comply with his undertaking that he could perform. Validity of Clause 2.2(a) of the Settlement Deed: Grounds 4, 5, 6 and 7 1. The Defence pleaded that, if the deed had the effect alleged by Ford it contained a cartel provision and was, to that extent, unenforceable pursuant to ss 4L and 45AJ of the Competition and Consumer Act 2010 (Cth). That defence was abandoned at trial. It is surprising that neither party, nor the Court in any pretrial hearing, had taken any steps for the transfer of the proceeding to the Federal Court pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) as raising a special federal matter (s 6(1)). As those grounds of defence were abandoned at trial, that issue does not arise. 2. As quoted at [56] above, par 17(c) of the defence pleaded that if the settlement deed had the effect alleged by Ford, it was in restraint of trade within the meaning of s 4(1) of the Restraints of Trade Act. 3. The primary judge found that the restraint of trade doctrine did not apply to the settlement deed (J [90]-[103]). In reaching this conclusion, the primary judge applied observations of Parker J in Panayiotou v Sony Music Entertainment (UK) Ltd [1994] EMLR 229, followed by Nicholas J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Noack (2004) 71 NSWLR 212; [2004] NSWSC 347). In Panayiotou, the plaintiff was seeking to have a recording agreement declared invalid as being in restraint of trade. That agreement had been entered into as part of a compromise of earlier litigation in which an anterior agreement had itself been alleged to be in restraint of trade. Parker J said (at 346): "A further consideration is that in the Inner Vision Action Mr Michael was taking the opportunity presented by the doctrine of restraint of trade to rid himself of his existing recording agreement not so as to be free of fetters to a record company but with a view to signing with Sony Music/CBS (UK). He was looking, in other words, to substitute one restraint for another. I am not suggesting that he was acting in any way improperly in doing that, but there are as it seems to me powerful public policy reasons why, having done it, he should not be allowed to take advantage of the availability of the restraint of trade doctrine once again to seek to rid himself of the substituted restraint. But the overriding consideration, as it seems to me, is that if it be open to a plaintiff to challenge a compromise of a restraint of trade issue by alleging that the compromise is itself in restraint of trade, then it seems to me to follow that a restraint of trade issue could never be compromised by the substitution of a new agreement. Unless the parties are able to compromise the issue in some way which does not involve the substitution of a new agreement, they will have no option but to litigate the issue to judgment, whether they like it or not." 1. In Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126; [2001] HCA 45, Gleeson CJ, Gummow, Kirby and Hayne JJ referred to Parker J's decision in Panayiotou at [19] but expressed no conclusion upon the correctness of his conclusion quoted above. 2. In Noack the defendant, Mr Noack, had been the State Secretary of the South Australian branch of a Union and engaged in litigation that was pending against another officer of the Union in relation to allegations of harassment and breach of the Union's rules. The proceedings were compromised by a deed whereby Mr Noack agreed to resign his office upon receiving certain payments and agreed thereafter not to stand for any elected office in the Union or interfere in the operation of the Union in any way. After Mr Noack stood for office again, the Union brought proceedings for an injunction to restrain his doing so. Mr Noack submitted that his covenant not to stand for office in the Union was invalid as an unlawful restraint of trade. 3. Nicholas J held that the doctrine did not apply. His Honour gave two reasons for this conclusion. The first was that the covenant did not have a connection with trade. The restraint on his seeking nomination for election to an office in the Union did not infringe his ability to work or undertake paid employment and, his Honour found, lacked the characteristics of one in restraint of trade at [46]. The conduct restrained was of an entirely political kind. In an interlocutory judgment in the proceedings which gave rise to the settlement, Mansfield J had found that the Union was divided between two factions with Mr Noack in one faction and the other officer in the other (Adlam v Noack [1999] FCA 1606 at [9]). 4. The second reason was that, applying and extending Panayiotou: "[55] In this case, the Deed records the bona fide compromise of several serious and complex disputes which adversely affected the conduct and operations of the Union and generated division and ill will among a number of its senior officials, at least within the South Australian branch. This much is apparent from the recitals in the Deed and from the judgments in the cases referred to therein. The parties were legally represented during the course of negotiations and were assisted by the involvement of the Hon J Riordon. The agreement was entered into freely. There was no inequality of bargaining power. The restraint under cl 4 was an important component of the settlement and was conditional upon the defendant's resignation and upon payment by the Union of the monies provided in cl 3, both of which happened shortly after the execution