Perpetual v Epplett
[2025] VSC 193
•11 April 2025
| 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 any approach from any person or entity who had entered into discussions or negotiations with Perpetual or a Related Entity or to whom Perpetual or a Related Entity made a presentation or otherwise engaged in any marketing or solicitation activities during the period of your employment with a view to such person or entity becoming a client of Perpetual, with a view to obtaining the business or custom of that person or entity in a business that is the same as or similar to any part or parts of Perpetual's business.
- solicit, interfere with or endeavour to entice away from Perpetual any director, officer, employee, contractor or agent of Perpetual with whom you worked at any time during the last 12 months of your employment; or
- counsel, procure or otherwise assist any person, firm or entity to do any of the acts referred to above.[1]
[1]See, e.g., exhibit ‘ARGB-1’ to the affidavit of Andrew Baker sworn on 28 March 2025 and filed in S ECI 2025 01674 (‘Baker affidavit in Epplett’), 192.
Clause 15 of the employment contracts contain definitions, including:
“Business” means any business carried on by Perpetual or any of its Related Entities in which you worked at any time during the last 12 months of your employment.
“Client” means any person, firm or entity who was, at any time in the 12 months prior to the termination of your employment with Perpetual:
(a) a client or customer of Perpetual or any of its Related Entities; and
(b) with whom you worked or had contact or dealings at any time during the last 12 months of your employment.
“Related Entities” means any of Perpetual’s related bodies corporate (as that term is defined in the Corporations Act 2001).[2]
[2]Ibid, 194-195.
Item 12 of Schedule 1 of the employment contracts contain the restraint period for the non-solicitation clause. It is 12 months for the defendants, followed by cascading substituted terms of six months, three months and one month if the former periods are ‘adjudged by a court as being invalid’.[3]
[3]Ibid, 196.
Confidential information clause
Clause 3.2 of the employment contracts contain a confidential information clause. It states that the defendants would have access to confidential information belonging to Perpetual, its Related Entities and its clients. It states that the defendants must not disclose confidential information; use confidential information for their own or anyone else’s benefit; or retain, copy, or reproduce confidential information.[4]
[4]Ibid, 190.
Clause 15 defined confidential information as:
“Confidential Information” mean all confidential information of Perpetual or its Related Entities including, but not limited to:
a) trade secrets and confidential know-how, financial, accounting, marketing and technical information, customer and supplier lists, know-how, technology, operating procedures, price lists, data bases, information about tenders and proposals to prospective customers, prospective customer lists, source codes and methodologies, of which you become aware or generate (both before and after the day this Agreement is signed) in the course of, or in connection with, your employment with Perpetual (including confidential information belonging to a third party); and
b) all copies, notes and records based on or incorporating the information referred to in paragraph (a).[5]
[5]See, eg, exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 194.
Perpetual did not press for an injunction regarding use and disclosure of confidential information.[6]
[6]See summons filed by the plaintiffs on 31 March 2025, [5]; plaintiffs’ written submissions filed on 2 April 2025, [6].
Perpetual Limited v Maglis
Since the hearing of the injunction application, Chief Justice Bowskill of the Supreme Court of Queensland has published a decision concerning the same plaintiffs and one of the financial advisers who resigned from Perpetual and moved to Ord Minnett, namely Constantine Maglis: Perpetual Limited v Maglis.[7] The non-solicitation clause in Mr Maglis’ employment contract is the same as the employment contracts relied upon here, save that the duration of the restraint is 24 months, with cascading terms of twelve, six and three months. The Chief Justice dismissed Perpetual’s application for injunctions.
[7][2025] QSC 71 (‘Perpetual Limited v Maglis’).
The parties provided submissions on the application of Perpetual Limited v Maglis. Perpetual says that it should be distinguished and the defendants say that it should be followed. This is now the central issue in dispute between the parties.
In Farah Constructions Pty Ltd and Others v Say-Dee Pty Ltd, [8] the curiam held:
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.[9] (citations omitted)
[8](2007) 230 CLR 89 (‘Farah Constructions’).
[9] Farah Constructions, [135].
The Chief Justice’s decision is not plainly wrong; it is plainly correct. A description of the decision follows.
Prima facie case - validity
The prima facie case for the validity of the non-solicitation clause was not strong.[10] It ‘has real challenges, having regard to the extremely broad definition of “Client”, which I do not accept is capable of being severed, read down, or read with additional words, as submitted by the applicants.’[11] It was difficult to see how a restraint ‘particularly on accepting approaches’, would be enforceable for a substantial period of time.[12] The definition of Client refers to ‘a client of or customer of Perpetual or any of its Related Entities’. The evidence suggested that Perpetual has about 44 related entities.[13] Authorities have held a restraint clause purporting to extend to related entities is too uncertain.[14] Perpetual contended the breadth of the definition was filtered by paragraph (b) which adds ‘with whom you worked or had contact or dealings at any time during the last 12 months of your employment’ [underline added]. Mr Maglis’ submission that this phrase was broad was accepted because of the composite phrase ‘worked or had contact or dealings’. Contact could mean social contact and dealings could extend to in-passing non-commercial transactions. Perpetual’s submission that the following prefacing words should be read into the definition was rejected: ‘substantial work related [contact or dealings]’.[15] The phrase ‘had contact or dealings’ should not be severed because it is contained within a single definition rather than a standalone clause.[16] In response to Perpetual’s submission it could identify clients: this does not answer the interpretation question.[17]
[10]Perpetual Limited v Maglis, [32].
