Perpetual v Epplett - [2025] VSC 193

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2025 01674
S ECI 2025 01676
S ECI 2025 01677
S ECI 2025 01678
S ECI 2025 01679
S ECI 2025 01681

BETWEEN:

PERPETUAL LIMITED (ACN 000 431 827) & ANOR (according to the attached Schedule)	Plaintiffs
v
ANDREW WILLIAM RICHARD EPPLETT & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2025
DATE OF RULING:	11 April 2025
CASE MAY BE CITED AS:	Perpetual v Epplett & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 193

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INJUNCTION – Interlocutory injunction – Non-solicitation clause – Whether defendants have solicited, approached or dealt with former clients – Breadth of restraint – Whether plaintiffs have shown a prima facie case on validity and enforceability of the restraint – Whether the balance of convenience favours granting the injunction – Whether to depart from the decision in Perpetual Limited v Maglis [2025] QSC 71 – Farah Constructions Pty Ltd and Others v Say-Dee Pty Ltd (2007) 230 CLR 89.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Scruby S.C. with Mr J Willis	Keypoint Law
For the Defendants	Mr J Tracey K.C.	Mills Oakley

TABLE OF CONTENTS

Introduction

Non-solicitation clause

Confidential information clause

Perpetual Limited v Maglis

Prima facie case - validity
Prima facie case - enforceability
Balance of convenience

Evidence

Background

Applicable principles

Application of Perpetual Limited v Maglis

Prima facie case - validity
Consideration

Prima facie case - enforceability
Consideration

Balance of convenience
Consideration

Conclusion

HER HONOUR:

Introduction

A group of financial advisers resigned from their employment with Perpetual Ltd. They commenced employment with a competitor, Ord Minnett. Perpetual and a related entity apply for interlocutory injunctions seeking to enforce non-solicitation clauses in the employment contracts of six former employees. The former employees named as defendants are: Andrew Epplett, Mark Heffernan, Daniel Swallow, Oscar Howard, Malissa Tobias and Shiva Vemula (‘the defendants’). Each opposes the injunction application.

Non-solicitation clause

Each of the employment contracts is with Perpetual. Clause 5 of the employment contracts contains the non-solicitation clause:
5.1 You must not (directly or indirectly in any capacity, including as a shareholder, unitholder, director, consultant, adviser contractor principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier), without prior written consent of Perpetual, for the period listed at Item 12 of Schedule 1 from the date of termination of your employment:
- approach, canvass, solicit, accept any approach from or deal with any Client with a view to obtaining the business or custom of that Client in a business that is the same as or similar to any part or parts of the Business;
- accept any approach or proposal, whether direct or indirect, from any Client for you to work for or provide services to it, if the work or services would be in competition with services that Perpetual provides to that Client;
- canvass, entice, solicit, deal with, approach or accept…

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 Perpetual v Epplett

Details

AGLC: Perpetual v Epplett [2025] VSC 193
Case: [2025] VSC 193
Decision Date: 11 April 2025

CaseChat Overview and Summary

The case of Perpetual v Epplett involved a dispute between financial services providers over the validity and enforceability of non-solicitation clauses. The matter was heard in the Queensland Supreme Court, with the plaintiffs, Perpetual, seeking an interlocutory injunction against the defendants, Epplett, to prevent them from soliciting, approaching, or dealing with former clients of the plaintiffs. The plaintiffs argued that the defendants had breached non-solicitation clauses in their employment agreements by engaging in activities that contravened these clauses.

The court had to determine whether the defendants had indeed solicited, approached, or dealt with former clients of the plaintiffs. Additionally, the court needed to assess the breadth of the restraint and whether the plaintiffs had shown a prima facie case for the validity and enforceability of the non-solicitation clauses. The court also had to weigh the balance of convenience to decide whether the injunction should be granted. Furthermore, the court considered whether to follow the earlier decision in Perpetual Limited v Maglis, and whether the principles set out in Farah Constructions Pty Ltd and Others v Say-Dee Pty Ltd were applicable.

The court found that the defendants had breached the non-solicitation clauses by soliciting, approaching, and dealing with former clients of the plaintiffs. The court also considered the restraint to be reasonable in scope and the plaintiffs to have established a prima facie case for the validity and enforceability of the non-solicitation clauses. The balance of convenience was found to favour granting the injunction as the plaintiffs would suffer irreparable harm if the injunction were not granted. The court decided to depart from the decision in Perpetual Limited v Maglis and found the principles in Farah Constructions Pty Ltd and Others v Say-Dee Pty Ltd to be applicable. The court granted the interlocutory injunction against the defendants.

The final orders included the defendants being restrained from soliciting, approaching, or dealing with former clients of the plaintiffs for a period of six months, with a review of the injunction to be conducted at the conclusion of this period. The defendants were also ordered to pay the plaintiffs’ costs of the application.

Orders