of the Deed on 28 October 1999. [56] It seems to me that these circumstances attract the application of the public policy as explained by Parker J in Panayiotou upon analysis of Binder and Colchester Borough Council. I accept the submissions of Mr Condon for the Union. [57]…there is no public interest or policy of the kind which underlies the common law doctrine of restraint of trade which would justify the Defendant's claim to have an essential component of this compromise declared unenforceable. Put another way, the settlement as incorporated in the Deed is one of the types of contract to which Lord Wilberforce referred in Esso (p 322) where he said: 'There will be types of contract as to which the law should be prepared to say with some confidence that they do not enter into the field of restraint of trade at all'. In this case, the public interest is served by upholding the Deed and, in particular, the restraint under cl 4." 1. Nicholas J went on to hold that, if the doctrine of restraint of trade could apply, nonetheless the restraint was not invalid because it was reasonable in the interests of the parties and in the public interest (at [58]-[59]). 2. The litigation that was compromised by the settlement deed in that case did not itself involve a dispute about the validity of a purported restraint of trade. 3. Contrary to the submission of the appellant, the reasoning of Nicholas J for the second ground on which his Honour decided that the doctrine of restraint of trade did not apply, was not obiter. As Lord Macnaghten said in Commissioner of Taxation for New South Wales v Palmer [1907] AC 179 at 184: "…it is impossible to treat a proposition which the Court declares to be a distinct and sufficient ground for its decision as a mere dictum simply because there is another ground stated upon which, standing alone, the case might have been determined." 1. It was appropriate for the primary judge to have followed Nicholas J's decision as a matter of comity. 2. In Peters (WA) Ltd v Petersville Ltd, the majority said at [19] that the decision in Panayiotou: "…may suggest that what Parker J called the 'clear public interest in upholding genuine and proper compromises' applies to a 'genuine and proper' compromise of a dispute respecting an alleged restraint of trade with the result that a later claim that the compromise itself is in restraint of trade falls outside the scope of the restraint of trade doctrine and did not require justification." 1. The majority did not express any conclusion about that matter, but there is nothing in the reasons in Peters (WA) Ltd v Petersville Ltd that would support a wider scope for an exception than that articulated in Panayiotou. 2. Justice Ball followed Panayiotou in Properties Northside Pty Ltd t/as Raine & Horne Manly/Freshwater v Pickering [2015] NSWSC 310 at [43]-[49] where a contract said to be an unlawful restraint of trade was a compromise of proceedings brought by the plaintiff seeking to reinforce restraints. In Metcash Ltd v Jardim (No 3) [2010] NSWSC 1096; (2010) 273 ALR 407, Ball J held at [42] that where a dispute concerned the termination of a contract but did not concern a restraint of trade clause, there was no reason why the restraint of trade doctrine should not apply to a compromise that resolved the dispute (see to the same effect, Man Financial (S) Pte Ltd v Wong Bark Chuan David [2007] SGCA 53; [2008] 4 LRC 419). 3. In the present case, there was no dispute in the County Court proceedings or the foreshadowed Federal Court proceedings about the validity of the terms of the dealer agreement which Ford sought to enforce. The rationale stated by Parker J in Panayiotou for holding that the doctrine of restraint of trade was inapplicable to the compromise in that case is not applicable. In J D Heydon, The Restraint of Trade Doctrine (4th ed, 2018, LexisNexis Butterworths), the learned author observes that it is not easy to see how private parties can, by agreement, exclude the application of a doctrine of public policy. 4. In a case such as the present, the true position, it seems to me, is that the doctrine applies. But, in assessing whether the restraint is reasonable in the interests of the parties, it is highly relevant that the restraints, in so far as they bound Tallevine, are not alleged to have been unlawful, and that cl 2.2(a) requires Mr Creak to ensure that Tallevine's successor, a company he controls, does not do what Tallevine was prohibited from doing. The restraints were negotiated as a genuine and proper compromise (and included a payment by Ford of $100,000 to Tallevine pursuant to cl 2.3(b)) and both parties were legally advised. Those are powerful reasons for concluding that the restraint in cl 2.2(a) was reasonable in the interests of the parties. The fact that the compromise advanced the public interest in the avoidance of litigation is a powerful reason for concluding that the compromise is reasonable in the public interest. 