[11]Ibid, [31].
[12]Ibid, [31].
[13]Ibid, [22].
[14]Ibid, footnote 17.
[15]Ibid, [27].
[16]Ibid, [29].
[17]Ibid, [30].
Prima facie case - enforceability
As to enforceability, there was no prima facie case that Mr Maglis had solicited clients. Mr Maglis’ sworn evidence was that he did not initiate contact with the clients but that they called him. Twenty-two clients who had worked with Mr Maglis sent letters to Perpetual after he had left, asking to be transferred to Ord Minnett. Perpetual responded with letters offering to arrange a phone call with the current Perpetual Wealth Adviser, and amongst other things, saying if they still wished to leave, their portfolio could be transferred to Mr Maglis, but noting he was under a restraint, and so it did not consent to the transfer.
There was a prima facie case on enforceability, albeit weak, that Mr Maglis had ‘accepted any approach from’ these clients per cl 5.1 of the non-solicitation restraint.[18] There was evidence that some clients had forwarded the letters from Perpetual to Mr Maglis or otherwise contacted him afterwards. Further, that Mr Maglis then began an ‘onboarding process’ with those clients.[19] This included a comprehensive ‘discovery’ meeting with them.
[18]Perpetual Limited v Maglis, [42].
[19]Ibid, [39].
The prima facie case was only in respect of Perpetual, not the related entity Perpetual Trustee Company Limited (‘Perpetual TC’). It was not the employer. It held contractual relationships with the clients. The basis upon which it was entitled to relief was unexplained.[20]
[20]Ibid, [20].
Balance of convenience
The Chief Justice stated:
…the balance of convenience favours refusing the grant of any injunctive relief, given the weak case for enforceability of the restraint … and the fact that the interests of third parties will be affected by the making of such an order in a manner which I consider to be inconsistent with the public interest, particularly as it concerns those third parties’ private financial affairs.[21]
[21]Ibid, [49].
The impact of an injunction on the clients, especially the 22 who had transferred, was an important factor weighing against granting the injunctions.[22] The submission that any protectable customer connection with those clients had already dissipated had force. Further, clients are free to terminate their relationship with Perpetual. It would be:
…of serious concern to be making an order, the effect of which would be to restrict the choice of clients to have their personal financial matters looked after by a person they trust and, in some cases, have worked with for a number of years. Indeed, it has been observed that a restraint which restricts choices available to customers of services may be unreasonable in the public interest.[23]
[22]Ibid, [45].
[23]Perpetual Limited v Maglis, [46].
The evidence did not show that Mr Maglis had breached or threatened to breach his contractual obligations of confidentiality. His onboarding process, whilst consistent with accepting approaches from clients, was inconsistent with the suggestion he was misusing confidential information.[24]
[24]Ibid, [50].
Turning now to the evidence here.
Evidence
The plaintiffs rely on the affidavits of its Managing Partner, Andrew Baker sworn on 28 March 2025 and 2 April 2025. Slightly different versions of Mr Baker’s affidavit were filed in each proceeding.
The defendants rely on two affidavits of their solicitor, Adam Lunn, both sworn on 31 March 2025, and the affidavit of their solicitor, Kirra Griffin, affirmed on 1 April 2025 (‘Griffin affidavit’). Slightly different Griffin affidavits were filed in each proceeding. Each defendant also filed their own affidavit.
Background
Perpetual is the holding company of the Perpetual Group of companies (‘Perpetual Group’). Perpetual TC is a wholly owned subsidiary of Perpetual and a related body corporate. Perpetual TC holds an Australian Financial Services Licence.[25]
[25]Exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 105-132.
The Perpetual Group is in the business of providing financial services. The defendants said Perpetual is the ultimate holding company of 44 entities.[26] Mr Baker said that the Perpetual Group can be broadly divided into the following divisions: wealth management, asset management and corporate trust.[27] The wealth management division consists of a financial planning and private wealth management business known as either Perpetual Wealth Management or Perpetual Private (‘Perpetual Private’). [28] The client base of this business is principally high-net-worth individuals, families, businesses and community organisations. Perpetual TC holds the contractual relationship with Perpetual Private’s clients.[29]
[26]Affidavit of Kirra Griffin affirmed on 1 April 2025 filed in S ECI 2025 01674, [6].
[27]Baker affidavit in Epplett, [11].
[28]Ibid, [11(a)].
[29]Ibid, [15].
