Sidameneo (No 456) Pty Ltd v Alexander (No 2) [2012] NSWCA 87

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sidameneo (No 456) Pty Ltd v Alexander (No 2) [2012] NSWCA 87 Hearing dates: On the papers Decision date: 18 April 2012 Before: Beazley JA at [1]; Basten JA at [2]; Young JA at [3] Decision: (1) Dismiss the appellant's motion of 22 December 2011, seeking declaratory relief. (2) Order that the appellant pay the costs of the first, second and third respondents of the motion. (3) Dismiss the appeal from the costs judgment in the Equity Division. (4) Dismiss the application to vary order (2) made on 21 December 2011, requiring the appellant to pay the respondents' costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: COSTS- damages claim- central issue validity of covenant in restraint of trade- appellant succeeds on that issue but fails generally- insufficient grounds to prevent usual order that appellant pay total costs- indemnity costs ordered below- appellant unsuccessful in appeal- order not disturbed.

DECLARATION- whether appropriate to make a declaration as to the validity of covenant- declaration is within court's discretion but generally should not be granted if it serves no useful purpose- not ordinarily appropriate to make declarations as to "intermediate conclusions" of a court leading to a final order- declaration not granted. Cases Cited: AMP Fire and General Insurance Co Ltd v Dixon [1982] VR 833 Biss v Smallburgh RDC [1965] Ch 335 Buckley v Tutty [1971] HCA 71; 125 CLR 353 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Dysart (Earl) v Hammerton & Co [1914] 1 Ch 822 Fred, Wilkins and Brothers Ltd v Weaver [1915] 2 Ch 322 Global Funds Management (NSW) Ltd v Rooney (1994) 36 NSWLR 122 Gray v Sirtex Medical Ltd [2009] WASC 126 Hammerton v Dysart (Earl) [1916] 1 AC 57 Hope v Bathurst City Council (NSW Supreme Court, MH McLelland J, 8.4.1983, unreported) Kores Manufacturing Co Ltd v Kolok Manufacturing Co Ltd [1959] Ch 108 Marion White Ltd v Francis [1972] 1 WLR 1423 Marshall v English Electric Co Ltd [1945] 1 All ER 653 Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1179 Sydney City Council v Greek Australian Finance Corporation Pty Ltd (1974) 32 LGRA 32 Sydney Ferries v Morton (No 2) [2010] NSWCA 238 Symbion Medical Centre Operations Pty Ltd v Alexander [2011] NSWSC 701 Warner Bros Records Inc v Rollgreen Ltd [1976] QB 430 Warramunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437 Category: Costs Parties: Sidameneo (No 456) Pty Ltd (Appellant) Richard Spence Alexander (First Respondent) Howard John Oxley (Second Respondent) Nicholas Robin Smith (Third Respondent) Mina Nakhla (Fourth Respondent) Healthscope Medical Centres Pty Ltd (Fifth Respondent) Representation: Counsel: