Films and Casting Temple v Malla [2013] NSWCA 377

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Films and Casting Temple v Malla [2013] NSWCA 377 Hearing dates: 14/10/2013 Decision date: 15 November 2013 Before: Ward JA at [1] Gleeson JA at [2] McDougall J at [3] Decision: Appeal dismissed with costs. [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: PRACTICE & PROCEDURE - PLEADINGS - defective pleadings - where pleadings mischaracterised the effect of a contractual provision - where actual terms of provision proved without objection - claim to be decided on the basis of the term as proved, not as pleaded - where claim for damages neither pleaded nor particularised - where respondent denied sufficient opportunity to adduce evidence relevant to the question of damages - whether appellant should be permitted to raise damages claim on appeal

CONTRACTS - restraint of trade - breach of contract - where respondent was required not to work on Indian film projects in Australia for 2 years without engaging, or procuring the engagement of, the appellant - where respondent subsequently worked on projects without the appellant - whether in fact any loss proved

DAMAGES - calculation of damages - loss of opportunity - where respondent was required not to work on Indian film projects in Australia for 2 years unless he engaged, or procured the engagement of, the appellant - whether primary judge erred in failing to assess the probability that the appellant would have been engaged for the relevant projects - where respondent denied sufficient opportunity to adduce evidence relevant to the question of damages