Mr Baker is the Managing Partner of the ‘Private Clients Team’ within Perpetual Private. This team consists of approximately 134 staff including Lead Partners, Partners, Associate Partners, Senior Financial Advisers, Advisers, Associates, Associate Financial Advisers and support staff.[30] The Private Clients Team manage various accounts on behalf of the clients. Mr Baker deposed that clients of the Private Clients Team often use other parts of Perpetual Private’s business,[31] although this is in dispute.[32]
[30]Ibid, [14].
[31]Ibid, [27].
[32]Affidavit of Mark Heffernan affirmed on 2 April 2025 (‘Heffernan affidavit’), [77(d)].
The defendants were offered employment by Perpetual in August 2019 and commenced employment in about January 2020 in the following positions:
(a)Mr Epplett, Mr Swallow, Mr Howard and Mr Vemula were employed as Senior Financial Advisers;
(b)Ms Tobias was employed as a Senior Financial Adviser, being promoted to a Partner from 1 July 2022; and
(c)Mr Heffernan was employed as an Associate Partner, being promoted to a Partner from 1 July 2022.
Prior to their employment with Perpetual, the defendants were employed by the Commonwealth Bank of Australia (‘CBA’). The defendants said that numerous clients from CBA followed them to Perpetual.[33]
[33]See, e.g., affidavit of Andrew Epplett sworn on 2 April 2024 (‘Epplett affidavit’), [6]; Heffernan affidavit, [9], [13]; affidavit of Daniel Swallow sworn on 1 April 2025 (‘Swallow affidavit’), [6]; affidavit of Oscar Howard sworn on 2 April 2025 (‘Howard affidavit’), [6]; affidavit of Malissa Tobias affirmed on 2 April 2025 (‘Tobias affidavit’), [6]; affidavit of Shiva Vemula affirmed on 1 April 2025 (‘Vemula affidavit’), [6].
The purpose of the Senior Financial Adviser role was to provide financial planning services to new and existing Perpetual Private clients and to assist in ‘generating new business and referral sources.’[34] The purpose of the Partner role was to, among other things, to generate business growth and manage a team.[35]
[34]Exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 197.
[35]Exhibit ‘ARGB-1’ to the affidavit of Andrew Baker sworn on 28 March 2025 and filed in S ECI 2025 01676 (‘Baker affidavit in Heffernan’), 215.
In entering into employment with Perpetual, all defendants executed substantially similar employment contracts,[36] with the non-solicitation and confidentiality clauses outlined above.
[36]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 186-196; exhibit ‘ARGB-1’ to the Baker affidavit in Heffernan, 200-214.
On 29 November 2024, the defendants gave notice of their resignation to Perpetual, effective from 28 February 2025.[37]
[37]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 199.
As of 29 November 2024, Mr Epplett and Mr Howard’s joint client list was comprised of 101 clients.[38] Perpetual say Mr Heffernan and Ms Tobias’ joint client list was comprised of 89 clients.[39] This is disputed by Mr Heffernan and Ms Tobias.[40] Mr Swallow and Mr Vemula’s joint client list was comprised of 59 clients.[41]
[38]Baker affidavit in Epplett, [63].
[39]Baker affidavit in Heffernan, [65].
[40]Heffernan affidavit, [77(k)]; Tobias affidavit, [85(g)].
[41]Affidavit of Andrew Baker sworn on 28 March 2025 and filed in S ECI 2025 01677 (‘Baker affidavit in Swallow’), [63].
On 1 December 2024, the Australian Financial Review published an article stating that six advisers had resigned from Perpetual to join Ord Minnett.[42]
[42]Exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 200-202.
On 4 December 2024, Melbourne’s lead partner of Perpetual, Chemere Brown, emailed the defendants with her expectations for their continued client contact.[43]
[43]Exhibit ‘MHB-1’ to the Heffernan affidavit, 1.
On 13 December 2024, Perpetual’s solicitors individually wrote to the defendants placing them on gardening leave and requesting they sign an undertaking to comply with their post-employment restraints as contained in their employment contracts.[44] Once on gardening leave, the defendants said they deleted their former clients’ phone numbers from their personal mobile phones.[45]
[44]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 203-207.
[45]Epplett affidavit, [20]; Heffernan affidavit, [46]-[47]; Swallow affidavit, [26]; Tobias affidavit, [36]; Vemula affidavit, [26].
During the period of gardening leave, the defendants deposed that they were called and/or messaged by former clients. If they answered the calls, they read out a script provided by Perpetual.[46]
[46]Epplett affidavit, [24]-[26]; Heffernan affidavit, [49]-[55]; Swallow affidavit, [27]-[29]; Howard affidavit, [23]-[25]; Tobias affidavit, [40]; Vemula affidavit, [27]-[29].
In either December 2024 or January 2025, an employee of Perpetual spoke with the defendants who confirmed they understood their post-employment obligations.[47]
[47]See, e.g., Baker affidavit in Epplett, [72]; Baker affidavit in Heffernan, [76]; Baker affidavit in Swallow, [76].
