Tasman Fighters Pty Ltd v Teremoana
[2024] QSC 226
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- Notable Unreported Decision
- Tasman Fighters Pty Ltd v Teremoana[2024] QSC 226
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Tasman Fighters Pty Ltd v Teremoana[2024] QSC 226
Tasman Fighters Pty Ltd v Teremoana[2024] QSC 226
SUPREME COURT OF QUEENSLAND
CITATION: | Tasman Fighters Pty Ltd v Teremoana [2024] QSC 226 |
PARTIES: | Tasman Fighters Pty Ltd (applicant) v Teremoana Teremoana (respondent) |
FILE NO/S: | BS 11187 of 2024 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 20 September 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 September 2024 |
JUDGE: | Martin SJA |
ORDER: |
|
CATCHWORDS: | EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – GENERALLY – where the respondent, a boxer, entered into a promotion agreement with the applicant, a professional boxing promotion company – where the respondent has entered into an agreement with another promoter, Matchroom Boxing, for them to be his promoter on an exclusive basis – where the applicant seeks an interlocutory injunction restraining the respondent from participating in any boxing match without its prior consent or entering into any agreement for the promotion of any boxing matches in relation to him – where the respondent argues that the applicant has breached the agreement and he has, as a consequence, terminated it – whether the respondent should be so restrained Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, cited Bulldogs Rugby League Club Ltd v Williams [2008] NSWSC 822, cited D&L Events Pty Ltd v Opetaia [2023] QSC 279, cited Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640, cited Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83, cited |
COUNSEL: | G Sirtes SC and S Baron Levi for the applicant W Tolton for the respondent |
SOLICITORS: | Woods & Day Solicitors for the applicant Jeff Horsey Solicitor for the respondent |
- [1]Teremoana Teremoana is a boxer. On 1 January 2021 he entered into a “Boxer Promotion Agreement” (the Agreement) with Tasman Fighters Pty Ltd (Tasman Fighters).
- [2]Mr Teremoana says that Tasman Fighters has breached the Agreement and he has, as a consequence, rescinded it.
- [3]Tasman Fighters seeks an interlocutory injunction restraining him from participating in any boxing match without its prior consent or entering into any agreement for the promotion of any boxing matches in relation to him.
- [4]After I heard the submissions from the parties, I made an order in terms of the interlocutory relief sought. These are my reasons for doing so.
The parties enter into an agreement
- [5]The agreement records that Mr Teremoana is a professional boxer who wished to obtain certain promotional services and commitments from Tasman Fighters to further his career as a professional boxer and that he had agreed to appoint Tasman Fighters as his exclusive promoter. The terms of the agreement relating to the number of boxing matches to be arranged by Tasman Fighters for Mr Teremoana is at the foot of his claim of repudiation by Tasman Fighters.
- [6]Under the heading “Promotions and Payments”, sub-clause 3 records:
“It is intended that there be at least four Boxing Matches each calendar year during the initial term of this Agreement in which the Fighter will participate. The only exception to this Agreement is if there is another COVID-19 breakout.”
- [7]The term of the agreement was from 1 January 2021 to 1 January 2025 with an automatic extension for a further term of two years subject to Tasman Fighters having met all its material obligations under the Agreement. Under the heading “Minimum number of Boxing Matches per year” the following appears:
“TF will use all reasonable endeavours to provide to the Fighter a minimum of four (4) Boxing Matches per 12 months, unless mutually agreed otherwise between the parties, but acknowledging that TF will not be in breach of this clause to the extent that TF’s failure is the result of the Fighter’s failure to approve reasonable opponents or injury. The 12 months is from the commencement date and each anniversary of that date, not the calendar year.”
- [8]Under the heading “Fighter Obligations” the following appears:
- “(i)The Fighter appoints Tasman Fighters as his exclusive promoter in accordance with the terms and conditions of this Agreement. The Fighter will train diligently for each Boxing Match and attend and fight in the Boxing Matches.”
- [9]Under the heading “Fighter Representations and Warranties” the following appears:
- “Fighter [sic] represents and warrants that:
- 1.he is not a party to, and will not during the Term enter into, any agreement to fight in a Non-Tasman Fighters Boxing Match, without Tasman Fighters’s [sic] prior written consent;
- …
- 3.he is not a party to, and will not during the Term enter into, any agreement which conflicts or competes with the provisions of this Agreement, or which purports to grant anyone else conflicting or competing rights or any rights which would interfere with the full and complete performance by the Fighter of his obligations under this Agreement or the full and complete exercise or enjoyment by Tasman Fighters of any of the rights granted to it under this Agreement;
- 4.he will not participate in any Non-Tasman Fighters Boxing Match without Tasman Fighters’s [sic] prior written consent.”
