STANTON AND ORS v REIBELT AND ANOR [1998] NSWCA 214

STANTON v REIBELT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and POWELL JJA 17 July 1998, 4 September 1998

[1998] NSWCA 214 BREACH OF NON COMPETITION PROMISE — DAMAGES

BREACH OF NON COMPETITION PROMISE — DAMAGES — In 1990 the respondents bought out the appellant's partnership interest in a fruit business — the contract of sale included a promise that the appellants would not compete anywhere within fifty kilometres of the respondents' business for a period of three years — in 1991 the appellant's brother and his wife opened a fruit shop 150 yards away from the respondents' and the appellants were seen taking part in running it — the trial judge found, on the evidence, that the appellants had breached their non competition promise and that due to that breach the respondents suffered damage.

On appeal the appellants submitted: 1. the trial judge erred in his fact findings about damage; 2. Cooper DCJ wrongly applied the "but for" causation test; March v E & M H Stramare Pty Ltd; 3. the trial judge erred in his use of the respondents' accountant's evidence on damages. On the cross-appeal the cross-appellants (respondents) submitted: 1. that the three defendants in the trial should pay the respondents' (plaintiffs) costs on an indemnity basis from the date of their offer to settle prior to the hearing. Held: 1. the trial judge's factual findings should not be disturbed: Devries v Australian National Railways Commission; 2. Cooper J's findings on causation were in accord with the authorities; 3. no error in the trial judge's acceptance of the expert evidence given by the respondents' accountant; 4. (cross-appeal) on the facts as found by the trial judge he erred in not awarding indemnity costs. Devries v Australian National Railways Commission (1993) 177 CLR 472 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506