On 20 December 2024, the defendants’ solicitors wrote to Perpetual advising, among other things, that the request for undertakings was without foundation.[48] In a responsive letter of 15 January 2025, Perpetual’s solicitors requested the defendants confirm in writing that they would comply with their post-employment obligations.[49]
[48]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 208.
[49]Ibid, 209-210.
On 23 January 2025, the defendants’ solicitor advised that the defendants were aware of their obligations and had ‘no intention of breaching them’.[50]
[50]Ibid, 211.
On 28 February 2025, the defendants’ employment with Perpetual concluded.
In March 2025, the defendants commenced employment with Ord Minnett in Melbourne.[51]
[51]Epplett affidavit, [27]; Heffernan affidavit, [57]; Swallow affidavit, [33]; Howard affidavit, [26]; Tobias affidavit, [56]; Vemula affidavit, [31].
Ord Minnett is in the business of financial services, including financial planning and private wealth management. Mr Baker deposed that Ord Minnett is a direct competitor of Perpetual.[52] I accept that evidence for the purpose of this ruling.
[52]Baker affidavit in Epplett, [84].
Following 3 March 2025, the defendants said that they were contacted by some of their former Perpetual clients. Upon contact, they informed the clients that they were taking a ‘prudent and cautious approach’ and would write to them. [53] Mr Heffernan and Ms Tobias also told clients that if Perpetual did not consent to the transfer, they could only continue working with them if they confirmed their decision to transfer was not influenced by them.[54] The defendants subsequently sent their former clients a pro-forma letter (‘pro-forma letter to clients’) and a pro-forma letter to provide to Perpetual seeking to transfer their financial services (the ‘pro-forma letter from clients to Perpetual’). The pro-forma letter to clients relevantly stated:
[53]Epplett affidavit, [29]; Heffernan affidavit, [58]-[61]; Swallow affidavit, [35]; Howard affidavit, [28]; Tobias affidavit, [67]; Vemula affidavit, [33].
[54]Heffernan affidavit, [59]; Tobias affidavit, [65].
As you may be aware, the terms of my employment with Perpetual Limited (Perpetual) contains clauses that purport to restrain me from providing the same or similar financial services that I provided to you prior to my resignation.
I am adopting a prudent approach to these matters, regardless of whether those clauses are enforceable. I intend to comply with them rather than face the prospect of threatened or actual litigation by Perpetual.
We trust you appreciate that the prospect of the costs, stress and inconvenience of having to defend the threatened or actual litigation, irrespective of whether it has any merits, is not a problem that we want to invite upon ourselves.
Whilst I would be pleased to accept you as a client, I will only be able to do so if Perpetual confirms that it has no objection, or you are able to confirm that I have not:
·approached you;
·either before or after my resignation, canvassed or solicited your business; and
·consulted with you or advised you in any way since my resignation.
This is because even if I merely told you in passing that I was going to set up my own business or move to another employer, and you have acted upon that information to seek to transfer your business to me, then I will nevertheless be required to decline your request out of abundance of caution, unless I can be certain that there will be no retribution from Perpetual.
Accordingly, if you wish to request Perpetual’s consent to you transferring your business to me, I enclose a draft form of letter for you to send to Perpetual.
If you are able to obtain that consent from Perpetual, then I would be delighted to work with you.
If Perpetual is not content to grant consent, I would be happy to work with you once I am able to recommence as your advisor at the end of the next 12 months.[55]
[55]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 255; exhibit ‘AWREB-1’ to the Epplett affidavit, 19.
The pro-forma letter from clients to Perpetual relevantly stated:
We have been a client of Perpetual Limited (Perpetual) and have valued the advice we have received. During our time as Perpetual clients, we have dealt with [insert employee] in respect of our financial services needs.
We understand that [insert employee] has now left Perpetual.
Whilst we appreciate that people come and go from organisations, our relationship with [insert employee] is a trusted one and one we wish to continue with.
Accordingly, we would be grateful if you would confirm that you have no objection to [insert employee] continuing to assist us with our financial services needs and that you will not take any action against [him/her] as a consequence of our request to transfer our business to [him/her].[56]
[56]Exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 256; see also exhibit ‘AWREB-1’ to the Epplett affidavit, 20.
Perpetual received substantially identical requests from clients seeking to transfer their files to Ord Minnett as follows:
(a)between 5 March 2025 and 24 March 2025, eight clients previously serviced by Mr Epplett and Mr Howard;[57]
(b)between 7 March 2025 and 20 March 2025, nine clients previously serviced by Mr Swallow and Mr Vemula;[58] and
(c)between 14 March 2025 and 24 March 2025, eleven clients previously serviced by Mr Heffernan and Ms Tobias requested to transfer.[59]
[57]Baker affidavit in Epplett, [85]-[87].
[58]Baker affidavit in Swallow, [89], [93].
[59]Baker affidavit in Heffernan, [90]-[92].
