Orleans Investments Pty Ltd & Anor v MindShare Communications Ltd [2009] NSWCA 40

New South Wales Court of Appeal

CITATION: Orleans Investments Pty Ltd & Anor v MindShare Communications Ltd [2009] NSWCA 40

HEARING DATE(S): 10 February 2009

JUDGMENT DATE: 10 March 2009

JUDGMENT OF: Spigelman CJ at 1; Allsop P at 2; Giles JA at 3

DECISION: Appeal dismissed with costs. Vary the order made by the trial judge by deleting the "including WPP", adding after the reference to cl 8 "a copy of which is set out in the Schedule", and including cl 8 in a schedule.

CATCHWORDS: PROCEDURE - trial judge mistakenly had regard to material not in evidence - later amended reasons - stated had come to his conclusion without regard to the material and had referred to it only as confirmatory of conclusion - whether denial of procedural fairness - whether apprehended bias - mistake disclosed and submissions heard - no question of procedural fairness - from initial reasons, conclusion all but demanded without regard to the material - that the reference was only confirmatory could not reasonably be questioned - no apprehended bias - CONTRACTS - promise not to engage in conduct which might harm respondent's name or reputation or that of a related body corporate (as defined) - whether necessary to prove knowledge that conduct might harm or injure etc - including that company disparaged was related body corporate - on construction of contract, not necessary - EQUITY - injunctive relief - breach of negative covenant - relief will be granted in terms of covenant unless good reasons to the contrary - relationship with principle that order should generally be expressed to make clear what is to be done or not done - not absolute principle - goes to discretion - on contract's construction, could be unintentional or unknowing breach - contractual acceptance of risk of unintended or unknowing breach - not satisfactory to leave respondent to remedy in damages - grant of relief upheld with incidental changes.