- [10]The Agreement also provides for the fees payable to Mr Teremoana and for Tasman Fighters to pay certain identified expenses of Mr Teremoana.
- [11]On 27 May 2024 Mr Teremoana’s solicitor issued a Notice of Termination. It refers to the Agreement and says the following:
- “The terms of the agreement were, inter alia, that you would ‘provide the Fighter with a minimum of four boxing matches per calendar year’.
- We are instructed that you have provided our client with three fights pursuant to the agreement, namely:
- 1.Gold Coast on 23rd October 2021;
- 2.Fortitude Valley 4th December 2021
- 3.Fortitude Valley 10th September 2022
- On our calculations, you should have provided our client with a minimum of 12 fights between the 1st January 2021 and today’s date. This is so even if the pandemic were to be taken into account.
- Consequently, you are in breach of any and all agreements between yourself and our client.
- We are instructed to advise you that with immediate effect our client terminates any and all agreements between yourself and our client. This includes the proposed extension.”
- [12]That was followed by correspondence between Tasman Fighters, Mr Teremoana’s solicitors, and the solicitors for Tasman Fighters.
- [13]In a letter of 1 July 2024, the solicitors for Tasman Fighters said, among other things that it was incorrect that their client was required to provide Mr Teremoana with a minimum of 12 fights and that their client was only required to “use all reasonable endeavours to provide to the Fighter a minimum of four (4) boxing matches per 12 months”.
- [14]The applicant provided evidence of various matters which occurred since the agreement commenced. They included: the restrictions imposed during the COVID pandemic, Mr Teremoana’s back injury and his intention to return to amateur boxing. These are matters which are relevant but the resolution of any issues concerning them can await the trial.
The relevant principles
- [15]On an application for an interlocutory injunction, an applicant must demonstrate that:
- it has a prima facie case with a probability of success; and
- that the balance of convenience favours it.[1]
Is there a prima facie case?
- [16]The issue for determination on the current state of the application is whether or not the purported termination of the Agreement was valid or not. The basis of the termination by Mr Teremoana was his interpretation of the requirements of the Agreement, namely that Tasman Fighters had to arrange at least four boxing matches in each 12-month period of the Agreement. That, according to the applicant, is not a term of the Agreement. The Agreement records the intention of the parties about the number of matches to be organised but goes on, as is set out above, to provide that Tasman Fighters is only required to use “reasonable endeavours” to provide those matches.
- [17]The meaning of a term like “reasonable endeavours” was considered by the High Court in Electricity Generation Corporation v Woodside Energy Ltd[2] where the majority observed that an obligation expressed in that way is not an absolute or unconditional obligation. The majority also referred to the High Court’s decision in Transfield Pty Ltd v Arlo International Ltd[3] where Mason J referred to a provision requiring the appellant to use best endeavours as indicating a standard of endeavour which is measured by what is reasonable in the circumstances having regard to the nature, capacity, qualifications and responsibilities of the party viewed in light of the particular contract. It is not surprising, given the respondent’s view of the contract, that none of those matters are addressed in the correspondence from his solicitors or in the evidence read on this application.
- [18]I am satisfied that the applicant has demonstrated a prima facie case with a probability of success.
Balance of convenience
- [19]The balance of convenience is in the applicant’s favour. Tasman Fighters has undertaken to perform its agreement in accordance with its terms during the pendency of any trial in this matter. This is not a case in which damages are either easily assessed or an adequate remedy. It is not possible to make an assessment of damages at the current time because much of any income which might be earned by Tasman Fighters is dependent upon the respondent’s boxing ability. It is dependent upon him remaining fit and uninjured. It is dependent upon matters within the world of boxing which cannot be adequately assessed at this point. Secondly, there is some force to the argument by the applicant that to remove a person who has some ability and recognition from their “stable” of boxers under management would damage their reputation in the eyes of those who engage in the promotion of boxing matches.
- [20]The usual undertaking as to damages has been given by the applicant, Mr Francis (its sole shareholder and director) and his domestic partner. That undertaking is valuable and is sufficient to satisfy any concerns that might arise between now and the determination of the trial in this matter.
- [21]The respondent contended that he would suffer because he has entered into an agreement with Matchroom Boxing for them to be his promoter on an exclusive basis. In circumstances such as this a similar argument was rejected in Bulldogs Rugby League Club Ltd v Williams[4] where the defendant had, in apparent breach of his contract with the Sydney club, agreed to play for a French club. He was not allowed to derogate from the contractual rights of the Australian club simply because he had decided to enter into another agreement.