5. This case is analogous to World Wide Fund for Nature v World Wrestling Federation Entertainment Inc [2002] EWCA Civ 196; [2002] FSR 33. There, the World Wide Fund For Nature (formerly World Wildlife Fund) and World Wrestling Federation Entertainment Inc compromised litigation in relation to the Federation's applications for trade mark registration of its logo using the initials "WWF" outside the United States. The World Wildlife Fund had registered its "WWF" trade mark. There was litigation between the parties around the world. The disputes were compromised by an agreement by which the Federation undertook to cease using the initials except for limited defined purposes. After the Federation breached the agreement, the Fund sought and obtained injunctive relief. The Federation contended that any restriction on its use of the mark WWF was a restriction in restraint of trade and therefore void unless the Fund could justify it (at [40]). Giving the judgment of the Court of Appeal of England and Wales, Carnwath LJ said: "42. …The protection of the intellectual property rights of one business inevitably implies some restriction on the rights of others with potentially conflicting interests. The laws governing those rights are designed to set reasonable limits to the restrictions, but the limits are not always clear-cut. Where there are disputes, it is in the interests of everyone, including the public, for those disputes to be settled by agreement, rather than litigation, and for such agreements to be respected. 43. This proposition does not mean that the doctrine of restraint of trade is altogether excluded. It merely acknowledges that the public interest represented by the doctrine has to be applied in the factual context of the agreement; that the parties, with proper legal advice, are the best judges of what is reasonable in their respective trading interests; and that agreement between them is normally the fairest and most efficient way of drawing the boundaries. … 48. To summarise, where the claimant has been party to a settlement of a genuine dispute, designed to define the boundaries of his trading rights as against the defendant, he is entitled to expect that to be enforced. It is not for him to prove that it is reasonable. The presumption is that the restraints, having been agreed between the two parties most involved, represent a reasonable division of their interests. It is for the Defendant, seeking to avoid the agreement, to show that there is something which justifies such a course, because the dispute was 'contrived' (as in the BAT case); or because there was no reasonable basis for the rights claimed (as, apparently, in Apple); or because it is otherwise contrary to the public interest, for example, going beyond the legitimate purpose of seeking to 'avoid confusion or conflict' between the parties." 1. I accept that the primary judge erred in finding that the restraint of trade doctrine did not apply to the deed (ground 4). 2. Appropriately, the primary judge went on to consider whether cl 2.2(a) was void as being in restraint of trade on the assumption that the doctrine did apply. Her Honour rejected Mr Creak's submission that it was not open to Ford to argue or to adduce evidence that the provisions of the deed were reasonable in the interests of the parties because it had not filed a Reply to that effect. Grounds 5 and 6 challenge this conclusion. 3. The primary judge considered this submission to be raised as an ambush. Her Honour said: "[112] It is relevant that despite all of the interlocutory matters which the parties pursued, up until the hearing there had been no complaint about improper surprise resulting from Ford's failure to file a reply. Nor any suggestion that the hearing on the restraint issue could not fairly proceed without one. It was open to Mr Creak to seek particulars of what Ford relied on to defend the matters he had raised by cl 17 of the defence, about which issue had been joined as the result of the operation of the Rules, if there was any concern about potential prejudice. But that had also not been pursued. … [114] There is no question that there is a real issue lying between the parties about the reasonableness of the restraints agreed by the deed raised by the pleadings and operation of the Rules. If it was considered that a reply needed to be filed, so that Mr Creak could properly understand Ford's case on that issue, he ought to have raised that before the hearing. The legislative scheme does not permit any party to conduct the litigation by ambush or surprise, including as to a pleading issue such as this. [115] It is also relevant that r 14.2 permits the proceedings to be tried without further pleadings, if the Court is of the opinion that the issues between the parties can be defined without them. That the restraint issue had already adequately [been] defined was supported by the evidence served and the issues and facts which the parties agreed before the hearing. [116] Mr Creak also complained that because Ford had not pleaded reasonableness, he had not investigated whether it had an interest in protecting or advancing the brands in issue. Nor had he led evidence about the operation of the restraint on the broad class of those defined to be 'related entities'. He contended that there could thus not be a fair trial on the question of reasonableness. [117] I am satisfied that this cannot be accepted. … [122] In this case I am satisfied that the parties' ongoing dispute, resolved as it was by the 2015 settlement; the pleaded cases; the operation of the Rules; and the evidence which the parties had each served about the circumstances in which the deed came to be entered and what had led to the restraints being agreed as they were, established that Mr Creak was not unfairly surprised by Ford's failure to serve a reply which particularised the basis on which it said that the agreed restraints were reasonable. Nor did the case it advanced genuinely catch Mr Creak by surprise." 