Hermescec v Carcagni [2008] NSWSC 183

New South Wales Supreme Court

CITATION : Hermescec v Carcagni [2008] NSWSC 183

HEARING DATE(S) : 26/02/08

JUDGMENT DATE : 6 March 2008

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Interlocutory injunction refused

CATCHWORDS : TRADE AND COMMERCE - restraint of trade - restrictive covenant in contract for sale of restaurant business - application for interlocutory injunction - serious question to be tried amply shown - balance of convenience - where grant of interlocutory relief would be equivalent to grant of final relief - interlocutory relief not granted but directions to be made for early preparation for final hearing

CATEGORY : Principal judgment

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA; (2001) 208 CLR 199 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 CASES CITED : Cayne v Global Natural Resources plc [1984] 1 All ER 225 Hunt v Pascoe (1990) 21 NSWLR 10 Orton v Melman [1981] 1 NSWLR 583 Trego v Hunt [1896] AC 7

PARTIES : Branko Hermescec - Plaintiff Roberto Carcagni - Defendant

FILE NUMBER(S) : SC 1534/08

COUNSEL : Mr N R Murray - Plaintiff Mr R D Marshall - Defendant

SOLICITORS : UTR Law - Plaintiff Patey & Murphy Solicitors - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

THURSDAY, 6 MARCH 2008

1534/08 BRANKO HERMESCEC v ROBERTO CARCAGNI JUDGMENT 1 The plaintiff, by his summons, seeks final relief by way of injunction and damages for alleged breach by the defendant of an express provision of a written agreement for the sale of a business between the plaintiff as buyer and the defendant as seller. The provision is a restraint of trade provision of the kind often included in such agreements. The relief claimed in the summons includes an injunction restraining the defendant from engaging in certain activities until 29 March 2009. 2 I am dealing now with the plaintiff's notice of motion by which he seeks injunctive relief pending trial of the action. The interlocutory restraint the plaintiff seeks is in the same terms as the permanent injunction claimed in the summons, save that it is expressed to apply only until further order. 3 The business concerned is a restaurant named "Benevenuti Treats of Tuscany" conducted in premises at 88 Darby Street, Cooks Hill. I shall refer to it as "Benevenuti". The plaintiff purchased this restaurant business from the defendant by written contract dated 28 March 2007. The transaction was completed on 12 April 2007, at which point the plaintiff went into possession. The defendant, a chef by calling, continued to work at the restaurant on a part-time basis for some time after completion and left for good on 26 November 2007. He says he acted as "the manager" during that period but the plaintiff does not accept that description.