LaserBond Limited v Hooper

1. [1]

   The defendant, Mr Hooper, was one of the founders and is a former director of the plaintiff (LaserBond). In the latter half of 2023, Mr Hooper seems to have waged a campaign of disparagement against LaserBond and its current management on a social media site for investors. LaserBond commenced these proceedings by Summons in late December 2023. It filed a statement of claim in February 2024 whereby it sought relief under the Australian Consumer Law and in injurious falsehood against Mr Hooper. It also sought urgent interlocutory injunctive relief pending final determination of the proceedings.

2. [2]

   On 3 January 2024, the application for urgent interlocutory relief came before the duty judge in Equity. On that day, the parties reached an agreement which avoided the need for argument. At the request of the parties, the Court noted undertakings by Mr Hooper that he would refrain from making certain disparaging representations about LaserBond and its current management. The representations which he undertook not to make were those set out in paragraph 5(c) of the summons. The undertakings were expressed to be ‘pending further order of the Court’. LaserBond, through its counsel, gave the usual undertaking as to damages to secure Mr Hooper’s undertakings. The orders also noted, in effect, that the undertakings were offered without admission.

3. [3]

   In July 2024, after the parties had gone some way down the road of preparing the case for final hearing, they attended a mediation. The mediation was successful. The parties, together with several directors of LaserBond, executed a document entitled ‘Heads of Agreement’ in which they relevantly agreed as follows:

   1. (1)

      The parties would seek orders dismissing the proceedings within seven days of executing a deed. However, they agreed that the Heads of Agreement would bind them immediately upon execution.

   2. (2)

      The parties gave mutual releases from ‘all claims that are the subject of the proceedings’.

   3. (3)

      Mr Hooper gave an undertaking that he would not make the representations set out in paragraph 5(c) of the summons. The content of this obligation was essentially the same as the content of the undertaking given in January 2024, save that this was an undertaking to ‘LaserBond and its directors’ rather than the Court.

4. [4]

   The solicitors exchanged and all but agreed the terms of a draft deed of settlement, however it was not executed.

5. [5]

   In the months following settlement, Mr Hooper made posts to two social media sites in which he made representations that arguably included at least some of the representations that were within the scope of his January 2024 undertaking to the Court and also within the scope of his inter-partes undertaking in the Heads of Agreement.

6. [6]

   LaserBond now seeks orders to punish Mr Hooper for contempt of court on the footing that, despite settlement, Mr Hooper continued to be bound by the January 2024 undertakings.

7. [7]

   LaserBond also seeks orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) to give effect to the settlement. These orders would (a) require Mr Hooper to execute the deed in the form agreed in correspondence between the parties’ solicitors and (b) grant permanent injunctions to restrain Mr Hooper’s ongoing defiance of his inter-partes undertaking in the Heads of Agreement.

8. [8]

   For the reasons which follow, I decline to punish Mr Hooper for contempt. I will however grant the relief sought under s 73.

Background facts

1. [9]

   Mr Hooper was one of the initial directors of LaserBond and was one of the founders of its business, along with his parents Rex and Lilian. He ceased to be a director on 30 June 2020. He continued as a consultant but that role concluded on 24 February 2021. The current CEO is Mr Hooper’s brother, Wayne Hooper.

2. [10]

   Between about August 2023 and December 2023, there was communication between Mr Hooper and LaserBond about the prospect of Mr Hooper returning to the LaserBond board. Mr Hooper wanted to return but the directors and shareholders of LaserBond did not wish to have him back.

3. [11]

   HotCopper (www.hotcopper.com.au) advertises itself as Australia’s largest stock trading and investment forum. It is appropriately described as an investor community. As at the end of 2023, it boasted over seven million users annually. It is free to use and all posts are made publicly available regardless of whether a user has signed up or not. For each stock listed on the Australian Stock Exchange (ASX), HotCopper has a dedicated page that shows market information for that particular stock together with the most recent discussions posted by users about that stock.

