Premprop Sales Neutral Bay Pty Ltd atf Neutral Bay Sales Unit Trust t/a Belle Property Neutral Bay v Davies

[2025] NSWSC 725

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Premprop Sales Neutral Bay Pty Ltd atf Neutral Bay Sales Unit Trust t/a Belle Property Neutral Bay v Davies [2025] NSWSC 725

Hearing dates:

4 July 2025

Date of orders:

8 July 2025

Decision date:

08 July 2025

Jurisdiction:

Equity

Before:

Richmond J

Decision:

See [47]

Catchwords:

COMMERCE – Restraint of trade – Interlocutory relief – Whether orders should be made for an interlocutory injunction – Whether there is a serious question to be tried – Whether the balance of convenience favours the granting of interlocutory relief

Legislation Cited:

Restraints of Trade Act 1976 (NSW)

Cases Cited:

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618

Emeco International Pty Ltd v O’Shea [2012] WASC 282

HiTech Group Australia Ltd v Riachi [2021] NSWSC 1212

Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] NSWCA 111

Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343; [2018] NSWCA 163

JMB (NSW) Pty Ltd trading as McGrath Central Coast v West [2020] NSWSC 1380

John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995

Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533

KPW Law Pty Ltd v Patel [2023] NSWSC 617

Lindner v Murdock’s Garage (1950) 83 CLR 628; [1950] HCA 48

Optus Networks Pty Ltd v Telstra Corporation Limited [2010] FCAFC 21

Riteway Express Pty Ltd v Clayton (1987) 10 NSWLR 238

SAI Global Property Division Pty Ltd v Jones [2018] NSWSC 438; 277 IR 335

Shire Real Estate Pty Ltd v Kersten [2021] NSWSC 1255

Smith v Ryngiel [1988] 1 Qd R 179

Tullett Prebon(Australia) Pty Ltd v Purcell [2008] NSWSC 852; 175 IR 414

Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317

Category:

Principal judgment

Parties:

Premprop Sales Neutral Bay Pty Ltd (ACN 142 502 850) ATF Neutral Bay Sales Unit Trust trading as Belle Property Neutral Bay (Plaintiff)
Christopher Russell Davies (Defendant)

Representation:

Counsel:
R Rasmussen (Plaintiff)
T Castle SC with S Erian (Defendant)

Solicitors:
Jemmeson Fisher (Plaintiff)
Sheller Legal (Defendant)

File Number(s):

2025/226600

Publication restriction:

Nil

JUDGMENT – REVISED EX TEMPORE

1. Before the Court is an application by the plaintiff for interlocutory relief against the defendant arising out of the termination of the defendant’s employment with the plaintiff.

2. The plaintiff, Premprop Sales Neutral Bay Pty Ltd, is a real estate agency trading as Belle Property Neutral Bay which operates a real estate franchise across Sydney’s lower North Shore specialising in residential property sales, property management and leasing. It has offices in Neutral Bay, Crows Nest and Cammeray. In the course of its business, the plaintiff keeps an internal database, called the customer relationship management system (CRM), that records information about properties and property owners, including information obtained by the plaintiff’s employees from customers of the plaintiff as well as persons who make enquiries of the plaintiff or attend open house inspections. The information stored in the CRM includes information about vendors, potential purchasers (including those attending open house inspections), property information (including appraisals, photographs, agency contracts, sale contracts, floorplans), and marketing and communication templates (eg. newsletters), sale statistics and commission structures. The CRM database is protected by a unique login name and login password for the employees given access to it.

3. The defendant was, until 2 June 2025, a sales agent employed by the plaintiff. He commenced employment with the plaintiff in 2010 as a leasing agent and in 2020 moved into the role of real estate agent, with responsibilities that included generating leads on potential sales, conducting appraisals of properties, preparing properties for sale, managing buyers and conducting open house inspections and auctions. When he entered into this role of real estate agent he signed a new employment agreement dated 26 October 2020 (employment agreement). In the course of his employment, the defendant had access to the CRM database. The employment agreement includes a comprehensive post-employment restraint of trade (cl 18) and restrictions on use of the plaintiff’s confidential information (cl 13).