In response to the transfer requests, Perpetual sent a letter seeking to arrange a call with the client’s new adviser. The letter also relevantly stated:
If, however, you still wish to transfer your portfolio from Perpetual to [defendants], who we understand are now working at Ord Minnett, we will respect your decision and adhere to your request. We note, however, that your former adviser’s owe a number of post-employment contractual obligations to Perpetual, and as a consequence of this, they are restricted from managing your portfolio until after 28 February 2026. For this reason, Perpetual regrets that it cannot consent to [defendants] providing financial services to you and, in the event that they should do so, we will have no choice in those circumstances other than to commence Court proceedings against them (and potentially their new employer) to protect Perpetual’s legitimate business interests and ensure their strict compliance with their post-employment contractual obligations to our business.[60]
[60]See e.g.: exhibit ‘AWREB-1’ to the Epplett affidavit, 54; exhibit ‘MHB-1’ to the Heffernan affidavit, 129.
On 11 March 2025, Ms Brown spoke with a Perpetual client formerly serviced by Mr Swallow and Mr Vemula. Mr Baker deposed that this client told Ms Brown that they had received a phone call in late 2024 from Mr Swallow and Mr Vemula, who allegedly told the client that they were leaving Perpetual and would contact the client in March.[61] This is adamantly denied by Mr Swallow and Mr Vemula.[62] This factual dispute is a matter for trial. It cannot be determined here.
[61]Baker affidavit in Swallow, [91].
[62]Swallow affidavit, [54(f)]; Vemula affidavit, [53(f)].
On 12 March 2025, Perpetual’s solicitors wrote to the defendants’ solicitors with individual concerns about each defendant. These concerns included that Mr Epplett, Mr Howard, Mr Swallow and Mr Vemula may have been in breach of the non-solicitation restraints as Perpetual had received requests from clients to transfer to Ord Minnett,[63] and that Mr Heffernan and Ms Tobias were in breach of the non-compete restraint.[64] Perpetual requested the defendants provide undertakings to comply with their post-employment obligations.[65]
[63]Exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 232-236; exhibit ‘ARGB-1’ to the affidavit of Andrew Baker sworn on 28 March 2025 and filed in S ECI 2025 01678 (‘Baker affidavit in Howard’), 203-207; exhibit ‘ARGB-1’ to the Baker affidavit in Swallow, 237-241; exhibit ‘ARGB-1’ to the affidavit of Andrew Baker sworn on 28 March 2025 and filed in S ECI 2025 01681 (‘Baker affidavit in Vemula’), 237-241.
[64]Exhibit ‘ARGB-1’ to the Baker affidavit in Heffernan, 252-255; exhibit ‘ARGB-1’ to the affidavit of Andrew Baker sworn on 28 March 2025 and filed in S ECI 2025 01679 (‘Baker affidavit in Tobias’), 252-255.
[65]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Heffernan, 254-255.
On 12 March 2025, Perpetual’s solicitors also wrote to Ord Minnett requesting it not induce the defendants to act in breach of their employment contracts and actively directed them to comply with their obligations.[66] On 14 March 2025, Ord Minnett confirmed that it had reminded the defendants to comply with their post-employment obligations and had not encouraged them to breach these obligations.[67]
[66]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 249-250.
[67]Ibid, 259.
On 14 March 2025, the defendants’ solicitors wrote to Perpetual’s solicitors confirming that the defendants had commenced employment with Ord Minnett, but not conceding that Ord Minnett was a direct competitor (‘defendants’ solicitors’ 14 March 2025 letter’). Further, they denied that the defendants had solicited Perpetual’s clients, stating that Perpetual’s clients had approached them, and noting that the defendants had relationships with some clients that pre-dated their employment with Perpetual.[68] This correspondence attached the pro-forma letter to clients and the pro-forma letter from clients to Perpetual. It is not in dispute that the defendants sent these pro-forma letters.[69]
[68]Ibid, 251-254.
[69]See, e.g., Epplett affidavit, [30]-[31].
On 19 March 2025, Perpetual’s solicitors wrote to the defendants’ solicitors stating, among other things, that they considered the pro-forma letter to clients and the pro-forma letter from clients to Perpetual to be in breach of the non-solicitation restraints in the employment contracts. Perpetual foreshadowed commencing a proceeding if the defendants failed to sign the previously provided undertakings by 20 March 2025.[70] In a responsive letter of the same date, the defendants’ solicitors sought clarification of Perpetual’s related entities, the number of clients of each related entity, and whether the undertakings sought would be inclusive of the related entities.[71]
[70]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 260-261.
[71]Ibid, 262-268.
In a separate letter of 19 March 2025, the defendants’ solicitors stated that the defendants had not breached any enforceable restraints. Further, they stated that Perpetual had attempted and been unsuccessful in trying to ‘shore up’ goodwill with some clients who had decided to leave and therefore, Perpetual had no further interests to protect.[72]
[72]See, e.g., exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 269-274, 282-291.