4. [12]

   LaserBond is listed on the ASX and it has a dedicated page on HotCopper.

5. [13]

   On 22 December 2023 at 1.35PM, Mr Hooper posted a comment on the LaserBond page on HotCopper using the handle ‘Grasshopper59’:

6. [14]

   There was some communication between the parties but LaserBond was unable to persuade Mr Hooper to remove the 22 December 2023 post. Mr Hooper made some additional posts on the LaserBond page on HotCopper in the final week of December 2023.

7. [15]

   These proceedings were commenced by summons filed in Court with leave granted by the duty judge on 29 December 2023. The summons sought a range of interlocutory and final relief, including interlocutory orders in the nature of injunctions as follows:

8. [16]

   Similar injunctions were sought on a final basis. Final relief was sought on the basis of claims under the Australian Consumer Law and on the basis of injurious falsehood.

9. [17]

   Time for service of the summons was abridged by Walton J sitting as the Common Law duty judge and the matter was adjourned to the equity duty list before Slattery J on 3 January 2024 for the purpose of dealing with LaserBond’s application for urgent interlocutory relief. The plaintiff was represented by Mr Furlan of counsel and the defendant was represented by Mr Leather of BlackBay Lawyers. At the hearing, following direction from Slattery J about the appropriate scope of any undertakings, the parties handed up short minutes of order which were as follows:

10. [18]

    Slattery J made orders in court that day in accordance with the short minutes of order.

11. [19]

    The matter then proceeded in the usual way. The plaintiff filed and served a statement of claim on 7 February 2024. The defendant filed and served a defence on 6 March 2024.

12. [20]

    On 18 July 2024, the parties attended a private mediation conducted by the Honourable P.A. Bergin AO SC. Mr Hooper was in attendance with his solicitor, Mr Leather, together with Ms Orlic, also of BlackBay Lawyers. The plaintiff was represented by counsel and solicitors and a number of directors.

13. [21]

    The proceedings were settled at mediation on the basis of the Heads of Agreement. It is appropriate to set the terms of that document out in full:

14. [22]

    The solicitors for the parties duly exchanged and commented on a draft deed. The plaintiff’s solicitors forwarded a draft on 2 August 2024. They received a response with minor tracked changes on 15 August and then sent a revised draft with two additional minor edits on 20 August. The solicitors for the plaintiff have to date received no response to their 20 August email.

15. [23]

    In the meantime, Mr Hooper began to post further public comments on LaserBond’s HotCopper page. One such comment was made on 20 July 2024 and it shows that Mr Hooper had returned to his theme of criticising the management of the company. It was a comment on a thread concerning the current share price and simply read: ‘Their Silence is Deafening! A ship without drive cannot be steered and is Dead in the Water!!’

16. [24]

    This post prompted the solicitors for LaserBond to contact the solicitors for Mr Hooper on 7 August 2024. There was a discussion between Ms Reynolds, an employed solicitor at HWL Ebsworth (HWLE), and Ms Orlic of BlackBay Lawyers in which Ms Reynolds pointed out that:

17. [25]

    There was no suggestion at that point that either the plaintiff or anyone at HWLE considered the 20 July 2024 post to be a breach of the interlocutory undertaking.

18. [26]

    Starting on 14 September 2024, Mr Hooper made a series of further posts on HotCopper, many of which were highly derogatory of the plaintiff and its management. Posts were made on September 14, 17, 23 (several posts), 24, 25 (two posts) and 27. Only two of these are the subject of the contempt charge.

19. [27]

    On 17 September 2024 at 10.01AM, Mr Hooper made the following post (the first HotCopper post):

20. [28]

    On 25 September 2024 at 3.13PM, Mr Hooper made a further and much longer post in response to an earlier post by another user (the second HotCopper post). That other user seems to have specifically asked Mr Hooper to give an explanation about his dispute with the company. Mr Hooper’s post contained material that arguably carried at least some of the representations that were the subject of his undertakings.