4. On 2 June 2025, the defendant resigned from his employment with the plaintiff and shortly afterwards commenced employment with a competing agency known as Ray White Lower North Shore which has offices at Mosman, Cammeray, Crows Nest and Willoughby and services an area within the restraint area to which the restraints in clause 18 of the employment agreement applies. Prior to his resignation, the defendant downloaded material from the CRM database. He accepts that this material should be destroyed or returned to the plaintiff and that is a matter the subject of proposed undertakings referred to below.

5. On 13 June 2025 the plaintiff commenced these proceedings on an urgent basis before Williams J, as Equity Duty Judge, and obtained orders for short service and in addition orders for interlocutory relief reflecting paragraphs 29, 30, 31, 33 and 34 of the summons which have been continued by consent and without admissions until today. This interlocutory relief comprised orders 8-11, 13 and 14 made by Williams J on 13 June 2025.

6. The issue at the interlocutory hearing on 4 July 2025 was whether orders 8-11, 13 and 14 made by Williams J on 13 June 2025 should continue until final hearing. The plaintiff sought the following orders in place of orders 8-11 and 13 made by Williams J on 13 June 2025:

Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages, until further order of the Court or the final determination of the proceedings, the defendant be restrained from:

1.   (a)    Deleting or causing to be deleted any Confidential Information in compiled downloaded lists identified in the Exhibit MS-02 to the affidavit of Matthew Smythe sworn 13 June 2025 stored on any business and or personal computer or electronic data storage device, including telephones, iPads, electronic tablets (and such like), and including any external storage device such as RAID arrays, Network Access Storage Devices, USB thumb drives, hard disks, CDs, DVDs and the like, in their possession, custody or control, and

(b)    Taking any step which is likely to impede the recovery or inspection of any such data, including selling, swapping or trading in or disposing of any such device as referred to in (a) above, for whatever reason;

2.   Soliciting, attempting to solicit or accepting any instructions to provide real estate agency services in respect of any Client, as defined in 18.3(b) of the employment agreement dated 26 October 2020, or property contained in:

(a)   Confidential Information in compiled downloaded lists identified in the Exhibit MS-02 to the affidavit of Matthew Smythe sworn 13 June 2025; and

(b)   Property owners within the Restraint Radius defined by the suburb and postcodes 2065 (Wollstonecraft), 2062 (Cammeray), 2065 (Crows Nest, St Leonards and Naremburn) (meaning the property is located in the Restraint Radius).

3.   Whether by himself or through his servant/s or agent/s, at any time retain, copy, transmit, remove, exploit, distribute or otherwise use or deal with any of the Plaintiff’s Confidential Information in compiled downloaded lists identified in the Exhibit MS-02 to the affidavit of Matthew Smythe sworn 13 June 2025.

4.   Whether by himself or through his servant/s or agent/s, at any time disclose any of the Plaintiff’s Confidential Information in compiled downloaded lists identified in the Exhibit MS-02 to the affidavit of Matthew Smythe sworn 13 June 2025 to any other person or entity.

5.   (a)    Deleting or causing to be deleted any of the Plaintiff’s Confidential Information in compiled downloaded lists identified in the Exhibit MS-02 to the affidavit of Matthew Smythe sworn 13 June 2025 stored on any personal computer or electronic data storage device, including any external storage device, in their possession, custody or control, or in the possession, custody or control of the Competitor who trades as Ray White Lower North Shore; or

(b)    Taking any step to be taken which is likely to impede the recovery of any such data.

6.   That the defendant deliver up to the plaintiff’s solicitor’s office no later than 5pm Monday, 7 July 2025 the Confidential Information of the plaintiff that he has retained in his possession.

7. These proposed orders fall into 2 categories. First, proposed order 2 is a restraint on competition with the plaintiff. It appears to be narrower than the corresponding order 9 made on 13 June 2025, in that paragraph (b) of order 9 applied to ‘property owners within the Restraint Radius (meaning that the property is located in the Restraint Radius)’, whereas proposed order 2 above is limited to the suburbs in the three postcodes mentioned. I note that ‘Restraint Radius’ is not defined in the orders made on 13 June 2025 or in the employment agreement, and it appears to be intended as a reference to the areas identified in the definition of ‘Competitor’ in cl 18.3(c) of the employment agreement by reference to a radius from the plaintiff’s office from which the defendant worked.

8. Secondly, the remaining orders deal with the plaintiff’s confidential information. Although not defined in the proposed orders, I proceed on the basis that the expression ‘Confidential Information’ is to have the same meaning as in the employment agreement. I note that proposed order 5 is in substance a repeat of proposed order 1.