On 20 March 2025, Perpetual’s solicitors wrote to the defendants’ solicitors stating, among other things, that ‘the only relevant Perpetual entities are Perpetual Limited (ACN 000 431 827), as the former employer of your clients and the overarching Perpetual entity’ and Perpetual TC. Additionally, Perpetual stated that the defendants ‘ought to be fully aware of which Clients they serviced’ during the 12 months prior to the cessation of their employment with Perpetual.[73]
[73]Ibid, 293-294.
On 20 March 2025, the defendants’ solicitor responded to the above letter, expressing concern about Perpetual’s interpretation and the ambiguity of the terms ‘Related Entities’ and ‘Clients’ as contained in the employment contracts.[74]
[74]Ibid, 295-297.
On 21 March 2025, Perpetual commenced the proceeding against Mr Maglis in the Supreme Court of Queensland.[75]
[75]Exhibit ‘ANMLB-1’ to the affidavit of Adam Lunn sworn on 31 March 2025 filed in S ECI 2025 01674, 199-203.
As of 28 March 2025, Mr Baker deposed that nine Perpetual clients had given instructions to Perpetual to cease providing advice and had requested their files be transferred.[76] He said that it is Perpetual’s usual practice to stop advice fees upon receiving a transfer request and to action these requests in accordance with the clients’ wishes, despite this potentially conflicting with a former employee’s obligations.[77]
[76]See, e.g., Baker affidavit in Epplett, [98].
[77]Baker affidavit in Epplett, [100]-[102].
Mr Baker also said that he remained concerned that the defendants had used and would continue to use confidential information to pursue Perpetual’s clients, such as client names and contact details, information available on Perpetual’s internal platforms and financial data.[78]
[78]Baker affidavit in Heffernan, [58], [116].
The defendants deny that they have had dealings with, solicited or performed any work for any former clients that they provided services for while employed by Perpetual.[79]
[79]See, e.g., Epplett affidavit, [44]-[46]; Heffernan affidavit, [64], [75]-[76]; Swallow affidavit, [46], [51]-[52]; Howard affidavit, [37], [42]; Tobias affidavit, [83]-[84]; Vemula affidavit, [51]-[52].
On 28 March 2025, Perpetual and Perpetual TC commenced proceedings against the defendants in this Court.
Applicable principles
The legal principles concerning interlocutory injunctions are well settled. The plaintiffs must establish that there is a serious question to be tried, that damages are inadequate, and that the balance of convenience favours granting the injunction.[80] In Bradto Pty Ltd v State of Victoria,[81] the Court of Appeal held that where the relief sought is mandatory, the Court should consider which avenue carries ‘the lower risk of injustice if it should turn out to have been “wrong”’.[82]
Application of Perpetual Limited v Maglis
[80]Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57, [19] (Gleeson CJ and Crennan J), [69]-[72] (Gummow and Haynes JJ).
[81](2006) 15 VR 65 (‘Bradto’).
[82]Ibid, [35].
Prima facie case - validity
Perpetual says that the decision does not engage with submissions made here concerning the contractual obligations on each defendant to obtain new customers, including from other divisions in Perpetual. The defendants’ position descriptions required them to extend Perpetual’s clients base by collaborating in the generation of new business, which included collaboration on business planning.[83] This included cross selling to Perpetual Group’s client base and developing new business by converting leads from a variety of sources including introductions from alliance partners. The defendants were required to comply with Perpetual Group’s policies and they concerned the confidential information of related entities as well as Perpetual.[84] The policies acknowledge employees will have access to Perpetual Group’s confidential information. Perpetual says that the authorities relied upon by the Chief Justice are only of limited assistance in circumstances that do not involve cross-selling.
[83]Baker affidavit in Epplett, [43]-[48], [60]; exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 197; Baker affidavit in Heffernan, [43]-[48], [62]; exhibit ‘ARGB-1’ to the Baker affidavit in Heffernan, 215.
[84]Exhibit ‘ARGB-2’ to the Baker affidavit in Epplett, 523, 530.
Perpetual says that the Chief Justice did not refer to any authority as to the legal basis for Perpetual TC to seek injunctive relief whereas here the Court was directed to Koops Martin Financial Services Pty Ltd v Reeves[85] (‘Koops’).
[85][2006] NSWSC 449 (‘Koops’), [78].
Consideration
There is no basis to distinguish the findings on the prima facie case (validity) in Perpetual Limited v Maglis. I find the prima facie case (validity) is not strong.
The decision references Perpetual’s submissions about Mr Maglis obtaining and developing customers for Perpetual’s business.[86] There is also reference to the confidentiality obligation (in clause 3.2 of his employment contract).[87] It expressly refers to access to confidential information of Perpetual’s Related Entities and obligations to preserve confidential information.
[86]Perpetual Limited v Maglis, [28].
[87]Ibid, [50].