21. [29]

    On 27 September, Ms Reynolds made a request in the NSW Registry Online Court for the directions hearing listed on 1 October 2024 to be adjourned, which she explained as follows:

22. [30]

    The prospect of prosecuting Mr Hooper for contempt had not been raised with Mr Hooper’s solicitors prior to this time. Shortly thereafter, Mr Hooper removed almost all of the posts he had made between 14 and 27 September, including the first Hotcopper post and the second HotCopper post. There is no evidence as to why he removed the posts. Two of his other posts made during this period remain on the website, but no complaint is made about them.

23. [31]

    In addition to his activity on HotCopper, Mr Hooper made several posts on LinkedIn. In September 2024, someone on behalf of LaserBond published a post on LaserBond’s LinkedIn page. The post congratulated a LaserBond employee for completing an engineering qualification. On 13 October 2024, Mr Hooper published two comments on LaserBond’s post. One of these (the LinkedIn post) was the subject of the third contempt charge, and was as follows:

24. [32]

    Mr Hooper made further posts on LinkedIn on 15 October but no complaint is made about these.

Procedural background

1. [33]

   On 21 October 2024, LaserBond filed a notice of motion and a statement of charge. The notice of motion was supported by an affidavit of Ms Reynolds. Ms Reynolds said in paragraph [3] of that affidavit that LaserBond would rely on the principal affidavit and exhibit that had been relied on in support of the original application for urgent interlocutory relief in December 2023.

2. [34]

   The notice of motion seeks (a) declarations that Mr Hooper is guilty of a contempt of court by reason of making the two HotCopper posts and the LinkedIn post and (b) orders pursuant to s 73 of the Civil Procedure Act requiring Mr Hooper to execute the draft deed and also permanently restraining him from making further publications in breach of the Heads of Agreement.

3. [35]

   So far as contempt is concerned, the declaration sought in relation to each post is that Mr Hooper ‘wilfully breached his undertaking to the Court…and is guilty of a contempt of court’. LaserBond seeks orders that ‘there be verdict on Charges 1 to 3 of the Statement of Charge’.

4. [36]

   The statement of charge identified three charges, one for each of the posts. In each case, it was stated that the post was ‘a serious communication’, that it included certain representations, that it was made to the public, that it was made in trade or commerce and that Mr Hooper ‘made the representation in wilful disobedience of his undertaking to the Court.’

5. [37]

   The notice of motion and affidavit of Ms Reynolds were served on BlackBay Lawyers and the evidence satisfies me that Mr Hooper was provided with these documents. He has also been informed about the progress of the notice of motion, including procedural orders for the filing of evidence. However, Mr Leather explained in an affidavit that he has had continuing difficulties obtaining instructions from Mr Hooper. He has made numerous attempts to contact him for the purpose of obtaining instructions in relation to the notice of motion but has had no success. This is despite the fact that in November 2024 Mr Hooper told Mr Leather that he (Mr Hooper) intended to file and serve evidence in relation to the notice of motion.

6. [38]

   On 21 March 2025, out of an abundance of caution, LaserBond caused the notice of motion, statement of charge, affidavit of Ms Reynolds and the order setting the motion down for hearing to be personally served on Mr Hooper at his home. I am satisfied that the documents were duly served on that date. I am in any event satisfied that these documents (save for the order listing the matter for hearing) had already been brought to Mr Hooper’s attention by Mr Leather.

7. [39]

   When the matter was called, Mr Hooper was not in attendance. Mr Gasic of BlackBay Lawyers appeared but explained that although still on the record, BlackBay Lawyers had been unable to contact or obtain any instructions from Mr Hooper. Mr Gasic very courteously remained for the hearing but was understandably in no position to make any submissions.

