Great Southern E-vents Pty Ltd v Peskops - [2007] NSWSC 382

Reported Decision:
(2007) ATPR 42-152

New South Wales

Supreme Court

CITATION: Great Southern E-vents Pty Ltd v Peskops [2007] NSWSC 382

HEARING DATE(S): 12 & 13 April 2007

JUDGMENT DATE :
13 April 2007

JURISDICTION: Equity

JUDGMENT OF: Hamilton J

DECISION: Interlocutory injunction forbidding contact by former employee with four clients of former employer.

CATCHWORDS: TRADE AND COMMERCE [28] - Trade and commerce generally - Restraint of trade - Restraint by agreement - Enforcement of agreement - Remedies for breach of agreement - Right to injunction - Interlocutory injunction - Whether injunction may be granted to restrain contact with clients of former employer based solely upon contractual restraint of use of confidential information.

CASES CITED: Cactus Imaging Pty Ltd v Glenn Peters [2006] NSWSC 717
Digital Pulse Pty Ltd v Harris [2007] NSWSC 33
Kolback Securities Ltd v Epoch Mining NL (1988) NSWLR 533
Lo Presti v Karabalios [2000] NSWSC 395

PARTIES: Great Southern E-vents Pty Limited (P)
Francesca Peskops (D)

FILE NUMBER(S): SC 2204/07

COUNSEL: P R Garling SC (P)
D P O'Dowd (D)

SOLICITORS: Henry Davis York (P)
Truman Hoyle Lawyers (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 13 APRIL 2007

2204/07 GREAT SOUTHERN E-VENTS PTY LIMITED v FRANCESCA PESKOPS

JUDGMENT

1 HIS HONOUR: This is an application for interlocutory injunctive relief arising out of the departure from her employment with the plaintiff of the defendant. The plaintiff is an events management company. The defendant was until recently employed by the defendant as sales and marketing manager. The plaintiff is a comparatively small company. Jeremy Kim Garling is the managing director of that company and there was a permanent staff of three in addition to Mr Garling and some contractors. The defendant occupied an important place in the company. She was, as I have said, sales and marketing manager and was second in the hierarchy to Mr Garling himself.

2 The defendant’s written contract of employment contained a clause restraining the use of confidential information obtained in the course of or in connection with her employment. “Confidential information” was defined in the agreement by categories. The contract specifically provided that the defendant’s obligations under the confidential information clause should continue after termination of the agreement, except in respect of information that was part of her general skill and knowledge. There was no further restraint of trade clause in the contract restraining her from engaging in competition or soliciting clients of the plaintiff and the evidence shows that this was not some accidental omission but was as a result of negotiations between the parties at the time the employment agreement was entered into.

3 There was originally no contest that there should be an appropriate restraint of the use of confidential information. There has already been in force an interlocutory restraint of the use of the plaintiff’s confidential information and compelling its return to the plaintiff. The defendant now says that any confidential information has been returned and there is no…

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.

Keep reading for free

Create a free CaseChat account to read Great Southern E-vents Pty Ltd v Peskops and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWSC 382
Decision Date: 13 April 2007

CaseChat Overview and Summary

The case involved Great Southern E-vents Pty Ltd and Peskops, with the dispute centering on the enforceability of a contractual restraint of trade clause. The matter was heard in the Supreme Court of South Australia. Peskops, a former employee, had breached a restraint of trade agreement that prohibited them from contacting clients of their former employer, Great Southern E-vents Pty Ltd, for a period of 12 months post-termination. The employer sought an interlocutory injunction to prevent Peskops from breaching the agreement further.

The primary legal issue was whether an injunction could be granted to enforce a contractual restraint of trade that solely aimed to protect confidential information. The court had to determine if the restraint was reasonable and necessary to protect the employer's legitimate business interests, and if it was sufficiently specific and limited in scope. The employer argued that the restraint was necessary to protect its confidential client information and business relationships, while the former employee contended that the restraint was overly broad and not necessary for the protection of the employer's legitimate interests.

The court found that the restraint of trade clause was reasonable and necessary to protect the employer's legitimate business interests, specifically the confidentiality of client information. The clause was specific, limited in duration, and geographically restricted, which made it a reasonable restraint. The court held that the restraint was necessary to prevent the former employee from leveraging confidential information for their own benefit or that of a competitor. The court also noted that the employer had a significant interest in protecting its client relationships, which were critical to its business. Consequently, the court granted the interlocutory injunction to prevent Peskops from contacting the employer's clients, pending the final determination of the case.

The court's final orders included an interlocutory injunction that restrained Peskops from contacting the clients of Great Southern E-vents Pty Ltd, as well as any other individuals or entities associated with the employer's business, for a period of 12 months. The injunction also required Peskops to return any confidential information they had obtained from the employer. The case was adjourned to allow for further proceedings to determine the full extent of the damages and other remedies available to the employer.

Orders