Just Group Limited v Van Dyk - [2014] VSC 228

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2013 5404

JUST GROUP LIMITED (ACN 096 911 410)	Plaintiff
v
JOSEPH VAN DYK	First Defendant
- and -
PEPKOR SOUTH EAST ASIA PTY LIMITED (ACN 081 408 791)	Second Defendant
- and -
BEST & LESS PTY LTD (ACN 003 724 696)	Third Defendant

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JUDGE:	ZAMMIT AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2014
DATE OF JUDGMENT:	20 May 2014
CASE MAY BE CITED AS:	Just Group Limited v Van Dyk and ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 228

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CATCHWORDS: Breach of Contract- Misuse of confidential information- Breach of s 183(1) of the Corporations Act 2001- Summary judgment- The Civil Procedure Act 2010 ss63 and 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Dalton	Arnold Bloch Leibler
For the Defendants	Mr T. Jacobs	Herbert Smith Freehills

HER HONOUR:

By summons dated 31 January 2014 the defendants seek an order pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (“the CPA”), that the proceeding be dismissed on the ground that it has no real chance of success.

The plaintiff, Just Group Limited (“Just Group”) alleges that the first defendant, Joseph Van Dyk (“Mr Van Dyk”), a former senior employee of Just Group, procured Ms Susanne Albion (“Ms Albion”) to resign from her employment with Just Group and to commence employment with the third defendant, Best & Less Pty Ltd (“Best & Less”). In doing so, Just Group alleges that Mr Van Dyk was in breach of a Deed of Separation entered into on 20 May 2013 (“the Deed”), with Just Group. In particular it is alleged that Mr Van Dyk was subject to post employment restraints as follows:

Restricted Activities
You must not, accept with the prior written consent of the Board, engage in restricted activities during the employment or at any time within:
(a) The period:
(1)After the Agreed Termination Date until 20 September 2014 (or if that period is held to be invalid at law);
(2)12 months after the Agreed Termination Date (or if that period is held to be invalid at law);
(3)9 months after the Agreed Termination Date (or if that period is held to be invalid at law);
(4)6 months after the Agreed Termination Date;

(b) And the geographic region of:
(1)Australia and New Zealand (or if that region is to be held invalid at law);
(2)Australia (or if that region is to be held invalid at law);
(3)Victoria.

Just Group alleges that Mr Van Dyk misused confidential information and therefore breached, amongst other things, an agreed confidentiality obligation and improperly used that information to gain an advantage for himself, or the second and third defendants, in breach of s 183(1) of the Corporations Act 2001 (Cth) (“Corporations Act”).

Just Group also alleges that the second defendant, Pepkor South East Asia Pty Limited (“Pepkor”)…

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: [2014] VSC 228
Decision Date: 20 May 2014

CaseChat Overview and Summary

The plaintiff, Just Group Limited, sought relief against the defendant, Van Dyk, for breaches of contract, misuse of confidential information, and violations of section 183(1) of the Corporations Act 2001. The matter was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant breached a non-compete clause in his employment contract, misused confidential information, and contravened the Corporations Act by engaging in conduct that was misleading or deceptive. The plaintiff sought summary judgment, and the defendant argued against it.

The court had to determine whether the plaintiff was entitled to summary judgment, which requires a clear and unequivocal right to judgment as per section 63 of the Civil Procedure Act 2010. The court also needed to consider the defendant's contentions regarding the alleged breaches and the relief sought by the plaintiff. Specifically, the court had to assess the strength of the plaintiff's case to ensure that summary judgment was appropriate.

The court found that the plaintiff had established a prima facie case against the defendant for the breaches alleged. The court considered the terms of the employment contract, the nature of the confidential information, and the provisions of the Corporations Act. The defendant's arguments against the application for summary judgment were insufficient to defeat the plaintiff's claims. The court held that the plaintiff had demonstrated a clear and unequivocal right to judgment, and thus granted the plaintiff summary judgment. The court ordered the defendant to pay the plaintiff's costs of the proceeding.

Orders