8. [40]

   It is ordinarily highly undesirable for a charge of contempt to proceed in the absence of the alleged contemnor: Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46. One reason for this is that, as I will explain, the Court has a discretion as to whether to punish a person for a contempt and there are circumstances in which it is appropriate for the contemnor to purge their contempt by giving an apology or by giving some assurance or taking some action that avoids the necessity to proceed with a charge. A contemnor should have the opportunity to do so up until the Court decides to proceed to hear the contempt charge. It is also ordinarily necessary to be sure that the contemnor knows exactly the case that is put against them and has an opportunity to answer the charge. Even in cases of civil contempt it is appropriate for the charge to be read to the defendant.

9. [41]

   Nevertheless, in circumstances where it was quite clear that Mr Hooper had been served with all relevant material, and where it was equally clear that serious but unsuccessful efforts had been made by his own solicitor to secure his attendance, I was content to proceed to hear the application in Mr Hooper’s absence. This decision was informed by an authority relied on and handed to me by the solicitor for the plaintiff: Ronowska v Kus (No 2) [2012] NSWSC 817. In that decision, Pembroke J heard contempt proceedings in the absence of the contemnor. He did so on the basis of a finding that the contemnor, through his conduct, had voluntarily waived his right to be present at the hearing. The contemnor had deliberately evaded personal service whilst at the same time communicated directly with Pembroke J’s chambers. There had also been a previously adjourned hearing.

10. [42]

    For reasons I will now explain, and despite the thoughtful submissions of Mr Furlan who appeared for LaserBond, I decline to punish Mr Hooper for contempt. If the contrary had occurred and, following the hearing and my consideration of the materials, I was in any way minded to make a finding of contempt against Mr Hooper, I would not have done so without first insisting on Mr Hooper’s attendance before the Court to enable him to answer the charges. Proceedings in which a conviction for contempt is sought should only be heard ex parte in ‘an extraordinary case’ (Doyle v Commonwealth at 518-519; Professor David Rolph, Contempt (2023, Federation Press) at 762). Despite my satisfaction that Mr Hooper had been personally served with the relevant documents and was aware of the contempt hearing yet failed to attend, I do not believe that the circumstances here were of such an extraordinary nature to permit a finding of contempt in his absence.

11. [43]

    In my view, the appropriate course in that case would be to issue a bench warrant for the contemnor to be brought to Court and answer the case before them, consistent with the decisions of the Court of Appeal in Attorney-General for New South Wales v Hayden (1994) 34 NSWLR 638 and Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 (see also Prothonotary of the Supreme Court of New South Wales v Jarvie [2016] NSWSC 1343).

Civil Contempt

1. [44]

   LaserBond summarised the principles to be applied in an application to punish a person for contempt where the conduct involves breach of a court order or undertaking as follows.

2. [45]

   First, the giving of an undertaking to the Court is equivalent to an injunction. Conduct that involves breach of an undertaking may be punishable as a contempt: Gonzales v State Coroner of New South Wales (No 2) [2018] NSWSC 1093 at [12]-[14]; In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 93 at [52].

3. [46]

   Next, the breach of an undertaking is ordinarily a civil and not a criminal contempt: Novelly v Tamqia Pty Ltd [2024] NSWCA 167; Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 530.

4. [47]

   The elements of civil contempt must be proven beyond reasonable doubt: Witham v Holloway.

5. [48]

   In the case of contempt arising from the breach of an undertaking, the following additional principles apply:

   1. (1)

      It must be established that the terms of the undertaking were clear, unambiguous and capable of compliance: In the matter of Jimmy’s Recipe Pty Ltd.

   2. (2)

      It is not necessary to prove that the contemnor had knowledge of their undertaking: Alexander v Crawford [2003] NSWSC 426 at [33]-[35]; Duncan-Strelec v Tate [2008] NSWSC 1145 at [17]-[18]; In the matter of Jimmy's Recipe Pty Limited at [52]. It is also not necessary to serve a copy of the undertaking with a copy of penal notice on the party bound: Alexander v Crawford at [35]-[39].

   3. (3)

      There is no requirement to prove that the contemnor intended to breach the undertaking. All that is required is that the contemnor intended to do the action constituting the breach: Re Group Pty Ltd v Kazal [2017] FCA 1084 at [73].

