Bend-Tech Group (A Firm) v Beek

Link copied
Case Copied 56 min read

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BEND-TECH GROUP (A FIRM) -v- BEEK [2015] WASC 491

CORAM:   PRITCHARD J

HEARD:   8 DECEMBER 2015

DELIVERED          :   22 DECEMBER 2015

FILE NO/S:   CIV 2819 of 2015

BETWEEN:   BEND-TECH GROUP (A FIRM)

Plaintiff

AND

ANDREW DAVID BEEK
Defendant

Catchwords:

Injunction - Interlocutory injunction - Restraint of trade - No serious question to be tried - Balance of convenience does not favour injunction

Legislation:

Nil

Result:

Application for interlocutory injunction dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr C J Graham

Defendant:     Mr M D Cox

Solicitors:

Plaintiff:     Borrello Graham Lawyers

Defendant:     MDC Legal

Cases referred to in judgment:

Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd [1973] HCA 40; (1973) 133 CLR 288

Attwood v Lamont [1920] 3 KB 571

BDO Group Investments (NSW-Vic) Pty Ltd v Ngo [2010] VSC 206

Brightman vLamson Paragon Ltd [1914] HCA 90; (1914) 18 CLR 331

Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353

IF Asia Pacific Pty Ltd v Galbally [2003] VSC 192

Integrated Group Ltd v Dillon [2009] VSC 361

Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409; (2011) 285 ALR 677

Mason v Provident Clothing & Supply Co Ltd [1913] AC 724

Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2013] WASC 375

Nordenfelt v The Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535

Putsman v Taylor [1927] 1 KB 637

Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169

Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1

Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

Workplace Access and Safety Pty Ltd v Mackie [2014] WASC 62

  1. PRITCHARD J:  Bend-Tech Group is a partnership which operates a metal fabrication business for the resources and industrial sectors.  One aspect of its business involves the rolling, bending and curving of metal pipes and other metal components, and the provision of other bespoke pipe-bending services to meet the needs of its customers. 

  2. Mr Beek commenced working for Bend-Tech in 2005 when he was 21 years old.  He was employed by Bend-Tech until 1 April 2015, apart from a 12‑month period between August 2011 and July 2012, when Mr Beek went to work in his father's air conditioning business.  His employment with Bend-Tech ceased on 1 April 2015. 

  3. Bend-Tech says that Mr Beek was employed pursuant to a written contract of employment which contained a restraint clause.  The restraint clause is set out at [20] of these reasons.  In summary, the restraint clause has two components of present relevance:  a 'non-solicitation clause' in cl 18.1.5.2, which purports to prohibit Mr Beek from endeavouring to solicit or entice customers from Bend‑Tech, and a 'non-competition clause' in cl 18.1.6, which purports to prohibit Mr Beek from working (whether as a principal, or as an employee or agent of another entity) in any business of a similar kind…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Bend-Tech Group (A Firm) v Beek and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2015] WASC 491
Decision Date

CaseChat Overview and Summary

Bend-Tech Group (A Firm) v Beek was a case before the Supreme Court of Western Australia. The matter involved a dispute between Bend-Tech Group and their former employee, Mr Beek, regarding an application for an interlocutory injunction. Bend-Tech sought to restrain Mr Beek from working in certain roles within the industry due to concerns about the use of confidential information and trade secrets. The court had to determine whether there was a serious question to be tried and if the balance of convenience favoured granting the injunction.

The primary legal issue before the court was whether there was a serious question to be tried in relation to Mr Beek's use of confidential information and trade secrets, and whether the balance of convenience favoured granting an interlocutory injunction. The court examined the evidence provided by both parties and considered the likelihood of Mr Beek using confidential information or trade secrets in his new employment.

The court found that there was no serious question to be tried as Bend-Tech had not made out a case that Mr Beek had access to confidential information or trade secrets. The court noted that the evidence suggested that Mr Beek had learned general skills and knowledge in the industry during his employment with Bend-Tech, rather than specific confidential information. Additionally, the court found that the balance of convenience did not favour granting the injunction, as Mr Beek had already suffered significant financial loss and hardship due to the restrictions placed on his ability to work. The court emphasised the importance of balancing the rights of both parties and the need to avoid causing unnecessary hardship to the applicant.

