Cushman and Wakefield v Patterson - [2021] NSWSC 672

Supreme Court

New South Wales

Medium Neutral Citation: Cushman & Wakefield v Patterson [2021] NSWSC 672
Hearing dates: 3 June 2021
Date of orders: 3 June 2021
Decision date: 03 June 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
Orders as per [36]

Catchwords:
EMPLOYMENT AND INDUSTRIAL LAW — Contract — Restraint of trade — Application for interlocutory injunction — whether plaintiff has a sufficiently serious arguable case for a final injunction having regard to the balance of convenience

Cases Cited:
Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLR 9; [2006] NSWSC 717
Dundoen Pty Ltd v Richard Wills (Real Estate) Pty Ltd [2020] NSWSC 1534
Ecolab Pty Ltd v Garland [2011] NSWSC 1095
John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995
Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449
Pearson v HRX Holdings Pty Ltd (2012) 205 FCR 187; [2012] FCAFC 111

Category: Procedural rulings
Parties: Cushman & Wakefield Agency (Vic) Pty Ltd (Plaintiff)
James Patterson (Defendant)
Representation:
Counsel:
M Seck (Plaintiff)
M Gillis (Defendant)
Solicitors:
Jones & Day (Plaintiff)
Hall and Wilcox (Defendant)

File Number(s): 2021/00158462
Publication restriction: Nil

EX TEMPORE Judgment

HER HONOUR: This is an application in the duty list brought by Cushman & Wakefield Agency (Vic) Pty Ltd (Cushman & Wakefield) by summons filed on 2 June 2021. The time for service of the summons was abridged and the matter was brought back on an urgent basis. What is sought this afternoon is effectively interlocutory relief to restrain the defendant, James Patterson, from conduct falling within what I might refer to as a non-compete clause in the defendant's employment contract with Cushman & Wakefield.
By way of background and by reference to the matters to which Mr Matthew Bouw, the Chief Executive Officer for the Asia Pacific region for the Cushman & Wakefield group of companies has deposed, the plaintiff is a global commercial real estate services firm with its headquarters in Chicago, Illinois (Matthew Bouw’s affidavit affirmed 2 June 2021 at [7]). Its principal activity is to operate as a multi-service commercial real estate agency providing services to the commercial property market in various areas (at [8]). Mr Patterson was, prior to his redundancy in February this year, employed by the plaintiff as the Chief Executive, Australia and New Zealand (ANZ) Transactions. He had formerly been employed by the plaintiff as the Chief Executive Officer, Australia and New Zealand. His executive service agreement is dated 20 March 2020 (at [14]). It contains within it what I might describe as relatively uncontroversial post-employment restraint clauses and clauses in relation to restraint on use of confidential information, as below (see Ex A at 25-28):

10    CONFIDENTIAL INFORMATION
10.1    The Executive must keep confidential all Confidential Information other than Confidential information:
a.   the Executive is required to disclose in the proper performance of the Employment Duties;
b.   which was public knowledge as at the date of this Agreement or became so at a later date (other than…

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.

Continue reading Cushman and Wakefield v Patterson

Details

AGLC: Cushman and Wakefield v Patterson [2021] NSWSC 672
Case: [2021] NSWSC 672
Decision Date: 03 June 2021

CaseChat Overview and Summary

Cushman and Wakefield brought an application in the Supreme Court of Queensland against Patterson, seeking an interlocutory injunction to prevent Patterson from breaching a restraint of trade clause in his employment contract. The dispute centred on the enforceability of a non-compete clause that was included in Patterson's employment agreement with Cushman and Wakefield. The court was tasked with determining whether Cushman and Wakefield had established a sufficiently serious arguable case for a final injunction and whether the balance of convenience favoured granting the interlocutory injunction.

The primary legal issue was whether the restraint of trade clause was reasonable and enforceable, taking into account the principles established by the High Court in Mobil Oil Australia Pty Ltd v Wellcome International Pty Ltd. The court had to consider the nature of the restraint, the legitimate interests of the employer, the impact on the employee, and the public interest. The court also assessed whether Cushman and Wakefield had demonstrated a serious question to be tried regarding the enforceability of the clause and whether the balance of convenience favoured granting the interlocutory injunction.

The court found that Cushman and Wakefield had made out a serious arguable case that the restraint of trade clause was enforceable, given the nature of Patterson's role and the legitimate business interests of the employer in protecting confidential information and client relationships. The court concluded that the balance of convenience favoured granting the interlocutory injunction, as the potential harm to Cushman and Wakefield from Patterson breaching the restraint outweighed any inconvenience to Patterson. The court therefore granted the interlocutory injunction, restraining Patterson from breaching the restraint of trade clause during the pendency of the proceedings.

Orders