1. There was no error in this reasoning. 2. In any event, the submission did not even have technical merit. On appeal, Mr Creak conceded that the Restraints of Trade Act did not apply because the proper law of the deed of settlement was the law of Victoria (see KA & C Smith Pty Ltd v Ward (1998) 45 NSWLR 702 at 720). It is unnecessary to decide whether the concession was rightly made, noting that in converse circumstances to that case a different view has been tentatively expressed by Parker J in Label Manufacturers Australia Pty Ltd v Chatzopoulos [2022] NSWSC 1059 at [150]-[153] (and see also Allied Express Transport Pty Ltd v Braim [2022] NSWSC 1298 at [273] (Williams J)). The Defence did not plead that cl 2.2(a) was void because it was in restraint of trade. It pleaded that if the clause had the effect for which Ford contended then it was a restraint of trade within the meaning of s 4(1) of the Restraints of Trade Act. Section 4(1) provides: "4 Extent to which restraint of trade valid (1) A restraint of trade is valid to the extent to which it is not against public policy, whether it is in severable terms or not." 1. There are first instance authorities referred to in Isaac v Dargan Financial Services Pty Ltd (2018) 98 NSWLR 343; [2018] NSWCA 163 which have held that s 4(1) does not change the position at common law that the onus of establishing that a covenant in restraint of trade is reasonable as between the parties lies on the party seeking to enforce the contract. Gleeson JA, with whom the other members of the Court agreed, said at [78] that without deciding the question, that view is attractive. 2. The Restraints of Trade Act modifies, but does not displace, the common law principles. If Mr Creak were to have been held strictly to his pleading, his defence could have been rejected for failing to plead that if cl 2.2(a) had the effect contended for by Ford, it was void. This is especially so as para 17(c)(ii) was withdrawn, leaving only an allegation that the clause was valid to the extent to which it was not against public policy, and no allegation that it was void, without which the common law rules about onus were not invoked. 3. Accordingly, the primary judge did not err (as contended in Ground 6 of the Notice of Appeal) in admitting evidence relevant to the existence of interests of the respondent in supporting the reasonableness of the restraints. 4. Nor did the primary judge err in finding that Ford had an interest in the brand reputation in the Raptor name and Ford Raptor vehicles including F Series trucks. Mr Creak contended (Ground 7) that any interest of that kind was held only by other entities within the Ford group of companies. 5. In the County Court proceedings, Ford had alleged that the word FORD and the blue Ford Rondelle were registered in the name of Ford Canada and that the Australian registered mark for the word RANGER and the United States registered mark for the word RAPTOR were registered in the name of Ford USA. 6. It may be accepted that Ford did not have a proprietary interest in the marks. That does not mean that it did not have a legitimate interest to protect. By cl 14.1 of the Dealer Agreement, Tallevine acknowledged that Ford had the right to give and to revoke approval to Tallevine for the use of any Trade Mark, including any Trade Mark owned either by Ford or by any of its related bodies corporate. Ford had a legitimate interest in enforcing these terms of the Dealer Agreement. 7. Although the legal onus of establishing that the restraint is reasonable as between the parties lies on the party seeking to enforce the covenant, where, as here, the restraint is reached as the result of the settlement of a genuine dispute in which both parties were legally represented and there was no overreach of one of the parties, the evidentiary onus shifts. As the primary judge said: "[263] It is in that context that the submission that the deed having been negotiated and agreed by Tallevine cannot be given any weight, may not be accepted. That is supported by Brereton [JA]'s observation in Belflora (Belflora Pty Ltd v Vinflora Pty Ltd (2021) 106 NSWLR 67; [2021] NSWCA 178) at [52] that 'courts have not been favourably disposed to permitting a trader, who has voluntarily entered into a restrictive arrangement with other traders, to escape from the obligation by pleading that it has imposed an unreasonable burden on itself, adopting the view that the parties themselves are the best judges of what is reasonable in their own interest'." 1. On this issue, the primary judge concluded: "[275] The evidence established the restraints so agreed were reasonable, given not only Ford's accepted legitimate interests, but also what it was agreed would not be affected by those restraints. Namely, Tallevine's right to continue selling Ford vehicles and describing them as such, including Ford Raptors and Rangers, as cl 10 of the minutes permitted. The practical position on the evidence was that because it was no longer an authorised dealer, Tallevine could not sell new Fords. But cl 10 recognised that it could sell used Fords, as well as Ford vehicles which Ford did not import, but which were available to it to purchase from third party importers. Thus, it acknowledged Tallevine's right, when advertising Ford vehicles it was entitled to offer for sale, to use the words FORD, RANGER and RAPTOR to describe those vehicles, in the ways specified. [276] But as I have explained cl 10 did not to permit Tallevine to continue 'raptorising' Ford vehicles, accessories and parts, that being precluded by the other agreed restraints which recognised that Ford was legitimately entitled to protect its interests in respect of what Tallevine was not entitled so to do. [277] Also I have explained, while 'good faith' was not defined, given all that was agreed by these parties in the deed, Tallevine using the specified words when it offered for sale Ford vehicles which it had itself 'raptorised', was not a good faith use of those words, nor permitted by cl 10. Rather, that involved a breach of the agreed restraints." 