HARTLEYS LTD -v- YUKICH & ORS [2002] WASC 184

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 184
Case No:	CIV:1976/2002	Heard:	12 & 15 JULY 2002
Coram:	McKECHNIE J	Delivered:	15/07/02
No of pages:	12	Judgment Part:	1 of 1
Result:	Partial injunction granted
Category:	B
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Parties:	HARTLEYS LTD (ACN 009 136 029) GRAEME YUKICH ENTRUST PRIVATE WEALTH MANAGEMENT PTY LTD (ACN 100 088 168) CHERYL BAKER-ARGYLE JEREMY DURSTON
Catchwords:	Interlocutory injunction Contracts of employment Implied terms for reasonable notice Fidelity Serious question to be tried Whether defendants using breaches of employment contract to springboard into competition with employer
Legislation:	Nil
Case References:	Thomas Marshall (Exports) Ltd v Guinle [1979] 1 Ch 227 American Cyanamid Co v Ethicon Ltd [1975] AC 396 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Rankin v Marine Power International Pty Ltd [2001] VSC 150 Rocket Records Pty Ltd v While [2001] VSC 368

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : HARTLEYS LTD -v- YUKICH & ORS [2002] WASC 184 CORAM : McKECHNIE J HEARD : 12 & 15 JULY 2002 DELIVERED : 15 JULY 2002 FILE NO/S : CIV 1976 of 2002 BETWEEN : HARTLEYS LTD (ACN 009 136 029)

Plaintiff

AND

GRAEME YUKICH

First Defendant

ENTRUST PRIVATE WEALTH MANAGEMENT PTY LTD (ACN 100 088 168)

Second Defendant

CHERYL BAKER-ARGYLE

Third Defendant

JEREMY DURSTON

Fourth Defendant

Catchwords:

Interlocutory injunction - Contracts of employment - Implied terms for reasonable notice - Fidelity - Serious question to be tried - Whether defendants using breaches of employment contract to springboard into competition with employer

(Page 2)

Legislation:

Nil

Result:

Partial injunction granted

Category: B

Representation:

Counsel:

Plaintiff : Mr R L Le Miere QC & Mr M G Pendlebury

First Defendant : Mr J Gilmour QC & Mr S M Davies

Second Defendant : Mr J Gilmour QC & Mr S M Davies

Third Defendant : Mr J Gilmour QC & Mr S M Davies

Fourth Defendant : Mr S J Lemonis

Solicitors:

Plaintiff : Clayton Utz

First Defendant : Steinepreis Paganin

Second Defendant : Steinepreis Paganin

Third Defendant : Steinepreis Paganin

Fourth Defendant : Bennett & Co

Case(s) referred to in judgment(s):

Thomas Marshall (Exports) Ltd v Guinle [1979] 1 Ch 227

Case(s) also cited:

American Cyanamid Co v Ethicon Ltd [1975] AC 396
Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66
Rankin v Marine Power International Pty Ltd [2001] VSC 150
Rocket Records Pty Ltd v While [2001] VSC 368

(Page 3)

McKECHNIE J

Background to application

1 This matter came on for urgent hearing of an application by the plaintiff for injunctive relief against the four defendants. I heard the matter on Friday evening 12 July 2002 from 4.30 pm to about 9.30 pm, following which I dismissed the application as against the fourth defendant and ordered that the plaintiff pay his costs in any event.

2 Although there is some evidence that the fourth defendant accessed confidential information, there is no sufficient evidence…

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: [2002] WASC 184
Decision Date

CaseChat Overview and Summary

Hartleys Ltd, a stockbroker and financial advisory services provider, filed an urgent application against Graeme Yukich, Cheryl Baker-Argyle, Entrust Private Wealth Management Pty Ltd, and Jeremy Durston. The application sought injunctive relief on the basis of alleged breaches of employment contracts, including fiduciary duties, failure to provide reasonable notice, and the use of confidential information. Yukich, a long-term employee and senior investment adviser at Hartleys, formed Entrust Private Wealth Management Pty Ltd and was accused of planning to start his own business using Hartleys' clients and employees. The case was heard by Justice McKechnie on 12 and 15 July 2002.

The court had to decide whether Hartleys had established a serious question to be tried regarding the alleged breaches of employment contracts, and whether the balance of convenience favoured the grant of an injunction. The court found that there was a serious question to be tried regarding the defendants' breach of their employment contracts by enticing employees and using confidential information. The court considered the implications of allowing the defendants to springboard into competition with Hartleys using the employer's business as a springboard. The court concluded that the balance of convenience favoured the grant of some form of relief to prevent the defendants from profiting from their alleged breaches.

The court granted a partial injunction, restraining the defendants from employing three employees (Ms Vadala, Ms Joel, and Mr Cheah) until 1 August 2002, from approaching or dealing with Hartleys' clients, from using confidential information, and requiring them to make discovery on affidavit as to any confidential information in their possession. The injunction was not to be wider than necessary for the interests of justice, and the defendants were protected by an undertaking as to damages. The parties were given liberty to apply to vary or cancel the injunction.

Final orders: The defendants are restrained from employing Ms Vadala, Ms Joel, and Mr Cheah until 1 August 2002, from approaching or dealing with the plaintiff's clients until further order, from using confidential information, and are required to make discovery on affidavit as to confidential information which is or has been in their possession. The parties can apply on 24 hours' notice to vary or cancel the injunction.

Orders