In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 Hearing dates: 19 - 22, 26 - 29 November 2013; 29 - 31 January 2014, 6 February 2014, 19 - 21 February 2014, 5, 7, 10 March 2014 Decision date: 16 June 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Plaintiffs required to make an election between equitable compensation and account of profits in respect of diversion of business. Parties to be heard as form of orders and costs. Catchwords: TRADE PRACTICES - misleading or deceptive conduct - whether alleged representations were made by relevant defendant - representations as to future matters - whether relevant representations were misleading or deceptive or likely to mislead or deceive - whether defendant had reasonable grounds in making alleged representations - whether plaintiffs had relied on alleged representations - whether it can be established that loss and damage suffered by plaintiffs was caused by alleged representations - application of Corporations Act ss 1041, 1041E and 1041H, Fair Trading Act 1987 (NSW) ss 41, 42, 68 and Trade Practices Act 1974 (Cth).

CONTRACTS - construction - where parties relevantly entered into share sale deed and shareholders agreement - where claims have been made in respect of, inter alia, misappropriation of monies, diversion of business and misuse of confidential information - whether relevant defendant had breached provisions under relevant agreements - post-contractual conduct - whether post-contractual conduct admissible to prove existence of relevant setoff agreement.

CONTRACTS - restraint of trade - where relevant clauses contained in share sale deed and shareholders agreement prohibited parties from being involved in business which is the same or similar type of business conducted by relevant company - whether relevant clause is void for uncertainty - requirement to offer participation to company before taking up opportunity - whether relevant clause can be characterised as a restraint of trade clause - whether relevant clauses were reasonable as between parties - whether relevant clauses protected a legitimate interest - whether relevant clauses are contrary to public policy under Restraint of Trades Act 1976 (NSW) - whether relevant defendant had breached restraint of trade provisions.