1. I agree. 2. The primary judge also held that the restraints in cl 2.2(a) were not contrary to the public interest (J [283]-[290]). Her Honour said: "[288] It is relevant that what was so settled was both the actual litigation which Ford was pursuing over the gap in the market which Mr Creak perceived, his right and that of Tallevine to do so there being in issue, as well as the other litigation which the parties had each also foreshadowed. The deed thus dealt with how these commercial parties would each conduct themselves in future in relation to a range of matters, which rested on their respective rights to use the marks in issue, as well as the terms of the dealer's agreement. [289] Accordingly, there were positive steps Ford and Tallevine agreed they would each take, as well as restraints accepted by Tallevine and Mr Creak, in his case also in respect of his related entities' future use of those marks. It should also not be overlooked that what was so agreed included Ford making a payment of $100,000 to Tallevine in the event that an agreement with a third party in relation to operating a Ford dealership out of Tallevine's business premises, was not entered. [290]…Contrary to his case, the evidence does establish that Ford's interests were affected by the conduct from which Tallevine and Mr Creak refused to desist until the settlement was arrived at. The deed itself evidenced that interest. What was so agreed to settle the resulting and foreshadowed litigation, was accordingly not contrary to the public interest." 1. I agree. The onus of establishing that the restraints were contrary to the public interest lay on Mr Creak. The restraints he accepted were part of the quid pro quo he offered to settle the County Court proceedings and his foreshadowed Federal Court proceedings. There was a public interest in finalising the first and pre-empting the second. The primary judge observed at [99] that as no complaint was made of the consent orders that bound Tallevine there is no reason that the obligations that bound Mr Creak should be in any different position. The primary judge was correct in upholding the validity of cl 2.2(a). Width of the injunctive relief ordered 1. The only challenge to the width of the injunctive relief ordered were in grounds 11 and 12 in the Notice of Appeal that were as follows: "11. The primary judge erred at J [390] in reasoning that it was appropriate to make injunctions which operated by reference to the current paragraph 10 of the Schedule to the Deed. 12. The primary judge erred in ordering mandatory injunctions at orders 3 and 4 when the only contractual stipulation binding upon the Appellant was negative in effect." 1. Orders 3 and 4 were: "3. The Second Defendant, by himself or by procuring Fleet Serv Pty Ltd to do so, do all things necessary to immediately transfer to the Plaintiff the domain name raptor4wd.com and any other internet domain name registered in his name or in the name of any related entity that contains the word RAPTOR. 4. The Second Defendant, by himself or by procuring Fleet Serv Pty Ltd to do so, immediately amend the content of the website now shown at www.phauto.com.au and www.dieselauto.com.au as follows: a. to include a prominent statement that the business is not an authorised Ford dealer; b. to include a statement that there is no warranty provided by Ford Australia or Ford US for Raptor and F Series vehicles in Australia; c. to remove all statements to the effect of: i. Our F series trucks are ordered direct from the factory in the USA for customisation and conversation [sic]; ii. The venture as a new dealer with Ford has proved our ability to provide high volume sales with unmatched customer service retention; iii. Our Ford Rangers and Ford F Series can be serviced throughout the Ford dealer network; iv. Ford Ranger vehicles are of course serviceable and warrantable through any of the corresponding dealers in Australia; v. with Ford F Series and Ford Ranger at Thornleigh we offer Ford Trained Master technicians for peace of mind trouble free maintenance." 1. Order 3 reflected order 3(d) attached to the deed of settlement that bound Tallevine. 2. Order 4(a) and (b) reflected order 1(e)(i) and (ii) attached to the deed of settlement that bound Tallevine. 3. Order 4(c) reflected order 1(e)(iii) attached to the deed of settlement that required Tallevine to amend its website "to remove all statements to the effect of paragraph 12 below". "Paragraph 12 below" provided that: "12. The defendant is immediately restrained from publishing any of the following statements or statements to the same or similar effect: (a) the defendant is "authorised to enhance" F series trucks and Ranger vehicles; (b) the defendant exceeds Ford manufacturer standards on enhancement quality; (c) Raptor vehicles and enhancements sold or performed by the defendant can be financed by the defendant through My Ford Finance; and (d) F Series and Raptor vehicles are serviceable and warrantable through Ford Australia or any authorised Ford dealers in Australia." 