The court refused to grant the interlocutory injunction and ordered Bend-Tech to pay Mr Beek's costs of the chambers summons dated 13 November 2015 forthwith, to be taxed if not agreed, without regard to the upper limits of Item 10 of the Legal Profession (Supreme Court) (Contentious Business) Determination 2014. Counsel were directed to confer in respect of the costs of the present application with a view to submitting a minute of consent orders. In the absence of consent, the court would hear from the parties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Factual background Bend-Tech read an affidavit of James Arthur Fawkes sworn 6 November 2015 and an affidavit of Alan Philip Bryant sworn 6 November 2015. Mr Beek relied on an affidavit he swore on 4 December 2015. It is apparent that a large number of factual matters are in dispute. In the narrative that follows, I have endeavoured to set out the essential background facts in terms as neutral as possible, acknowledging the factual disputes where they apparently exist. When Mr Beek commenced work for Bend-Tech he initially worked as a pipe bending operator. He did so until August 2011. That role involved setting up machines and carrying out the bending work orders that Bend-Tech received. Mr Fawkes deposed that while he worked at Bend‑Tech, Mr Beek was trained in every aspect of metal bending and rolling to carry out Bend-Tech's bending work, and 'would have' learned some novel methods and designs which were generated to work on particular projects. When he returned to Bend-Tech in July 2012, Mr Beek worked as a Bending Supervisor, managing one or two employees engaged in what is known as mandrel bending work. Mr Fawkes deposed that in this role, Mr Beek learned 'the tooling set ups that we use, and the way that we bend certain metal for certain clients'.[1] Similarly, Mr Bryant deposed that Mr Beek knew nothing about bending and fabricating metal when he started working at Bend-Tech and that Mr Bryant believed that Mr Beek 'learnt everything he knows about bending and fabricating metal from working at Bend‑Tech'.[2][1] Affidavit of James Arthur Fawkes [42].[2] Affidavit of Alan Philip Bryant [15] - [16]. Mr Bryant also deposed that while Mr Beek worked in the role of a Bending Supervisor, Mr Bryant introduced him to Bend-Tech's suppliers in Malaysia and Taiwan. Mr Bryant deposed that the machinery used for mandrel bending and for curving pipes was not made in Australia. Mr Bryant deposed that over the years he has learnt which overseas suppliers 'produce the most reliable machines at the best prices'.[3][3] Affidavit of Alan Philip Bryant [26]. Between June 2013 and October 2014, Mr Beek worked in the role of Production Manager to replace Mr Bryant while Mr Bryant was on leave. When Mr Bryant returned from leave, Mr Beek resumed his role as a Bending Supervisor. There is also a dispute about Mr Beek's role in the Production Manager's position. Mr Fawkes claimed the role involved a high level of responsibility which involved more management and less hands-on work than that of a Bending Supervisor. Mr Bryant deposed that in the role of Production Manager his job involved overseeing Bend-Tech's workshop and all of the projects which were going on. Mr Fawkes deposed that in the role of Production Manager, Mr Beek was responsible for managing the firm's projects and was in contact with Bend‑Tech's customers on a day to day basis, and saw what was purchased from suppliers. Mr Fawkes also claimed that in this role, Mr Beek had access to Bend-Tech's 'Customer Relationship Management System' which recorded the details of all of Bend-Tech's customers, including their customer order histories and invoices. Mr Fawkes also deposed that as the Production Manager Mr Beek was entitled to access information about any projects being undertaken by Bend-Tech, including the costing of jobs.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

His Honour expressed the same view in Buitendag v Ravensthorpe Nickel Operations Pty Ltd.[53][53] Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425 (S) [5]. There will be an order that Bend‑Tech pay Mr Beek's costs of Bend‑Tech's chambers summons dated 13 November 2015 forthwith, to be taxed if not agreed, without regard to the upper limits of Item 10 of the Legal Profession (Supreme Court) (Contentious Business) Determination 2014. Counsel should confer in respect of the costs of the present application with a view to submitting a minute of consent orders. In the absence of consent, I will hear from the parties.