9. The plaintiff also seeks the continuation of order 14 made by Williams J on 13 June 2025 which is as follows:

14.    An Order that up to the final determination of these proceedings, or until further order, the Defendant keep lists and accounts, of all real estate market appraisals, sales, and new managements involving the Defendant.

10. The defendant opposes the making of the proposed orders at [6] above and supported this by offering undertakings in the following form:

The defendant undertakes, without admission:

1.   not to accept instructions to enter or to cause the defendant’s employer to enter into an agency agreement (as that term is defined in s.55 of the Property and Stock Agents Act 2005 (NSW) (Agency Agreement) with any individual for the sale or lease of any property (Property) if that individual had entered into an Agency Agreement in respect of that Property with the plaintiff between 1 January 2025* and 2 June 2025 (inclusive), with such undertaking to expire on 1 April 2026;**

2.   to return to the plaintiff, on or before 5pm on 8 July 2025, each of the printed reports in his possession, which are referred to at [54], [55], [58], [59] of the Affidavit of Christopher Russell Davies dated 30 June 2025, which is subject to a certificate issued under s 128A of the Evidence Act 1995 (NSW) (Privilege Affidavit);

3.   to delete from his mobile phone, on or before 5pm on 8 July 2025, each of electronic reports which are referred to at [38], [39], [40], [46], [47], [48], [50], [51] and [52] of the Privilege Affidavit;

4.   by no later than 5pm on 8 July 2025 to make an affidavit that (a) confirms his compliance with the undertakings in paragraphs 2 and 3 above, and (b) that he no longer has in his possession, custody or power any document or copy of the information in any of the printed reports referred to in paragraph 2 or the electronic reports in paragraph 3;

5.   following compliance with the undertaking in paragraph 4, to submit his mobile phone and his personal computer to any reasonable search on or before 8 August 2025* undertaken by a forensic expert from Korda Mentha, or some other independent third party agreed between the plaintiff and the defendant, and undertaken at the request and cost of the plaintiff, for the purpose of ensuring that the defendant is not in possession of any information that may have been downloaded from the plaintiff’s CRM system.

Notes:

* The defendant will agree to any other date that the Court may deem necessary to have placed in substitution for the dates proposed in these draft undertakings.

** The date of 1 April 2026 is 9 months from the date of the defendant’s resignation.

11. The evidence for the plaintiff on the interlocutory application comprised an affidavit of Matthew Smythe, a director of the plaintiff, which included a confidential exhibit containing records printed and downloaded from the CRM by the defendant, and affidavits of Ms Michelle Alchian and Mr Christiano Percuoco who are both employees of the plaintiff. The evidence for the defendant comprised two affidavits affirmed by him.

12. At the interlocutory hearing, most emphasis was placed on proposed order 2, and I will deal with that first before turning to the remaining orders concerning confidential information.

Restraint on solicitation - proposed order 2

Relevant principles

13. In order to be entitled to the interlocutory relief sought, the plaintiff bears the onus of establishing that: (a) there is a serious question to be tried for final relief; (b) that the balance of convenience favours the grant of an injunction on an interlocutory basis, and (c) there are no discretionary factors tending against the grant of relief.

14. In a restraint of trade case, whether there is a serious question to be tried for final relief depends on whether there is a prima facie case (in the sense referred to in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622; [1968] HCA 1) that: (1) there is a valid contractual restraint; (2) there is a breach or apprehended breach of it; and, (3) the Court would, as a matter of discretion, grant injunctive relief in respect of that breach: John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995 at [5].

15. The onus is on the plaintiff to show that the restraint goes no further than is reasonably necessary to protect the plaintiff’s legitimate interests. The validity and reasonableness of the restraint is to be determined at the time it is entered into (in this case, 26 October 2020), but when exercising its discretion to grant and fashion relief, the Court considers matters as at the date of the hearing which are relevant to the discretion to withhold relief: Birt at [46].

