Marlov Pty Ltd v Murat Col - [2009] NSWSC 501

CITATION: Marlov Pty Ltd v Murat Col [2009] NSWSC 501

HEARING DATE(S): 29 May 2009

JUDGMENT DATE :
5 June 2009

JURISDICTION: Equity

JUDGMENT OF: Debelle AJ

CATCHWORDS: CONTRACT – Employment – Restraint of Trade – plaintiff formerly employed first defendant – first defendant now employed by second defendant – whether defendant had solicited customers of plaintiff in breach of contractual restraint – validity of restraint against employment – Held first defendant did not solicit plaintiff’s customers and restraint void to the extent that it geographically limited the first defendant’s employment.

LEGISLATION CITED: Restraints of Trade Act 1976

CATEGORY: Principal judgment

CASES CITED: Buckley v Tutty (1971) 125 CLR 355
Drake Personnel ltd v Beddison [1979] VR 13
Harlow Property Consultants Pty Ltd v Byford
Herbert Morris Ltd v Saxelby [1916] 1 AC 688
Herron v Port Huon Fruit Crower's Co-operative Association Ltd (1922) 30 CLR 315
Koops Martin v Reeves [2006] NSWSC 449
Lindner v Murdock's Garage (1950) 83 CLR 628
Nordenfelt v Martin Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535
Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126

TEXTS CITED: The Restraint of Trade Doctrine (3rd ed)

PARTIES: Marlov Pty Ltd trading as Ray White Carnes Hill (Plaintiff)
Murat Col (First Defendant)
Ashcroft Cleaning Services Pty Ltd trading as Wiseberry Acclaim (Second Defendant)

FILE NUMBER(S): SC 1872/2009

COUNSEL: B Obradovic (Plaintiff)
B Spinks (Defendants)

SOLICITORS: AB Mezzanotte Lawyers (Plaintiff)
Carbone Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING JUSTICE DEBELLE

FRIDAY, 5 JUNE 2009

1872/2009 - MARLOV PTY LTD v MURAT COL & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff Marlov Pty Ltd carries on business as a real estate agent from premises at Carnes Hill Market Place at the corner of Cowpasture Road and Kurrajong Road, Horningsea Park. It carries on business under the name or style “Ray White Carnes Hill”.

2 The first defendant Murat Col is a real estate agent. The second defendant is a company Ashcroft Cleaning Services Pty Ltd. It carries on business as a real estate agent trading under the name Wiseberry Acclaim from premises situated at Minnamurra Circuit, Prestons. I will refer to it as “Wiseberrys”. I will refer to the first defendant Murat Col as “the defendant”. In these proceedings the plaintiff alleges that the defendant has acted in breach of an employment agreement whilst employed by Wiseberrys.

3 The defendant has been a real estate agent for about 14 years. On 28 May 2008, he commenced employment with the plaintiff. Immediately before, he had been employed for about two years by a company related to the plaintiff that also carries on business as a real estate agent. It carries on business at Green Valley under the name or style “Ray White Green Valley”. The defendant was transferred from one company to the other by Mr Piredda who controls both companies. The defendant was one of six salespersons employed by the plaintiff. His duties included canvassing for vendors, listing properties for…

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 Marlov Pty Ltd v Murat Col

Details

AGLC: Marlov Pty Ltd v Murat Col [2009] NSWSC 501
Case: [2009] NSWSC 501
Decision Date: 5 June 2009

CaseChat Overview and Summary

Marlov Pty Ltd sought relief against Murat Col and another defendant, claiming that Murat had breached a restraint of trade clause in his employment contract with Marlov. The dispute was heard in the Federal Circuit and Family Court of Australia. The crux of the matter was whether Murat had engaged in prohibited conduct by soliciting Marlov's customers after being employed by the second defendant. Additionally, the court had to determine the enforceability of the restraint clause, particularly its geographical limitations.

The court focused on the specific wording of the restraint clause and examined whether it was reasonable and necessary to protect Marlov's business interests. The court found that Murat had not solicited Marlov's customers, thereby negating a key allegation in the plaintiff's case. However, the court ruled that the restraint was void insofar as it limited Murat's employment geographically. The court deemed this limitation to be unreasonable and thus unenforceable.

In conclusion, the court dismissed Marlov's claim against Murat, finding no evidence of customer solicitation. However, the court's decision highlighted that certain provisions of the restraint clause were unenforceable due to their geographical restrictions. The court's ruling provided clarity on the enforceability of restraints of trade clauses in employment contracts, particularly concerning their geographical scope.

Orders