   4. (4)

      Enough must be proven for the Court to conclude that the action or inaction said to constitute the breach was deliberate and not casual, accidental or unintentional: Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 at [64].

6. [49]

   These principles may be accepted at a level of generality. However, it is also necessary to bear some additional matters in mind.

7. [50]

   The undertaking given by Mr Hooper on 3 January 2024 was an interlocutory undertaking. The notation to which the undertaking was subject made clear that it was given without admission as to the substantive issues in dispute, pending resolution of those substantive issues. In Australian Consolidated Press v Morgan (1965) 112 CLR 483; [1965] HCA 21, Barwick CJ described a motion to punish a party for contempt of such an undertaking as a ‘suit for what was in substance the enforcement for [the applicant’s] own benefit of the undertaking given to the Court for their protection pending the hearing of the suit’ (at 489). Windeyer J described the undertaking in that case as ‘a purely interlocutory undertaking’ (at 496).

8. [51]

   The undertakings to the court – being Mr Hooper’s undertaking as well as LaserBond’s concomitant undertaking as to damages – were procedural in nature, designed to safeguard the parties’ rights on a without prejudice basis until the determination of the dispute. As such, LaserBond was entitled to waive compliance with Mr Hooper’s undertaking. In Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 217, Lord Oliver of Aylmerton explained that a civil contempt is punishable by the Court ‘at the instance of the party for whose benefit the order was made and which can be waived by him’. As Professor Rolph put it in Contempt at 152, ‘[t]he aggrieved party is not obliged to complain about another person’s non-compliance with a court order, injunction or undertaking.’

9. [52]

   A related proposition emerges from cases such as Gilbert v Gilbert [1955] St R Qd 245 and Melksham v Fraser Island Barge Transport Pty Ltd [2003] 1 Qd R 520; [2002] QCA 218. Where parties enter into an agreement or arrangement after consent orders are made, the existence of the later agreement or arrangement may have an effect on the availability of the consent order to found a complaint of contempt. In Gilbert v Gilbert, Townley J said at 249:

10. [53]

    Whether the later arrangement does have such an effect will depend on the circumstances of the particular case: for example, see Melksham v Fraser Island Barge Transport Pty Ltd at 525; see also Prof Rolph, Contempt at 546.

11. [54]

    In the present case, these considerations are relevant in two ways. First, they inform the relationship between the undertakings given on 3 January 2024 and the immediately binding heads of agreement reached on 18 July 2024. For the charge of contempt to succeed, it must be clear that the interlocutory undertakings survived the final settlement of the proceedings as expressed in the Heads of Agreement. Secondly, if those undertakings did survive and if they were breached, it will be appropriate to take these same matters into account in deciding whether the Court should exercise its power to punish Mr Hooper’s non-compliance by convicting him of contempt in any event.

Was Mr Hooper still bound by the interlocutory undertaking?

1. [55]

   The Heads of Agreement was entered into on 18 July 2024 and became immediately binding on the parties. Clause 11 made clear that the parties intended the operative clauses, including the mutual releases in clause 3, to take effect upon execution. The fact that the parties intended to enter into a deed ‘to more formally record their settlement agreement’ was expressly stated not to affect this fact. Nor was settlement made conditional on the Court making any particular order in the future.

2. [56]

   LaserBond submitted that the 3 January 2024 orders remained on foot until such time as the Court made an order dismissing the proceedings following execution of the deed. That may be so, but the proposition that Mr Hooper remained bound by the undertaking during that period is difficult to reconcile with the language of the Heads of Agreement as a whole and with clause 3 in particular. The parties did not consider that the underlying claims which were the subject of the proceedings should remain in dispute pending the making of a final order. Rather, they sought and obtained mutual releases that put an immediate end to the litigation even prior to the making of final orders. The Heads of Agreement could have been relied on as a plea in bar to any and all claims ‘that are the subject of the proceedings and any liability arising from other events occurring from August 2023 to date’. These were sweeping releases.