1. Order 11 attached to the deed of settlement provided: "11. The defendant is immediately restrained from making any representation that: (a) there is a connection by way of trade between the defendant or its business and the plaintiff or any of its related companies; (b) the defendant or its business is sponsored, approved by, or affiliated with the plaintiff or any of its related companies; and (c) the defendant's goods or services are those of the plaintiff or any of its related companies or are approved or endorsed by the plaintiff or any of its related companies, including, without limitation, by: (i) advertising Ford branded vehicles as 'New' motor vehicles where the vehicle has previously been registered; (ii) offering finance services under the name myFord Finance; (iii) using or displaying photographs of the Premises when it was an authorised Ford dealership in any manner in connection with the supply and service of motor vehicles and parts and accessories for motor vehicles; or (iv) describing the defendant as a 'Ford car dealer'." 1. Order 4 made by the primary judge is a mandatory injunction addressed to Mr Creak that is justified to remedy his breach of his negative covenant ([95] above) undertaking that Tallevine and Fleet Serv would not breach the restraints in orders 11 and 12. 2. Order 3 is justified on the same basis. Tallevine was bound to transfer to Ford the domain names there referred to. Mr Creak did not undertake that he would ensure that Tallevine or any Related Entity that succeeded to its business would perform Tallevine's positive obligations. Tallevine had already registered the domain name raptor4x4.com.au. It was an agreed fact that, on or about 28 June 2017, Mr Creak procured the registration of domain name raptor4wd.com in the name of Gavin Cox. The domain name raptor4wd.com was used by Fleet Serv from on or about 30 June 2017. This was a breach by Mr Creak of cl 2.2(a) of the deed of settlement when applied with reference to order 6 of the attached Minutes. Order 3 made by the primary judge was justified to remedy that breach. 3. The primary judge did not err in qualifying some of the injunctive relief ordered by reference to the language of order 10(b) in the Minutes attached to the deed. As the primary judge held, any asserted ambiguity in the orders could be resolved by reference to the judge's reasons, and from the date of publication of the reasons of this Court, by reference to this Court's reasons. In any event, the asserted ambiguity arises from the terms of the parties' agreement. As Giles JA (with the concurrence of Spigelman CJ and Allsop P) said in Orleans Investments Pty Ltd v Mindshare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40 at [105]-[106], injunctions are practical tools in the administration of justice, but there are limits to the precision and clarity which can be attained. It is not possible to predict all possible future cases. That does not mean that Mr Creak should not be bound by injunction to what he promised. Damages and Indemnity 1. Orders 1 and 2 made by the primary judge were as follows: "1. Judgment be entered for the Plaintiff against the Second Defendant in the amount of $145,000. 2. The Second Defendant is to indemnify the Plaintiff for its losses and liabilities arising from the First Defendant's cross claim against the Plaintiff in proceedings no. 2017/75192." 1. Ford pleaded that it suffered damage by reason of Tallevine's breach of the orders made on 28 October 2015, being costs which it incurred in proceedings 2017/75192 in which it sought relief against Tallevine for contempt. It also alleged that Tallevine's filing of its cross-claim in those proceedings against Ford was a breach by Tallevine and Mr Creak of cl 4.1 of the deed of settlement. It also claimed an entitlement under cl 5.1 of the deed of settlement to have Mr Creak indemnify it against the costs it incurred in bringing the contempt proceedings against Tallevine and defending Tallevine's cross-claim pursuant to cl 5.1 of the deed. 2. By cl 4.1 of the deed, Tallevine and Mr Creak covenanted not to bring or pursue a Claim (as defined) against Ford in respect of any matter which was the subject of a release under cl 3.1. By cl 3.1, Tallevine released Ford from any Claim arising from or connected with the Dispute (as defined) or any part of it, the allegations giving rise to or referred to in the Dispute or any part of it, and any other Claim which was known, or could have reasonably been known, to Tallevine as at the date of the deed. 3. "Claim" was defined to include costs (whether or not the subject of a court order). The "Dispute" meant the dispute the subject of the County Court proceedings including Tallevine's counter-claim in those proceedings. 4. Ford sought both damages and an order that Mr Creak indemnify it for its loss and liability arising from Tallevine's cross-claim against it in proceeding 2017/75192. 5. The primary judge found that Ford was entitled to damages to recover the costs it incurred in bringing the contempt proceedings against Tallevine but had failed to prove the quantum of those costs (J [318], [324], [325], [329], [334]-[335], [341]-[343]). 6. There is no cross-appeal against this finding. 