NSW Caselaw
New South Wales Supreme Court
CITATION : Austress-Freyssinet Pty Limited & Ors v Kowalski [2007] NSWSC 399
HEARING DATE(S) : 21 and 22 February 2007
JUDGMENT DATE : 27 April 2007
JURISDICTION : Equity Division
JUDGMENT OF : Windeyer J at 1
DECISION : Injunction to restrain conduct in breach of restraint of trade provision.
CATCHWORDS : CONTRACTS - restraint of trade - restraint period of three years after termination of agreement by exercise of option - restraint pursuant to shareholders agreement not solely employment agreement - whether restraint contrary to public policy - whether restraint period reasonable
LEGISLATION CITED : Restraints of Trade Act 1976
Cactus Imaging Pty Limited v Peters [2006] NSW SC 717 CASES CITED : Connors Bros Ltd v Conners [1940] 4 All ER 179 Stenhouse Australia Ltd v Phillips [1973] 2 NSWLR 691
Austress-Freyssinet Pty Limited (First Plaintiff) Austress-PSC Design Pty Limited (Second Plaintiff) PARTIES : Freyssinet SAS (Third Plaintiff) Immer (No 141) Pty Limited (Fourth Plaintiff) Andrew Anthony Kowalski (Defendant)
FILE NUMBER(S) : SC 3164 of 2006
COUNSEL : Mr P M Wood with him Mr M Izzo (Plaintiffs) Mr S T White SC (Defendant)
SOLICITORS : Mallesons Stephen Jaques (Plaintiffs) Harris Freidman Hyde Page (Defendant)
- 14 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
WINDEYER J
FRIDAY 27 APRIL 2007
3164/06 AUSTRESS-FREYSSINET PTY LIMITED & 3 ORS V ANDREW ANTHONY KOWALSKI JUDGMENT Issue 1 Whether a restraint clause in a contract should be enforced. Parties 2 The plaintiff, Austress-Freyssinet Pty Limited (Austress) is a company, the shares of which are owned as to 20% by Freyssinet SAS (Freyssinet), the third plaintiff, and as to 80% by Immer (No 141) Pty Limited (Immer), the fourth plaintiff. Austress in turn owns 100% of the shares in Austress-Freyssinet (Vic) Pty Limited, but that company is not a party. 3 Immer is a company, the shares of which are owned as to 75% of voting shares and 68.75% of ordinary shares by Freyssinet and as to 25% of voting shares and 31.25% of ordinary shares by Andrew Kowalski, the defendant, (Kowalski).
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