DEBELLE J. The central issue in this appeal is the extent to which, if at all, a former employee in a real estate business may take from the business and use a list of customers or clients of the business who engage it to manage rental properties. In the real estate industry, such a list of customers is commonly called “the rent roll”.
This is an appeal from a judge of this Court who had dismissed an appeal from a decision of a magistrate. The respondent had prepared a list of some of the customers listed on the rent roll. The magistrate had dismissed the appellant’s claim for damages grounded on the respondent’s alleged use of the list and a claim for delivery up of that list.
The appellant carries on business as a real estate agent and rental property manager at Blackwood. The respondent was employed by the appellant from 26 August 1996 to 3 March 1999 as the manager of its rental property business. There was no written contract of employment. The rental property business was an extensive part of the appellant’s business and in 1999 involved the management of some 140 properties. The respondent’s duties required her to manage these properties and those duties involved periodic and often regular contact with the owners of the properties or their tenants.
On 3 March 1999 the respondent gave two weeks notice of her intended resignation. Her employment was terminated by the appellant later the same day. At the time of her resignation, and immediately thereafter, the respondent did not expect to take up employment elsewhere. However, she was living with a Mr Michael Anstey, who conducted his own real estate business which competed with the appellant’s business and traded as M V Anstey Real Estate. By 8 March 1999 she had decided to commence employment with him.
The Rent Roll
The appellant kept a list of the rental properties it managed and their owners. I will call it “the rent roll”. It was the responsibility of the respondent to keep the rent roll up to date. The appellant employed an administrative assistant in its property management business called Ms Simpson. The respondent gave Ms Simpson information from time to time to be entered on the rent roll.
While employed by the appellant, the respondent kept a diary for the year 1999 and an address book. The diary and the address book contained information handwritten by the respondent including the names, addresses and telephone numbers of some of the owners of rental properties which she had managed during her employment with the appellant. In the course of her work, the respondent used the diary and address book extensively and usually carried them with her. At no time did the respondent keep the fact of the existence of the diary or the address book secret. She used the address book when at the office…
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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AGLC
NP Generations Pty Ltd v Feneley [2001] SASC 185
Case
[2001] SASC 185
Decision Date
CaseChat Overview and Summary
The case of NP Generations Pty Ltd v Feneley [2001] SASC 185 involved an appeal by the appellant, NP Generations, against the decision of a judge of the South Australian Supreme Court who had dismissed NP Generations' appeal from a decision of a magistrate. The respondent, Lyn Feneley, had been employed by NP Generations as the manager of its rental property business. Upon termination of her employment, Feneley took with her an address book and a diary that contained information from NP Generations' rent roll, a list of customers who engaged NP Generations to manage their rental properties. NP Generations brought proceedings against Feneley, claiming damages and delivery up of the address book and diary on the basis that they contained confidential information.
The legal issues in the case concerned the extent to which a former employee can use a list of customers or clients of the business after their employment has ended. The Full Court found that the list of customers, or rent roll, was confidential information, but the issues centred on the use of the address book and diary which Feneley had compiled from the rent roll for a legitimate purpose. The court had to decide whether Feneley breached any duty to NP Generations by using the address book and diary after her employment had ceased.
The Full Court held that the respondent was under an obligation to deliver up the address book as it was a copy of the appellant's confidential list of customers. The court emphasised the importance of equitable principles governing the use of confidential information and the fact that the list of customers was entrusted to Feneley for the limited purpose of managing NP Generations' rental property business. The court found that the judge had erred in his approach by not considering these principles. As for the diary, the court concluded that it did not constitute confidential information, as it contained information that was part of Feneley's general knowledge, skill, and experience.
The Full Court allowed the appeal and ordered delivery up of the address book. The court also invited the parties to discuss the terms of the order, as well as the course the appeal should take in relation to damages and costs.