As described above, the Chief Justice held that the clause was too broad and could not be severed. One basis for this was the words ‘you worked or had contact or dealings’. Her Honour declined to read in the words ’substantial work related’ to narrow contact or dealings. The same analysis applies here. That problem is not cured by reference to the obligations of the defendants regarding their work across the Perpetual Group. The other basis for the Chief Justice finding the clause too broad and uncertain was the definition of Related Entities. That finding rested on the same evidence as here: there are 44 related entities and, like Mr Maglis, the defendants say they did not know what the related entities were. The authorities referred to by the Chief Justice as examples are just that.
The Chief Justice cited the very reference Perpetual relies on.[88] In Koops, Brereton J reviewed authorities concerning customers of the corporate group and their inclusion in a non-solicitation clause. His Honour concluded that generally a ‘restraint against the solicitation of customers of a company other than the employer is void’.[89] Brereton J noted there is an exception where the holding group carries on business through its subsidiaries. Brereton J observed the underlying principle ‘depends on special knowledge or influence over customers acquired in the course of employment: ordinarily, the employee of one subsidiary will not acquire such knowledge or influence in respect of clients of others, though a senior employee of the holding company might.’[90] Henry Leetham & Son v Johnston-White[91] was amongst the authorities cited by Brereton J.[92] It was an example where the principal company and five subsidiaries sued to enforce a restraint and it was held that it was excessive and void, and regard could only be had to the business of the employer company.
[88]Perpetual Limited v Maglis, footnote 17.
[89]Koops, [78].
[90]Ibid, [78].
[91][1907] 1 Ch 322.
[92]Koops, [74].
Prima facie case - enforceability
Perpetual says that the decision does not consider whether the course of conduct engaged in by Mr Maglis constituted an impermissible ‘dealing’ per cl 5.1 of the non-solicitation clause. To recall, the prohibition in that clause includes ‘deal with any Client’. Perpetual says there is strong evidence of dealing here. They say this is clear from the defendants’ solicitors’ 14 March 2025 letter.[93] In particular, that it shows the defendants received approaches from clients, instructed solicitors to draft letters to the clients giving detailed instructions on how the client might leave Perpetual to become a client of the defendant, and including a draft letter to Perpetual asking for it to permit the client to be serviced by the defendant, and sent letters to clients. Merely sending out the letters to clients is dealing with them. By deploying the letters, the defendants must have appreciated Perpetual would have to action them regardless of any restraint. Perpetual operates in an environment where they are governed by the Financial Planners and Advisers Code of Ethics 2019 (‘the Code’). Where a client seeks Perpetual’s consent to transfer their portfolios to another advisor, Perpetual has an obligation to action the request. The sole purpose of the letters was to obtain the business of that client for the competing business, Ord Minnett.
[93]Exhibit ‘ARGB-1’ to the Baker affidavit in Epplett, 251.
Consideration
The defendants’ solicitors’ 14 March 2025 letter attached the pro-forma letter to clients that the defendants had sent to clients in responses to approaches to them. The letter states that the defendants have not approached clients, but they have been approached by numerous clients. It also included the pro-forma letter from clients to Perpetual.
The defendants say that the prima facie case is weaker here. There is no evidence of any onboarding. The submission of dealing by sending out the letters would have been rejected by the Chief Justice whose conclusion on this issue rested upon ‘all of the evidence’ broadly described at [39].
Samples of both template letters were in evidence before the Chief Justice.[94] So too the response from Perpetual. The Chief Justice held that a number of clients sent letters to Perpetual.[95] The Chief Justice referred to Perpetual’s evidence about adherence to the Code.[96] The Chief Justice held that Mr Maglis had not ‘crossed the line’ in terms of his engagement with the clients by sending the template letter.
[94]Perpetual Limited v Maglis, [35]-[37].
[95]Ibid, [37].
[96]Ibid, [38].
The Chief Justice categorised Mr Maglis’ conduct as ‘accepting an approach’ rather than dealing, and did not make an express finding about dealing. I accept that the exchange of letters with clients could be construed as ‘dealing with the clients’. Regardless of whether the conduct is regarded as ‘accepting an approach’ or ‘dealing’, the ultimate outcome is the same. There is a prima facie case on enforceability but as explained by the Chief Justice it is weak. There is force in the defendants’ submission that the case here is even weaker because there is no evidence of ‘onboarding’ clients.
Overall, taking into account the findings on both validity and enforceability I conclude there are weaknesses in the prima facie case.
Balance of convenience
Perpetual says the following.
Firstly, no significance should be placed on the 22 clients who gave evidence in Perpetual Limited v Maglis that they no longer want Perpetual to handle their financial affairs. Here, such clients could be excluded from the scope of the interlocutory orders.
Secondly, of the 247 clients managed collectively by the defendants, there are 219 who have not yet sought Perpetual’s consent to transfer to Ord Minnett. In contrast, 22 of Mr Maglis’ 57 clients made a request to transfer. There remains a significant risk for Perpetual if the remaining clients are dealt with in breach of the restraint.
Thirdly, the willingness of clients to be served by the defendants should not be weighed in the defendants’ favour. Rather, it should be weighed in favour of Perpetual because it shows how damaging a breach of the non-solicitation clause can be.
