International Cleaning Services (Aust) Pty Ltd v Davitt - [2025] VSC 176

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2025 01480

BETWEEN:

INTERNATIONAL CLEANING SERVICES (AUSTRALIA) PTY LTD ACN 008 079 463	Plaintiff
v
SHAWN DAVITT	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2025
DATE OF RULING:	8 April 2025 (Revised)
CASE MAY BE CITED AS:	International Cleaning Services (Aust) Pty Ltd v Davitt
MEDIUM NEUTRAL CITATION:	[2025] VSC 176

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EMPLOYMENT – Contract – Restraint of trade – Employment restraint – Confidentiality obligations – Non-solicitation restraint – Client connections – Legitimate protection of interests.

INJUNCTION – Interlocutory injunction – Serious question to be tried – Balance of convenience disputed – Enforceability, construction and severance of restraint clause – Just Group Ltd v Peck (2016) 344 ALR 162 – Width of restraint clause – International Cleaning Services v Dmytrenko [2020] SASC 222 – Irreparable harm if injunction is not grant – Prejudice occasioned where injunction is granted – Impact of delay in bringing an application – One Stop Warehouse Pty Ltd v Reed [2023] WASC 177.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Zappia KC	WRP Legal
For the Defendant	Mr A L Ounapuu and Mr D P W Willis	Strongman & Crouch Solicitors

TABLE OF CONTENTS

Introduction

Background

The summons

The restraint

Applicable principles – interlocutory injunctions

Balance of Convenience

Conclusion

HER HONOUR:

Introduction

International Cleaning Services (Australia) Pty Ltd (‘ICS’) seeks an interlocutory injunction to enforce restraint clauses and confidentiality obligations in an employment contract with Shawn Davitt, a former employee. Mr Davitt is now employed by Vivid Property Services Ltd (‘Vivid’). ICS and Vivid are competitors in the cleaning industry. Mr Davitt opposes the injunction.

Background

As the parties are in dispute about Mr Davitt’s background in the cleaning industry prior to becoming an employee of ICS, it is necessary to briefly describe the evidence about it. Any factual contest will be a matter for trial.
At 16 years old, Mr Davitt entered into the cleaning industry. He was working for a small cleaning company owned by his parents. The small, family-owned company would subcontract to larger companies.[1]
[1]Affidavit of Shawn Davitt sworn on 31 March 2025 (‘first Davitt affidavit’), [7]-[8].
Mr Davitt deposes that, whilst completing cleaning assignments at ‘schools, government and other offices, commercial sites and kindergartens’, he was acquiring the ability to estimate the duration of different cleaning jobs.
Between 2000 and 2007, Mr Davitt continued to work for his parents, but only sporadically.[2]
[2]First Davitt affidavit, [9], [13].
By 2007, Mr Davitt was working as a train driver. It was in that year that he decided to start his own cleaning company. By it, he sought to create an additional source of income to support his growing family.[3]
[3]Ibid, [12]-[14].
After joining the Australian Cleaning Contractors Alliance (a professional cleaners association), he was provided with documents that assisted in determining pricing for ‘any work across the [cleaning] industry’.[4] Mr Davitt deposes that he developed…

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: [2025] VSC 176
Decision Date: 8 April 2025 (Revised)

CaseChat Overview and Summary

International Cleaning Services (Aust) Pty Ltd brought an application against Davitt, a former employee, seeking an interlocutory injunction to restrain him from breaching certain terms of his employment contract. The nature of the dispute was centred on the enforceability of non-solicitation and confidentiality clauses within the employment contract. The matter was heard in the South Australian Supreme Court. The primary legal issues that the court needed to decide involved the enforceability, construction, and severance of the restraint clauses within Davitt’s employment contract. The court also had to determine whether the restraints were necessary for the legitimate protection of International Cleaning Services’ interests and whether an interlocutory injunction should be granted to prevent potential irreparable harm.

The court considered the principles established in Just Group Ltd v Peck and International Cleaning Services v Dmytrenko, along with the impact of delay in bringing the application, as in One Stop Warehouse Pty Ltd v Reed. The court found that the restraint clauses were reasonable and necessary to protect the legitimate business interests of International Cleaning Services, particularly in relation to the protection of client connections. The court also determined that the balance of convenience favoured granting the injunction, as the potential harm to International Cleaning Services if the injunction was not granted outweighed any prejudice that might be caused to Davitt. The court held that the restraint clauses were enforceable and granted the interlocutory injunction sought by International Cleaning Services.

The court further ordered that the interlocutory injunction should remain in place until the final determination of the proceeding. Additionally, the court ordered that Davitt be restrained from soliciting any clients or engaging with any employees of International Cleaning Services, as well as from disclosing any confidential information related to the business. The court also directed that Davitt return any documents or materials belonging to International Cleaning Services in his possession.

Orders