Entello Pty Ltd v Firooztash - [2016] QDC 50

DISTRICT COURT OF QUEENSLAND

CITATION:

Entello Pty Ltd v Firooztash [2016] QDC 50

PARTIES:

ENTELLO PTY LTD
ACN 088113599
(applicant)

v

PEDRAM FIROOZTASH
(respondent)

FILE NO/S:

736/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

11 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2016

JUDGE:

Farr SC, DCJ

ORDER:

Upon provision of an undertaking as to damages by the applicant, the respondent be restrained for six (6) months from the date of this order or until the trial of the proceeding, whichever occurs earlier, from:1.

using any information, whether in writing or otherwise, relating to clients of the applicant, and any documents or materials concerning clients of the applicant, that came into the respondent’s possession or control during his employment with the applicant, apart from information relating to those former clients of the applicant described in Annexure A to this decision;(a)

contracting, offering professional services, marketing to or undertaking professional services for any of the applicant’s clients that the respondent had dealings with during his employment with the applicant, apart from those former clients of the applicant described in Annexure A to this decision; and(b)

soliciting any of the applicant’s clients that he had dealings with during his employment with the applicant, apart from those former clients of the applicant described in Annexure A to this decision.(c)

     For clarity, it is declared that the respondent’s mere attendance at workshops or seminars co-ordinated by Financial Grace Pty Ltd does not comprise a breach of orders 1(b) or 1(c) above.

Pursuant to r 14(2)(a) of the Uniform Civil Procedure Rules 1999, the proceedings continue as if commenced by a claim.2.

The applicant shall file and serve a Statement of Claim in the proceeding by 4.00pm on 1 April 2016.3.

The respondent shall file and serve a defence by 4.00pm on 29 April 2016. 4.

Costs reserved.5.

CATCHWORDS:

CONTRACTS – EMPLOYMENT - RESTRAINT OF TRADE – where contract of employment contained restraints of trade – where restraints of trade were to operate post-employment – where employee resigned and attained employment with competitor – where applicant seeks to enforce restraint of trade covenants.

INTERLOCUTORY INJUNCTIONS – where the applicant must demonstrate a serious question to be tried – where the applicant must demonstrate that it is likely to suffer injury for which damages would be an inadequate remedy – whether the balance of convenience favours the granting of an injunction.

PROCEDURE - ORIGINATING PROCESS – where the applicant started proceeding by originating application –where the applicant sought an order under r 14 of the Uniform Civil Procedure Rules 1999 (Qld) that the proceeding continue as if started by claim.

Uniform Civil Procedure Rules 1999 (Qld), s 14

Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Company Pty Ltd (1973) 133 CLR 288.

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561
Archer v Richard Crookes Constructions Pty Ltd (1997)…

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.

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Details

Case: [2016] QDC 50
Decision Date: 11 March 2016

CaseChat Overview and Summary

Entello Pty Ltd initiated legal proceedings against Mr Firooztash following his resignation and subsequent employment with a competitor. Entello sought to enforce post-employment restraint of trade clauses contained in Mr Firooztash's contract of employment. The Queensland Supreme Court was asked to grant an interlocutory injunction to restrain Mr Firooztash from using information relating to Entello's clients and from soliciting or offering services to Entello's clients for a period of six months, or until the trial of the proceeding, whichever was earlier. Entello also sought an order for the proceedings to continue as if started by a claim, and for time extensions to file and serve a Statement of Claim and Defence.

The court considered whether Entello had demonstrated a serious question to be tried and whether it was likely to suffer injury for which damages would be inadequate. The court also considered whether the balance of convenience favoured the grant of an interlocutory injunction. The court noted that Mr Firooztash had been involved in many of Entello's major projects and had access to sensitive information. The court found that Entello had demonstrated a serious question to be tried and that it was likely to suffer injury for which damages would be inadequate. The court also found that the balance of convenience favoured the grant of an interlocutory injunction.

Accordingly, the court granted an interlocutory injunction restraining Mr Firooztash from using information relating to Entello's clients and from soliciting or offering services to Entello's clients for a period of six months, or until the trial of the proceeding, whichever was earlier. The court also ordered that the proceedings continue as if started by a claim, and set down time extensions for the filing and service of a Statement of Claim and Defence. Costs were reserved.

