Allied Express Transport Pty Ltd v Braim - [2022] NSWSC 1298

Supreme Court

New South Wales

Medium Neutral Citation: Allied Express Transport Pty Ltd v Braim [2022] NSWSC 1298
Hearing dates: 12-14 September 2022
Date of orders: 27 September 2022
Decision date: 27 September 2022
Jurisdiction: Equity - Expedition List
Before: Williams J
Decision:
See paragraph [300]

Catchwords:
RESTRAINT OF TRADE – employee – employment contract governed by law of New South Wales – activities of first defendant during and after employment occurred in Victoria – plaintiff sought injunction in terms not limited to alleged offending conduct and not limited to conduct occurring in Victoria – application of Restraints of Trade Act 1976 (NSW) – no actual or apprehended breach of contractual restraint proved
CONTRACT – contractual obligation of confidence – failure to prove that information confidential to the employer was imparted to the employee during the course of employment – failure to prove actual or apprehended breach of contractual obligation of confidence
EQUITY – equitable obligation of confidence – necessary quality of confidence – insufficient identification of all information said to be confidential – failure to prove that information confidential to the employer was imparted to the employee during the course of employment – failure to prove actual or apprehended breach of equitable obligation of confidence

Legislation Cited:
Corporations Act 2001 (Cth), ss 181 to 183
Evidence Act 1995 (NSW), s 128
Interpretation Act 1987 (NSW), s 12(1)(b)
Restraint of Trade Act 1976 (NSW), s 4

Cases Cited:
Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326; [2007] NSWCA 172
Employsure Ltd v McMurchy; Employsure Ltd v Kumaran [2021] NSWSC 1179
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343; [2018] NSWCA 163
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
KA & C Smith Pty Ltd v Ward (1998) 45 NSWLR 702
Kay’s Leasing Corporations Pty Ltd v Fletcher (1964) 116 CLR 124
Label Manufacturers Australia Pty Ltd v Chatzopoulos [2022] NSWSC 1059
Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; [2010] FCAFC 21
Professional Advantage Pty Ltd v Smart [2008] NSWSC 873
Professional Advantage Pty Ltd v Smart [2008] NSWSC 873
Watson v Foxman (1995) 49 NSWLR 315
Wright v Gasweld (1991) 22 NSWLR 317

Texts Cited:
JD Heydon, MJ Leeming and PG Turner, Meagher Gummow & Lehane’s Equity Doctrines and Remedies (5th ed, 2015)
JD Heydon, The Restraint of Trade Doctrine (14th ed, 2018)

Category: Principal judgment
Parties: Allied Express Transport Pty Ltd (Plaintiff)
Aram Braim (First Defendant)
ASOS Express Pty Ltd (Second Defendant)
Representation:
Counsel:
R Kumar (Plaintiff)
P Reynolds (Defendants)
Solicitors:
Pendlebury Workplace Law (Plaintiff)
Asad Lawyers (Defendants)

File Number(s): 2022/47368
Publication restriction: N/A

Judgment

Introduction

These reasons concern an application by the plaintiff, Allied Express Transport…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1298
Decision Date: 27 September 2022

CaseChat Overview and Summary

Allied Express Transport Pty Ltd initiated proceedings against two former employees, Braim and another, seeking an injunction to restrain the defendants from engaging in activities that would breach contractual and equitable restraints of trade, as well as an obligation of confidence. The dispute involved the defendants' conduct in Victoria, despite the employment contract being governed by the law of New South Wales. The court had to determine whether the plaintiff had established a breach of the contractual and equitable obligations of restraint of trade and confidence.

The court examined whether the plaintiff had demonstrated that the defendants breached the contractual restraints of trade and the obligation of confidence. In terms of the contractual restraint, the court held that the plaintiff failed to prove an actual or apprehended breach. The court also considered whether the plaintiff had proved that the defendants breached the obligation of confidence, but found that the plaintiff could not demonstrate that confidential information was imparted to the employee during the course of employment, nor could the plaintiff show that the information was actually or apprehensively disclosed.

The court concluded that the plaintiff had not established any breach of the contractual or equitable obligations of restraint of trade or confidence. Therefore, the plaintiff's application for an injunction was dismissed. The court found that the plaintiff had not demonstrated any actual or apprehended breach of the contractual or equitable restraints, and that the plaintiff had not provided sufficient evidence to support the existence of confidential information imparted to the employee during the course of employment. As a result, the court dismissed the plaintiff's claims in their entirety.

Orders