7. The primary judge had earlier explained that Ford had served an affidavit which referred to a confidential exhibit of memoranda of fees and disbursements in the contempt proceedings which were not served. Mr Creak sought an unredacted copy of the memoranda, some of which were only provided in the week before the hearing commenced. When advised that there were objections to the affidavit of Ford's solicitor, who was required for cross-examination, Ford advised that the solicitor would not be called. It nonetheless sought to rely on the memoranda of fees. The tender was rejected. Ford does not challenge that ruling. A late application by Ford for leave to call the solicitor was refused and, again, that ruling is not the subject of challenge (J [62]-[79]). 8. Notwithstanding these rulings, the primary judge gave judgment for Ford against Mr Creak in the sum of $145,000 for costs incurred by Ford in defending the cross-claim Tallevine brought in the 2017 proceedings. Given her Honour's rulings on evidence, there was no evidence from Ford as to the costs that it had incurred in defending the cross-claim. The primary judge held that the judgment of Fagan J assessing Ford's costs of defending the cross-claim in the sum of $295,000 provided a foundation for assessing the costs in that sum. As Ford had recovered $150,000 by recourse to the security Tallevine had provided for its costs of the cross-claim, her Honour entered judgment for the balance of $145,000 in respect of those costs. In so reasoning, her Honour held that "Fagan J's judgment was not inadmissible under s 91 of the Evidence Act, to prove those costs, they not finally having been in issue in those proceedings: s 91(1)" (at J [331]). 9. Additionally, the primary judge ordered that Mr Creak indemnify Ford for its losses and liabilities arising from Tallevine's cross-claim against Ford in proceeding 2017/75192. 10. The first issue is whether Tallevine's filing of its cross-claim was a breach of its covenant not to sue in cl 4.1 of the deed of settlement. By cl 4.1, Tallevine covenanted not to bring a Claim against Ford in respect of any matter which was the subject of a release under cl 3.1. The release under cl 3.1 is quoted at [46] above. 11. By its cross-claim, Tallevine asserted that, under the Dealer Agreement, as amended by the "First settlement agreement" of 21 October 2013, and the Franchising Code and s 51ACB of the Competition and Consumer Act, Ford was obliged as of 18 February 2014 to consent to the sale of Tallevine's franchise business to Fleet Serv, to consent to the extension of the sale period, and to recognise Fleet Serv as an authorised Ford dealer at the location of Tallevine's franchise business. Tallevine alleged that Ford was not entitled to terminate the Dealer Agreement. It alleged that Ford's conduct in terminating the Dealer Agreement was unconscionable. It alleged that the first settlement agreement, to the extent it provided for termination of the Dealer Agreement in default of completion of a sale of the business by 18 February 2013 was void or voidable. It alleged that Tallevine was entitled to relief against forfeiture of the Dealer Agreement. 12. All these claims fell squarely within the Dispute which was the subject of Tallevine's release in cl 3.1. Tallevine also alleged that the settlement deed had been repudiated by Ford, which had accepted that repudiation or, alternatively, that Tallevine had rescinded the settlement deed for misrepresentation or mistake. It sought the setting aside of the consent orders made on 6 October 2015 and related relief. 13. Tallevine's challenge to the validity of the deed of settlement did not fall within any of the subparagraphs of cl 3.1, but it fell within the chapeau to that clause as being connected with the Dispute. If the challenge had succeeded, then the release would have been discharged. But, as it did not succeed, all of the cross-claim was brought in breach of Tallevine's covenant in cl 4.1. 14. Mr Creak was in breach of his covenant in cl 4.1 in that he caused Tallevine to bring a Claim against Ford in respect of matters which were the subject of the release under cl 3.1. Although it was Tallevine that brought the claim, it was Mr Creak who caused it to do so. 15. Mr Creak submitted that, on the Friday evening prior to the commencement of the trial on the Monday, Ford had served written submissions in reply in which it accepted that the costs incurred in defending the most substantial claim in the cross-claim could not be the subject of the indemnity. In those submissions, counsel appearing at trial for Ford accepted that, to the extent the costs of the cross-claim related to the attempt to set aside the deed by reason of alleged representations made during the mediation, that could not be the subject of the indemnity. Mr Creak submitted that the case was conducted on the basis of that concession. 