AECI Australia Pty Ltd v Convey

SUPREME COURT OF QUEENSLAND

CITATION:

AECI Australia Pty Ltd v Convey [2020] QSC 207

PARTIES:

AECI AUSTRALIA PTY LTD

(applicant)

v

NIGEL CONVEY

(first respondent)

INCITEC PIVOT LTD

(second respondent)

FILE NO/S:

BS 6089 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

10 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 July 2020

JUDGE:

Bond J

ORDER:

The orders of the Court are:

1.   The application is dismissed.

2.   The parties are directed to file and serve written submissions on the question of the costs order which should be made within 14 days, and that question will be determined on the papers.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – GENERALLY – where the applicant alleges that non-compete and non-solicitation clauses are binding on and enforceable against a former senior executive employee – where the applicant seeks interlocutory relief to prevent the employee from taking up employment with the second respondent – whether the applicant has shown a prima facie case that the restraints are reasonable and therefore valid and enforceable, and that the employee threatens to breach the restraints – whether the balance of convenience favours the grant of injunctive relief

Amalgamated Pest Control Pty Ltd v SM & SE Gillece Pty Ltd [2016] QCA 260, cited
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46, considered
Daebo Shipping Co Ltd v The Ship Go Star (2012) 207 FCR 220; [2012] FCAFC 156, considered
Just Group Ltd v Peck (2016) 344 ALR 162; [2016] VSCA 334, applied
Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449, considered

OBG Ltd v Allan [2008] 1 AC 1; [2007] UKHL 21, cited

COUNSEL:

I M Neil SC for the applicant
A Glynn QC for the first respondent

H Blattman for the second respondent

SOLICITORS:

J H Law for the applicant
Mills Oakley for the first respondent

Herbert Smith Freehills for the second respondent

Introduction

1. The applicant (AECI) had employed the first respondent (the Employee) in senior managerial positions since 2014.   

2. On 13 March 2020, the Employee resigned to take up employment with the second respondent (IPL).  He communicated the resignation orally and by email, the latter communication advising that he would be happy to work with AECI as to a final termination date.

3. The Employee’s employment agreement with AECI required that he give three months’ notice of termination.  On 18 March 2020, AECI by its solicitors advised the Employee that it insisted on that period of notice and that he was to remain an employee until 12 June 2020.  However, amongst other things, he was required not to attend work during that period, not to represent AECI in any way, and not to contact any actual or prospective customers.  In effect, he was placed on “gardening leave”. 

4. The Employee’s new employment with IPL is to commence on 13 July 2020.

5. AECI contends that the new employment will…