Commsupport Pty Ltd v Mirow

Case [2018] QDC 134


DISTRICT COURT OF QUEENSLAND

CITATION:

Commsupport Pty Ltd v Mirow [2018] QDC 134

PARTIES:

Commsupport Pty Ltd ACN107169648
(plaintiff)

v

Nathan Mark Mulligan
(first defendant)

Kurt Michael Mirow
(second defendant)

FILE NO/S:

TD33/2015

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Toowoomba

DELIVERED ON:

03 August 2018

DELIVERED AT:

Brisbane  

HEARING DATE:

28 February, 1, 2 March and 6, 7 April 2017

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.   The plaintiff’s claim is dismissed.

2.   The parties make written submissions on costs within 14 days

CATCHWORDS:

EMPLOYMENT – EMPLOYER AND EMPLOYEE – CONTRACT OF EMPLOYMENT – TRADE AND COMMERCE – OTHER REGULATION OF TRADE OR COMMERCE – RESTRAINTS OF TRADE – VALIDITY AND REASONABLENESS – proper construction of restrain covenants in employment contract – where 3 month restraints capture all clients in the 6 months immediately preceding termination – where on the evidence the defendant could not possibly have had interactions with all those clients the subject of the 6 month range so as to develop the requisite and protectable customer connection – where inequality of bargaining position between the parties at the time of contract – whether restraints reasonable by reference to its scope – whether restraints supported by consideration – whether former employee breached restraints

TRADE AND COMMERCE – OTHER REGULATION OF TRADE OR COMMERCE – RESTRAINTS OF TRADE – ROLE OF PUBLIC INTEREST OR POLICY – whether restraints exceeded a legitimate protectable interest of the employer so as to offended the public interest in competition

TRADE AND COMMERCE – OTHER REGULATION OF TRADE OR COMMERCE – RESTRAINTS OF TRADE – ENFORCEMENT OF AGREEMENT – REMEDIES FOR BREACH OF AGREEMENT – DAMAGES – assessment of damages – where probability of future events occurring considered – applicable assessment regime

CASES:

AGA Australia Pty Ltd v Tokody [2012] QSC 176

Amaco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288

Artcraft v Chandler [2003] QSC 102

Arthur Murray Dance Studios of Cleveland Inc v Witter 105 NE 2d 685 at 705 (Ohio) CP 1952

A Schroedar Music Publishing Co Ltd v Macaulay [1974] 3 All ER 616

Brinks v Cain [2007] NSWSC 62

Buckley v Tuffy (1972) 125 CLR 353

Burton & Eising v Wright Trading Pty Ltd [2007] QSC 17

Byrne v Australia Airlines Ltd (1995) 185 CLR 410

Cactus Imaging Pty Ltd v Peters [2006] NSWSC 717

Charltons CJC Pty Ltd v Fitzgerald (No 3) [2013] NSWSC 1945

Clarke v Newland [1991] 1 All ER 397

Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64

Electro Board Administration v O’Brien [1999] NSWCA 452

Electricity Generation Corporation v Woodside Energy Ltd & Ors [2014] 251 CLR 640

Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269

Dews v Fitch [1920] 2 CH 159

Geraghty v Minter (1979) 142 CLR  177

GW Plowman & Son Ltd v Ash [1964] 1 All ER 10

Hadley v Baxendale (1854) 9 Ex 431Harlow Property Consultants Pty Ltd v Byford [2005] NSWSC 658

Haynes…

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Details
AGLC
Commsupport Pty Ltd v Mirow [2018] QDC 134
Case
[2018] QDC 134
Decision Date

CaseChat Overview and Summary

Commsupport Pty Ltd brought a claim against Mirow for breaches of post-employment restraints contained in his employment contract. The parties had engaged in trade and commerce, and the employment contract included restraints on trade designed to protect the employer's business interests. The primary legal issue was whether the restraints were valid and reasonable in scope, particularly considering the evidence that Mirow could not have developed a protectible customer relationship with all clients within the restraint period. Another issue was whether the restraints exceeded a legitimate protectible interest of the employer and whether they offended the public interest in competition. The court also had to consider whether Mirow breached the restraints and the appropriate assessment of damages.

The court held that the restraints were not valid as they were overly broad, capturing all clients within six months before termination. It found that Mirow could not have had interactions with all these clients to develop a protectible customer relationship, making the restraints unreasonable. The inequality of bargaining power at the time of contract formation further undermined the restraints' validity. The court determined that the restraints exceeded a legitimate protectible interest and offended the public interest by excessively restricting Mirow's ability to compete in the industry. Consequently, the court dismissed the plaintiff's claim. The parties were directed to submit written submissions on costs within 14 days.

Orders

Orders of the court

1. The plaintiff’s claim is dismissed.

2. The parties make written submissions on costs within 14 days

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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