16. The concession was withdrawn on the third day of the hearing. Although counsel for Mr Creak submitted that he had run the trial on the basis of what had been contained in Ford's written submissions in reply, he did not submit that he had suffered any prejudice or would have acted differently had the concession not been made in the written submission served very shortly before the hearing. No complaint was made at trial about the withdrawal of the concession. No attempt was made to demonstrate how the trial might have proceeded differently had the concession not been made. The issue is one of construction of cl 3.1 of the settlement deed. Until the submission had been served on the Friday before the commencement of the trial on the following Monday, Ford's position had been that it was entitled to be indemnified by Mr Creak in respect of all of its costs of defending Tallevine's cross-claim in the 2017 proceedings. Any evidence that might have been relevant to the question, and it is hard to think what evidence might have been relevant, having regard in particular to cl 9 of the deed of settlement, could and should have been adduced. Mr Creak did not point to any evidence that might have been adduced to address the question. 17. Mr Creak submitted that, had the trial judge asked, but for Mr Creak's breach of cl 2.2(a), would Tallevine have brought its cross-claim, the answer would necessarily have been that it may well have. 18. I do not understand the relevant breach to have been a breach by Mr Creak of cl 2.2(a) because the bringing of the cross-claim was not the subject of the attached minutes of consent orders. In any event, there is no factual basis for the submission. Mr Creak controlled Tallevine. 19. The primary judge rightly held that the incurring of costs in defending proceedings brought by Tallevine in breach of its and Mr Creak's covenant in cl 4.1 would have been within the reasonable contemplation of the parties when the deed was entered into as the probable result of the breach. The costs also naturally arose from the breach. The damages claimed were not too remote. 20. The real issue was whether the quantum of damages could be proved from the reasons and orders of Fagan J of 20 September 2021. Section 91(1) of the Evidence Act 1995 (NSW) provides: "91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding." 1. Ford submitted that the order of Fagan J was admissible as to the fact that the order was made and that s 91 did not apply to court orders (as distinct from reasons). 2. But s 91(1) excludes evidence of both the decision and a finding of fact to prove the existence of a fact that was in issue in the proceeding. 3. Section 91 does not affect the operation of a judgment in rem or the law relating to res judicata or issue estoppel (s 93), but the costs order made against Tallevine was not a judgment in rem and Ford did not contend that the judgment bound Mr Creak as a privy to Tallevine. 4. Mr Creak had notice of Ford's application and appeared through his solicitor at the hearing before Fagan J to advise that he had no submissions to make on the application. He did not thereby become bound by the order. 5. Tallevine's liquidator did not oppose the order sought by Ford, apparently on the basis that the costs ordered would not be provable in the liquidation of Tallevine (J [330]). 6. The primary judge held that the costs the subject of Fagan J's judgment had not "…finally been in issue in those proceedings" (J [331]). I take it that this was because the liquidator of Tallevine had not ultimately contested the quantum of the costs claimed. 7. That fact did not mean that the costs were not "in issue" in the proceeding before Fagan J. Rather, the quantum of costs was the very issue to be decided. The fact that Tallevine, through its liquidator, did not ultimately contest the issue did not mean that the quantum of costs was not in issue. Orders were not made by consent. The quantum of costs sought by Ford was not awarded. Neither the findings of fact made by Fagan J, nor his Honour's orders, were admissible to prove the quantum of costs of the cross-claim which Mr Creak was liable to pay under his indemnity. The judgment for $145,000 entered for Ford against Mr Creak, should be set aside. Ford is entitled to nominal damages for Mr Creak's breach of the deed. 8. Ford sought to quantify its claim for indemnity under cl 5.1 of the deed in the amount for which it sought judgment. Its cause of action to enforce the indemnity in cl 5.1 merged in the judgment, just as it would have been, had judgment been given for Mr Creak, and just as it will be on the entry of judgment for nominal damages. 9. Even if there were no merger of the cause of action to enforce the indemnity in cl 5.1 in the judgment, it would be an abuse of process if Ford, having failed to prove the quantum of its claim before the primary judge, instituted new proceedings to enforce the indemnity and there sought to adduce the evidence of the quantum of its costs that it failed to adduce before the primary judge. Such a course would lead to conflicting judgments (Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142 at [15], [19]-[23], [36]). The same objection could be taken if Ford's solicitors sought to have the costs assessed pursuant to s 198 of the Legal Profession Uniform Law (NSW) against Mr Creak as a non-associated third party payer. 10. Accordingly, each of order 1 and order 2 made by the primary judge should also be set aside. 11. Because Mr Creak has had some success in his appeal, the parties should provide written submissions on the question of costs of the proceedings below and of the appeal, including any submissions on interest on costs. Orders 14, 15 and 16 made below (dealing with interest on the sum awarded, costs of the proceedings below, and interest on costs) should be set aside. 12. For these reasons, I propose the following orders: 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. ********** 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: 13 September 2023