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DC Payments Pty Ltd v Lester

DC Payments Pty Ltd v Lester

Case [2013] VSC 469 29 August 2013

Restraint of Trade

Interlocutory Orders

Contract Law

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IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMERCIAL AND EQUITY DIVISION

No. 4242 of 2013

DC PAYMENTS PTY LTD (ACN 009 582 781)	Plaintiff
v
TYSON JAY LESTER	Defendant

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 28 August 2013
DATE OF JUDGMENT:	29 August 2013
CASE MAY BE CITED AS:	DC Payments Pty Ltd v Lester
MEDIUM NEUTRAL CITATION:	[2013] VSC 469

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CONTRACT – restraint of trade – employer and employee – application for interlocutory injunction preventing employee from working for a competitor to the employer – whether balance of convenience favours granting injunction

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Forbes	Ashurst Australia
For the Defendant	Mr J C Simpson	Balfe & Webb

HIS HONOUR:

Relief sought

By Summons dated 16 August 2013 the Plaintiff, DC Payments Pty Ltd, seeks interlocutory injunctions restraining the Defendant, Tyson Jay Lester (whether by himself, employees, agents or howsoever otherwise) from:

(a)working as an employee, consultant, agent or in any other capacity for Next Payments Pty Ltd (ACN 160 985 106) (‘Next Payments’) or any related entity or being otherwise involved directly or indirectly, in the business of Next Payments;
(b)directly or indirectly canvassing or soliciting the business of any person who at any time during the 12 months prior to 19 July 2013 was a client, customer or identified prospective customer of the Plaintiff or its subsidiary DC Payments Australasia Pty Ltd;
(c)counselling, procuring or otherwise assisting any person to do any of the acts referred to in paragraphs (a) or (b) above;
(d)using, disclosing or making known to any other person, any Confidential Information, of the Plaintiff concerning the business, dealings, transactions and affairs of the Plaintiff and its related entities (including DC Payments Australasia Pty Ltd) including how they conduct business, their trade secrets, financial, marketing, personnel and technical information, information relating to pricing, customer lists and customer information, sales information and other information not known to the public at large to which the Defendant had access, or which he acquired, during the course of his employment with the Plaintiff.

The relief sought is urgent

The Plaintiff claims that there is an urgent need for the Court to deal with the above applications so as to do what can be done to obviate the immediate risks to the Plaintiff’s business. These risks were deposed to by Andrew Wingrove, Vice-President Sales and Customer Service of the Plaintiff, in his affidavit.[1] The Plaintiff submits this as evidence of the risk that the Defendant may act to the advantage of his now employer Next Payments and to the disadvantage and harm of his past employer the Plaintiff by conduct including the utilisation of highly confidential information in relation to DC Payment’s planned changes to its transaction surcharge, and associated planned client agreement renewal campaign. In addition, the Plaintiff may be harmed by the Defendant divulging the confidential information referred to by Mr Wingrove.[2] The Defendant obtained this highly confidential information while in…

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 DC Payments Pty Ltd v Lester

Details

AGLC: DC Payments Pty Ltd v Lester [2013] VSC 469
Case: [2013] VSC 469
Decision Date: 29 August 2013

CaseChat Overview and Summary

In DC Payments Pty Ltd v Lester, the employer, DC Payments, sought an interlocutory injunction against its former employee, Lester, to prevent him from working for a competitor, Cardel Pty Ltd. The dispute arose from Lester's employment contract which contained a restraint of trade clause. Lester had resigned from his position as managing director and began working for Cardel, a competitor in the EFTPOS business. DC Payments argued that Lester's employment with Cardel would breach the restraint of trade clause, which aimed to protect its business interests.

The court needed to determine whether the balance of convenience favoured the granting of an interlocutory injunction. This involved weighing the potential harm to DC Payments if the injunction was not granted against any potential harm to Lester if it was. The court also had to consider the likelihood of DC Payments succeeding in its claim at the final hearing and whether Lester would suffer significant detriment if the injunction was granted.

The court found that the balance of convenience favoured DC Payments. The restraint of trade clause was deemed reasonable in scope, territory, and duration, and Lester's employment with Cardel would likely cause significant harm to DC Payments. The court concluded that Lester's employment with Cardel would likely breach the restraint of trade clause. Consequently, the court granted the interlocutory injunction, preventing Lester from working for Cardel until the matter was finally determined.

The court ordered Lester to cease working for Cardel and to refrain from disclosing any confidential information of DC Payments to Cardel. The injunction was to remain in place until the final determination of the proceedings.

Orders