- [22]While Mr Teremoana deposed to having entered into an agreement with Matchroom Boxing, he did not provide any information about the contents or requirements of that agreement, on the basis advanced by his Counsel that it was commercial in confidence.
- [23]The applicant should not have to suffer because the respondent decided to take the risk of entering into another arrangement. In Bulldogs Rugby League Club Ltd v Williams Austin J said:
“[65] There is authority for the proposition that the Court will place little or no weight on hardship suffered by defendants where they are the authors of their own misfortune: John Fairfax v Birt at [49] per Brereton J. In the present case the first defendant’s possible hardship would be that he would have to forego his playing opportunities in France and bring to an end whatever work arrangements he has entered into with the second defendant.”
Interlocutory injunction as a negative restraint
- [24]It is well accepted that equity will not provide specific performance of a contract for personal services. There is an exception though for contracts for “special services” where a court will grant a prohibited injunction against a breach of a promise not to engage the services of another person in the specific field.[5] The principle was described by Austin J in Bulldogs Rugby League Club v Williams in the following way:
“[51] Courts of equity adopt a distinctive approach to an application to enforce, by injunction or specific performance, a contract of personal service. The fundamental rule, enunciated in such cases as Warner Brothers Pictures Incorporated v Nelson [1937] 1 KB 209, is that a decree of specific performance, either in the primary or the secondary sense, is not available to enforce a contract of personal service. That principle is extended to a case where the applicant seeks an injunction rather than specific performance, if the injunction would have an effect tantamount to a decree of specific performance, or at least the effect of leaving the defendant with the odious choice of either continuing to work for the plaintiff or being idle.
[52] But there is an exception to that approach originating in the famous decision of Lumley v Wagner (1852) 1 De GM&G 604; 42 ER 687. In that case the defendant had agreed to sing at the plaintiff's theatre for a period of three months, and had promised not to perform during that period for any other theatre without the plaintiff's authorisation. The Court granted an injunction enforcing that negative stipulation. Lord St Leonards LC stated that, while he could not order the defendant specifically to perform her contractual obligations, he did have power to "compel her to abstain from the commission of an act which she has bound herself not to do and thus possibly cause her to fulfil her engagement." (At ER 693).
[53] The principle of Lumley v Wagner has been followed often in the English and Australian case law. For example, in Curro v Beyond Productions the Court of Appeal of New South Wales cited Lumley v Wagner as authority for the general rule that if the contract is a contract for the provision of special services, the promise not to work for a competitor will be enforced (at 347-8). Because the contract is limited to special services, a negative promise not to work for a competitor will not force the defendant to work for the plaintiff or remain idle. In the Australian Rugby Football League v Cross case, Hodgson J referred to that principle and took the view that for relevant purposes, rugby league footballers could be treated as equivalent to entertainers, in each case providing special services under their contracts. The principle in Lumley v Wagner was applied in the other cases on rugby league football players that I have cited. See also Buckenara v Hawthorn Football Club Ltd at 46, and Hawthorn Football Club Ltd v Harding [1988] VR 49 at 61.” (emphasis added)
- [25]Mr Teremoana relied upon the decision in D&L Events Pty Ltd v Opetaia[6] in which Burns J refused interlocutory relief to a boxer who had terminated his agreement with the applicant, a boxing promotion company. In that case, his Honour held (at [17]) that “the relief sought by the applicant was tantamount (if not actually) an order to enforce the performance of a contract of personal services until trial”. This case is different. Tasman Fighters does not seek, either now or at the trial of this action, an order that Mr Teremoana specifically perform his obligations under the Agreement.
- [26]Mr Teremoana is not compelled by the Agreement to fight anyone in a match arranged by Tasman Fighters. Clause 4 envisages that Mr Teremoana might not approve “reasonable opponents” arranged by Tasman Fighters and, so, decide not to engage in a match.
- [27]It was submitted by Mr Tolton that the respondent will be deprived of his ability to earn a living. That is not consistent with the evidence. Mr Teremoana was earning income as a plumber when he injured his back. There is nothing to suggest he could not obtain employment in that field. Whether he agrees to take part in any boxing matches which might be organised by Tasman Fighters is a matter for him.
Conclusion
- [28]At the hearing of the application and after I had made the orders sought by the applicant I directed that the parties confer with a view to arriving at an agreed set of directions designed to bring this matter to trial as soon as possible.