Del Casale & Ors. v. Artedomus (Aust) Pty. Limited (No.2) [2007] NSWCA 305

New South Wales Court of Appeal

CITATION: Del Casale & Ors. v. Artedomus (Aust) Pty. Limited (No.2) [2007] NSWCA 305

HEARING DATE(S): Matter dealt with on written submissions in Chambers

JUDGMENT DATE: 31 October 2007

JUDGMENT OF: Hodgson JA at 1; McColl JA at 1; Campbell JA at 1

DECISION: 1. Grant leave to the appellants to appeal the orders made by the trial judge on 12 April 2006 ("the Orders"). 2. Appeal allowed. 3. Set aside the orders and in substitution thereof make the following orders: i) Declare that by arranging and effecting the importation of Pietra di Modica (by whatever name) through the third defendant, the first defendant contravened clause 7 of the agreement he had with the plaintiff not to compete with the plaintiff for a period of three years from 4 December 2002 in New South Wales; ii) Declare that the plaintiff is entitled to an enquiry as to damages as against the first defendant in relation to the contravention referred to in order (i) above; iii) Order that upon the plaintiff notifying the Court, within fourteen days from the date of these orders, of its intention to prosecute the enquiry as to damages referred to in order (ii) herein, an enquiry be held before an Associate Justice to determine the damages, if any, that the plaintiff is entitled to in respect of the contravention referred to in order (i); ; iv) Order that the costs of the enquiry referred to in order (iii) abide the results of that enquiry; v) Order that the proceedings are otherwise dismissed; vi) Order the plaintiff pay one-half of the defendants' costs of the proceedings (for the benefit of the second and third defendants) and that the first defendant pay two-thirds of the plaintiff's costs of the proceedings; vii) Order that the respondent pay one-half of the appellants' costs of the appeal and application for leave to appeal (for the benefit of the second and third appellants) and a further one-quarter of the appellants' costs of the appeal and application for leave to appeal (for the benefit of the first appellant).