Orders

Orders of the court

Upon provision of an undertaking as to damages by the applicant, the respondent be restrained for six (6) months from the date of this order or until the trial of the proceeding, whichever occurs earlier, from:1.

using any information, whether in writing or otherwise, relating to clients of the applicant, and any documents or materials concerning clients of the applicant, that came into the respondent’s possession or control during his employment with the applicant, apart from information relating to those former clients of the applicant described in Annexure A to this decision;(a)

contracting, offering professional services, marketing to or undertaking professional services for any of the applicant’s clients that the respondent had dealings with during his employment with the applicant, apart from those former clients of the applicant described in Annexure A to this decision; and(b)

soliciting any of the applicant’s clients that he had dealings with during his employment with the applicant, apart from those former clients of the applicant described in Annexure A to this decision.(c)

For clarity, it is declared that the respondent’s mere attendance at workshops or seminars co-ordinated by Financial Grace Pty Ltd does not comprise a breach of orders 1(b) or 1(c) above.

Pursuant to r 14(2)(a) of the Uniform Civil Procedure Rules 1999, the proceedings continue as if commenced by a claim.2.

The applicant shall file and serve a Statement of Claim in the proceeding by 4.00pm on 1 April 2016.3.

The respondent shall file and serve a defence by 4.00pm on 29 April 2016. 4.

Costs reserved.5.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	Entello Pty Ltd v Firooztash [2016] QDC 50
PARTIES:	ENTELLO PTY LTD ACN 088113599 (applicant) v PEDRAM FIROOZTASH (respondent)
FILE NO/S:	736/16
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	11 March 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2016
JUDGE:	Farr SC, DCJ
ORDER:	Upon provision of an undertaking as to damages by the applicant, the respondent be restrained for six (6) months from the date of this order or until the trial of the proceeding, whichever occurs earlier, from:1. using any information, whether in writing or otherwise, relating to clients of the applicant, and any documents or materials concerning clients of the applicant, that came into the respondent’s possession or control during his employment with the applicant, apart from information relating to those former clients of the applicant described in Annexure A to this decision;(a) contracting, offering professional services, marketing to or undertaking professional services for any of the applicant’s clients that the respondent had dealings with during his employment with the applicant, apart from those former clients of the applicant described in Annexure A to this decision; and(b) soliciting any of the applicant’s clients that he had dealings with during his employment with the applicant, apart from those former clients of the applicant described in Annexure A to this decision.(c) For clarity, it is declared that the respondent’s mere attendance at workshops or seminars co-ordinated by Financial Grace Pty Ltd does not comprise a breach of orders 1(b) or 1(c) above. *Pursuant to r 14(2)(a) of the Uniform Civil Procedure Rules 1999, the proceedings continue as if commenced by a claim.2. The applicant shall file and serve a Statement of Claim in the proceeding by 4.00pm on 1 April 2016.3. The respondent shall file and serve a defence by 4.00pm on 29 April 2016.* 4. Costs reserved.5.
CATCHWORDS:	CONTRACTS – EMPLOYMENT - RESTRAINT OF TRADE – where contract of employment contained restraints of trade – where restraints of trade were to operate post-employment – where employee resigned and attained employment with competitor – where applicant seeks to enforce restraint of trade covenants. INTERLOCUTORY INJUNCTIONS – where the applicant must demonstrate a serious question to be tried – where the applicant must demonstrate that it is likely to suffer injury for which damages would be an inadequate remedy – whether the balance of convenience favours the granting of an injunction. PROCEDURE - ORIGINATING PROCESS – where the applicant started proceeding by originating application –where the applicant sought an order under r 14 of the Uniform Civil Procedure Rules 1999 (Qld) that the proceeding continue as if started by claim. Uniform Civil Procedure Rules 1999 (Qld), s 14 Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Company Pty Ltd (1973) 133 CLR 288. Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 Archer v Richard Crookes Constructions Pty Ltd (1997)…