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Lamberts Brs v Kentish

Lamberts Brs v Kentish

Case [2005] SADC 99 4 August 2005

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
LAMBERTS BRS v KENTISH
Reasons for Decision of Her Honour Judge Simpson
4 August 2005
CONTRACTS
Restraint of Trade - Contract of Employment - application by employer for interlocutory injunction to prevent former employee from breaching restraint of employment.
Interlocutory injunction - principles applicable when injuction likely to all but dispose of the action - serious question to be tried - balance of convenience favours the defendant - application refused.
American Cyanamid Co v Ethicon Ltd [1975] AC 396; Castlemaine Tooheys Ltd & Ors v The State of South Australia (1986) 161 CLR 148; Cayne v Global Natural Resources Pty Ltd [1984] 1 All ER 225; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533; Lansing Linde Ltd v Kerr [1991] 1 WLR 251; Lawrence David Ltd v Ashton [1991] 1 All ER 385; NWL Ltd v Woods [1979] 1 WLR 1294, applied.
Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1972-3) 133 CLR 288; Geraghty & Anor v Minter & Anor (1979) 142 CLR 177; Hydron Pty Ltd v Harous [2005] SASC 176; NE Perry Pty Ltd v Judge & Anor (2002) 84 SASR 86; Rentokil Pty Ltd v Lee (1995) 66 SASR 301; Woolworths Ltd v Olson & Anor (2004) 184 FLR 121, considered.

LAMBERTS BRS v KENTISH
[2005] SADC 99

This is an application, filed on 24 June 2005, originally in the Magistrates Court of South Australia, by the plaintiff, Lamberts BRS, for an interlocutory injunction, restraining the defendant, Nathan Kentish, until and including 5 November 2005 from:
1.Either directly or indirectly, whether solely or with any other person, carrying on, or being engaged, concerned or interested in or associated with, any business activity that Indigo Financial Pty Ltd, and/or John Tsoulos, either directly or indirectly, whether solely or with any other person, is or are carrying on, or is or are engaged, concerned or associated with and which is competitive with any business carried on by the plaintiff or any of its related bodies corporate.
2.Endeavouring or attempting directly or indirectly to induce any person or persons or company who shall be known to the defendant to have been at any time during his employment under the said agreement a client or clients of the plaintiff in its said practice or in that of any of its related bodies corporate to cease from dealing with the plaintiff or any of its related bodies corporate in the way of its said practice or business or activity or so to employ or deal with any person or persons or company other than the plaintiff or any of its related bodies corporate.
By its statement of claim, filed with the application for interlocutory relief, the plaintiff seeks orders in the same terms as those sought in the application, together with damages in the sum of $37,500, and compensation, or an indemnity against any capital…

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.

Continue reading Lamberts Brs v Kentish

Details

AGLC: Lamberts Brs v Kentish [2005] SADC 99
Case: [2005] SADC 99
Decision Date: 4 August 2005

CaseChat Overview and Summary

Lamberts BRS, a firm of accountants, sought an interlocutory injunction against its former employee, Nathan Kentish, who had commenced employment with a competitor, Indigo Financial Pty Ltd, after leaving Lamberts BRS. The firm alleged that Kentish had breached a restraint of trade clause in his employment agreement. The primary legal issues were whether there was a serious question to be tried regarding the enforceability of the restraint and whether the balance of convenience favoured granting the injunction. The court held that while there was a serious question to be tried, damages would likely be an adequate remedy for Lamberts BRS if it succeeded at trial. However, the balance of convenience favoured Kentish because an injunction would cause significant disruption to his career. Additionally, the court noted uncertainties about the enforceability of the restraint clause, which suggested that Lamberts BRS might have difficulty establishing its right to relief at trial. The application for an interlocutory injunction was dismissed.

Orders