Adler Mallach Holdings Pty Limited v Robertson and anor [2002] NSWSC 1176

New South Wales Supreme Court

CITATION : Adler Mallach Holdings Pty Limited v Robertson and anor [2002] NSWSC 1176 revised - 17/12/2002 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 50004/01 HEARING DATE(S) : 25 March, 17 April, 1,2,3 July, 25, 26 July 2002 JUDGMENT DATE : 9 December 2002

Adler Mallach Holdings Pty Limited (Plaintiff) PARTIES : Robert Samuel Robertson (First Defendant) Noaleen Anne Dennis (Second Defendant) JUDGMENT OF : Master McLaughlin

COUNSEL : S. Jacobs (Plaintiff) Defendants in person SOLICITORS : Steingold Abel, Solicitors (Plaintiff) CATCHWORDS : Damages - Inquiry by Master as to assessment - Necessity for an order for such an inquiry - Heads of damages - Loss of profits - Concept of unfair "springboard" or "headstart" in respect to profits. Industrial Rollformers v Ingersoll-Rand (Australia) Limited [2001] NSWCA 111 sub nomine, Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 CASES CITED : Tate & Lyle Food and Distribution Limited v Greater London Council [1982] 1 WLR 149 Tate & Lyle Food and Distribution Limited v Greater London Council [1982] 1 WLR 971 Tate & Lyle Food and Distribution Limited v Greater London Council [1983] 2 AC 511 United States Surgical Corporation v Hospital Products International Pty Limited [1983] 2 NSWLR 157 DECISION : See paragraph 55.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 9 December 2002

50004/01 ADLER MALLACH HOLDINGS PTY LIMITED -v- ROBERT SAMUEL ROBERTSON and NOALEEN ANNE DENNIS JUDGMENT 1 MASTER: The substantive proceedings were heard in the Commercial List by Acting Justice Brownie in July and August 2001. 2 In those proceedings the Plaintiff sought redress in respect to the solicitation of custom from the existing customers of a business conducted by the Plaintiff. The most significant part of that business consisted of the selling of consumables for franking machines. 3 That business had been sold by the First Defendant to the Plaintiff, the sale having been effected by deed dated 4 December 1996. 4 It was alleged by the Plaintiff that the First Defendant, using a false name, established a business in direct competition with the business sold by him to the Plaintiff, and that he solicited custom from the existing customers of that business. It was alleged against the Second Defendant that she effectively assisted the First Defendant in doing this, including later establishing in her own name a business called Digital Franking. 5 The hearing before Acting Justice Brownie occupied seven days in July and August 2001. His Honour delivered his reserved judgment on 20 August 2001 ([2001] NSWSC 691). In the course of that judgment His Honour said (at paragraph 58), I satisfied that the Plaintiff has made out its case, in respect of every cause of action pleaded, as against both defendants. I am satisfied that the plaintiff has proved at least some loss. The repeated statements of first defendant that the plaintiff's gross turnover exceeded expectations is no doubt a matter to be weighed, along with the other evidence, but it simply does not prove that the plaintiff suffered no net loss. In my view, the proposition that the plaintiff has suffered some loss is well established.