Fourthly, that clients can terminate their relationship with Perpetual at will should not weigh in the balance of convenience. It is a factor which makes the restraint necessary and justifiable. Although the restraint would restrict clients’ freedom of choice, that is the result of every non-solicitation clause. Moreover, there is no evidence that any client will be worse off financially by not being able to deal with the defendants.
Fifthly, the defendants do not claim they would suffer loss. Indeed, Ord Minnett has indicated it wants them to comply with their obligations to Perpetual. If there is a prima facie case of breach, that weighs heavily against them on the balance of convenience. This issue was not covered in the decision.
Sixthly, there is prejudice to Perpetual in the form of the knock-on effect of a client leaving and the impossibility of quantifying loss and damage. This issue was not covered in the decision.
Seventh, Perpetual has a prima facie case and that must be taken into account in the balance of convenience.
Consideration
As described above, the Chief Justice considered the prima facie case when assessing the balance of convenience. I do too.
There is no identifiable prejudice to the defendants in granting the injunction. There was no suggestion that their employment with Ord Minnett would be jeopardised. Indeed, Ord Minnett’s position is that the defendants should comply with their contractual obligations.
I accept that here most clients have not transferred to Ord Minnett and there is the potential that they will. I understand that if the clients request to be transferred, then Perpetual will transfer them as a consequence of the Code.[97] Once transferred, the usual practice of Perpetual is to ‘turn off’ advice fees.[98] There was evidence before the Court that the loss to Perpetual if the remaining clients departed would be significant. I take the loss of clients into account as potential prejudice to Perpetual. However, the Code is for the benefit of clients. This leads to the next factor.
[97]Baker affidavit in Epplett, [102]-[103].
[98]Ibid, [100]
There is significant factor to be weighed. As discussed above, the Chief Justice held that it would be a matter of serious concern to make an order to restrict the choice of clients in the circumstances here. Moreover, such a restraint may be unreasonable in the public interest. Perpetual’s suggestion that the clients who have already expressed a wish to transfer could be excluded from the injunction does not meet this concern. The majority of clients have not transferred. These clients would have their choice to transfer to Ord Minnett restricted. I reject the submission that it is necessary for the defendants to establish that clients would be prejudiced by monetary loss. The public interest issue is the clients’ choice of service provider. I gratefully adopt the Chief Justice’s analysis of this factor.
I accept that whether damages are an adequate remedy is a relevant factor. I accept that it may be difficult to quantify damages.[99] In another context, but equally apt here, Brereton J stated in Isaac v Dargan Financial Pty Ltd,[100] ‘a comparatively mild solicitation may deprive… of valuable business’.[101] Mr Baker says there will be serious difficulties in assessing the loss and damage suffered by Perpetual: uncertainty as to the period of time the clients would have stayed with Perpetual if there had been no breach, generational loss (if parents transfer, they may lose children as potential clients) and loss of referral base that existing clients provide.[102] I accept clients may influence another. It will be a question for trial as to whether any such damage is remote or not. Issues of causation may cause difficulties in calculating damages. Despite these difficulties, this is not a case where that will be insurmountable. The assessment will be assisted by the nature of the services provided. The fees generated by clients are readily ascertainable and indeed have been produced. The clients themselves are readily identifiable. Expert advice and evidence could assist Perpetual with the calculation of loss. This is not a case where the difficulties in calculating loss are such that damages are not an adequate remedy. I am not satisfied that Perpetual will suffer irreparable harm if the injunction is not granted.
[99]Emeco International Pty Ltd v O’Shea [2012] WASC 282, [21].
[100][2018] NSWCA 163 (‘Isaac’).
[101]Isaac, [125].
[102]Baker affidavit in Epplett, [112].
The defendants submit that the balance of convenience weighs even more strongly here as the plaintiffs have not proffered any undertaking as to damages. I reject that submission. Perpetual’s application was made by summons filed on 31 March 2025. The orders are sought upon the plaintiffs giving the usual undertaking as to damages.
The balance of convenience weighs against granting the injunction. The prima facie case has weakness. As the Chief Justice stated, the interests of third parties (clients) will be affected by making an order inconsistent with the public interest. The prejudice to Perpetual in refusing the injunction and the difficulties in assessing damages do not outweigh these factors.
Conclusion
The lower risk of injustice is not to grant the injunction. Perpetual’s prima facie case has weaknesses, and the balance of convenience weighs against granting an injunction.
SCHEDULE OF PARTIES
| 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 | First Plaintiff |
| PERPETUAL TRUSTEE COMPANY LIMITED 000 001 007 | Second Plaintiff |
| - v - | |
| ANDREW WILLIAM RICHARD EPPLETT | Defendant |
| MARK HEFFERNAN | Defendant |
| DANIEL JOSEPH SWALLOW | Defendant |
| OSCAR JOHN LLOYD HOWARD | Defendant |
| MALISSA TOBIAS | Defendant |
| SHIVA RAJ VEMULA | Defendant |
0
5
0