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
[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.
Continue reading Commsupport Pty Ltd v Mirow
Sign in free to access the full text
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