3. [57]

   It is also important to recall the notation to which Mr Hooper’s undertaking was subject. Although not quite expressed as being ‘without admission’, that was its substance. The undertaking was intended to operate in a way that preserved Mr Hooper’s rights in relation to the subject matter of the dispute until those rights could be determined on a final basis. But by the time of the conduct which LaserBond now seeks to punish as contempt, that dispute had been conclusively resolved on the terms of the Heads of Agreement. It is difficult to know how the undertaking could have operated ‘subject’ to the notation after 18 July 2024 because, from then on, Mr Hooper’s and LaserBond’s rights in relation to the dispute were entirely resolved on the basis of the Heads of Agreement.

4. [58]

   The substantive obligations assumed by Mr Hooper in the Heads of Agreement were twofold. He undertook to LaserBond and its directors (who were not parties to the litigation) not to ‘denigrate or publish insults about’ the other parties to the deed. He also gave the undertakings in clauses 5(a) to (c) which overlap almost entirely with the interlocutory undertaking given on 3 January 2024.

5. [59]

   This, coupled with the fact that the Heads of Agreement contained the sweeping, immediately-effective, mutual releases to which I have referred, suggests that the parties considered their rights in relation to the subject of the litigation to be governed by the Heads of Agreement on and from the time it was executed. In substance, LaserBond gave up all existing claims against Mr Hooper in return for the inter-partes undertakings contained in the Heads of Agreement. In my view, the claims which the parties released included any claims to enforce compliance with the interlocutory undertakings.

6. [60]

   I therefore dismiss all three charges.

Alternatively, would the Court punish Mr Hooper for contempt?

1. [61]

   If I am wrong in my conclusion about the ongoing operation of the 3 January 2024 undertakings, it is appropriate to consider whether Mr Hooper’s conduct was such as to warrant the invocation of the Court’s extraordinary jurisdiction to punish for contempt at all. It may, in fact, be appropriate to consider this question even before dealing with or at the same time as the substance of the application: see Prof Rolph, Contempt at 28.

2. [62]

   The conduct in question was the publication of three online posts in relation to a publicly listed company. Two of them were on HotCopper and remained in place for less than two weeks before being voluntarily removed. There is no evidence as to how many people viewed them. The third post was on LinkedIn. There was no evidence as to whether it remained online at the date of the hearing, nor as to how many people may have viewed it in the meantime.

3. [63]

   The making of these three posts was almost certainly a breach of the Heads of Agreement. As such, LaserBond appears to be entitled to damages for breach of the undertakings which it secured in settlement of the proceedings. I cannot see why its entitlement to damages would be affected by the fact that the deed contemplated by clause 11 has not yet been entered into.

4. [64]

   In In Re Clements (1877) 46 LJ Ch 375 at 383, Sir George Jessel MR said:

5. [65]

   There are innumerable statements to like effect in the caselaw, both in the UK and Australia. Many of them are collected at pages 11 to 13 of Prof Rolph, Contempt. Authority well and truly justifies the learned author’s observation at p 11 that the ‘court’s power to deal with a person for contempt should only be exercised where there is a clear case falling for swift and decisive action. Contempt of court should be the last resort, not the first.’

6. [66]

   The clear availability of an alternative remedy, combined with the fact that the substantive dispute in respect of which the undertaking was given had been finally concluded as between the parties, as well as the fact that at least two of the three offending posts had already been removed, lead me to conclude that this is not a case in which it would have been appropriate for the Court to exercise its power to punish Mr Hooper for contempt. I would have declined to do so even if the charges had been made out.

Section 73

1. [67]

   LaserBond next seeks orders to give effect to the settlement embodied in the Heads of Agreement. The relief it seeks is twofold. First, it seeks orders requiring Mr Hooper to execute and deliver the deed. In this respect, paragraphs 7(a), (b) and (c) of the notice of motion seek that the Court:

2. [68]

   Secondly, LaserBond seeks permanent injunctions against Mr Hooper in a form that reflects all of his obligations in the Heads of Agreement. In this respect, paragraph 7(d) of the notice of motion seeks that the Court:

3. [69]

   The Court has power to make orders declaring the existence of a settlement agreement and requiring a party to do the things necessary to give effect to that agreement: s 73 Civil Procedure Act. I am comfortably satisfied that the parties settled proceedings on the basis of the Heads of Agreement. However, the evidence shows that Mr Hooper has failed to execute and deliver the deed, as he is required to do. It is appropriate in these circumstances for the Court to make orders in accordance with paragraphs 7(a), (b) and (c) of LaserBond’s notice of motion.

4. [70]

   The question of whether the Court should make the orders sought in paragraph 7(d) is a little more complicated.

5. [71]

   The difficulty is that the whole gist of the Heads of Agreement was that LaserBond gave up its claim to permanent injunctions in return for the inter-partes undertakings and other promises. In a sense, permanent injunctive relief in the same terms as the Heads of Agreement would revive (and would in fact go beyond) the final relief which LaserBond was originally seeking in the proceedings. In that sense, the orders would seem to set the settlement at nought.

6. [72]

   LaserBond submitted that it is appropriate for the Court to make an order under s 73 that amounts to an order for specific performance of the terms of settlement. It points out that the section, at least in significant part, is designed to avoid a multiplicity of proceedings because it allows a party to enforce a settlement in the same proceedings without having to start fresh enforcement proceedings. I was referred in this respect to the reasons of Basten JA in Gorczynski v Bendigo and Adelaide Bank Ltd [2016] NSWCA 170 at [6]. I was also referred to Yu v Yu [2020] NSWSC 1904 where, at [121], Williams J made injunctive orders for (in effect) specific performance of a settlement agreement.

7. [73]

   The bulk of Mr Hooper’s obligations in the Heads of Agreement are in the nature of covenants not to disparage LaserBond or its directors. The covenants are in some respects indistinct, especially in applying only to those representations made ‘in serious communications’. Real questions could arise as to the meaning of that expression, particularly in circumstances where it is clearly intended to mean something other than ‘in trade or commerce’. In Orleans Investments Pty Ltd v MindShare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40 (Orleans Investments), the Court of Appeal considered a challenge to injunctions which had been granted in terms that mirrored negative non-disparagement covenants contained in a deed. Those covenants, like the terms of the Heads of Agreement here, were somewhat indistinct in their scope. At [99] and following, Giles JA explained that the primary judge had been correct to grant the injunctions despite these difficulties. At [106], he said:

8. [74]

   I am satisfied that this is a case where it is appropriate to grant the relief sought. The interests being protected are largely reputational and the provisions of the agreement relating to that matter are the very provisions which Mr Hooper has demonstrated a willingness to flout. It is inevitable that if I refuse relief under s 73, LaserBond will bring fresh proceedings seeking almost identical relief based on the same evidence. Should it do so and if Mr Hooper again chooses not to appear, there is a good prospect that it would be entitled to that relief.

9. [75]

   I take into account that the orders sought, like the Heads of Agreement itself, operate by reference to somewhat indistinct concepts. However, they are the terms of the bargain which the parties entered into to bring finality to their dispute. As in Orleans Investments, it is appropriate to grant relief in terms that holds the parties to their bargain.

10. [76]

    As to costs, LaserBond has failed on the contempt issue but succeeded on the s 73 issue. I consider it appropriate for it to have half of its costs of the notice of motion.

ORDERS

1. [77]

   The orders of the Court will therefore be as follows:

   1. (1)

      Pursuant to section 73 of the Civil Procedure Act 2005 (NSW), the Court:

   2. (2)

      The proceedings are otherwise dismissed.

   3. (3)

      The defendant is to pay 50% of the plaintiff’s costs of the notice of motion filed 21 October 2024.

   4. (4)

      A copy of these orders together with my reasons be served personally on the defendant.