16. The effect of s 4(1) of the Restraints of Trade Act 1976 (NSW) (Act) is that in New South Wales a restraint is valid to the extent to which it is not against public policy, even if not in severable terms. The Court must determine first, whether the alleged breach (independently of public policy considerations) does or will infringe the terms of the restraint properly construed and, second, whether the restraint in its application to that breach is contrary to public policy. A restraint of trade is not contrary to public policy if it is reasonable as between the parties and not unreasonable in the public interest. Whether a restraint is reasonable as between the parties turns on whether the covenantee has a legitimate interest and whether the restraint goes no further than reasonably necessary for the legitimate protection of that interest. If the restraint as it applies to the alleged breach is not contrary to public policy, the restraint is valid in its application to the alleged breach unless the Court makes an order under s 4(3) of the Act: Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343 at 355; [2018] NSWCA 163 at [61]–[64]; Tullett Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 852; 175 IR 414 at [47]. Section 4(3) enables a reading down of the restraint in the abstract, on the application of the promisor and looking to the future: Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] NSWCA 111 at [176].

17. The legitimate interests which are capable of protection by a restraint of trade include the employer’s goodwill (including customer connection) and confidential information, but an employer has no legitimate interest in merely preventing competition from a former employee: Tullett at [47]. In the present case, the interests relied on by the plaintiff to support cl 18.2(a) are goodwill and confidential information.

Serious question to be tried

18. At the final hearing the plaintiff will seek injunctive relief, damages, equitable compensation and an account of profits. The injunctive relief includes an injunction against soliciting clients in broader terms than the interlocutory injunction in proposed order 2 and will apply up to and including 2 March 2026 (see paragraph 15 of the summons). It follows that the grant of interlocutory relief will not in a practical sense determine the dispute between the parties and consequently it is not necessary for the Court to evaluate the strength of the plaintiff’s case for final relief. However, an assessment of the strength of the plaintiff’s case will be relevant to the balance of convenience albeit on a preliminary basis reflecting that the arguments are to be weighed at a relatively high level at an interlocutory hearing: SAI Global Property Division Pty Ltd v Jones [2018] NSWSC 438; 277 IR 335 at [103] and [115].

19. In the present case, the relevant contractual restraint to support proposed order 2 is found in cl 18.2(a) of the employment contract which provides:

18.2   Without the Employer’s prior consent from the Termination Date, You are not to:

(a)   solicit, attempt to solicit, (via Social Media or otherwise), or accept any instructions to perform real estate agent services for any Client for the Restraint Period;

20. ‘Client’ is defined in cl 18.3 (b) of the employment contract to mean:

any person or entity:

(1)   to which the Employer provided services during Your employment;

(2)   to which with which the Employer had direct dealings during Your employment in relation to the provision (or proposed provision) of services by the Employer to the person or entity;

(3)   which referred business to the Employer during Your employment;

(4)   with which You had direct dealings in the course of, or in connection with, Your employment with the Employer.

21. ‘Restraint Period’ is defined as cascading periods of 9 months, 6 months, 3 months and one month respectively. The expression ‘real estate agent services’ is not defined.

22. The final relief seeks an injunction which mirrors the terms of cl 18.2(a) for the period to 2 March 2026 (paragraph 15 of the summons). It will be necessary to determine at the final hearing whether a restraint on the defendant in conducting real estate agent services for 9 months (or the lessor periods in the definition of ‘Restraint Period’) is reasonable as between the parties and is not unreasonable in the public interest. Whether the restraint is reasonable as between the parties depends on whether the plaintiff has a legitimate protectable interest and whether the restraint is no more than reasonably necessary for the legitimate protection of that interest.

23. Insofar as the plaintiff claims protection for its goodwill, the essence of goodwill is the connection with customers. It is recognised that an employer is entitled to protect itself against the possibility of loss which may otherwise arise from the mere existence of personal relations between its customers and its former employee, on the basis that the customer connection achieved by the employee during his or her employment is an advantage accruing to the employer: Lindner v Murdock’s Garage (1950) 83 CLR 628 at 633-634, 636 per Latham CJ and 655 per Kitto J; [1950] HCA 48.

24. An immediate problem with cl 18.2 (a), and the injunctive relief sought in paragraph 15 of the summons, is that it is not restricted in terms of area. The only limitation on the scope of the restraint is the reference to the term ‘Client’ but this is not restricted by area and also will include persons with whom the defendant had no dealing during his employment (see paragraphs (1), (2) and (3)) and who are not properly regarded as customers of the plaintiff. For example, ‘Client’ would extend to persons who attend an open for inspection for a property, including a property for which one of the other real estate agents employed by the plaintiff had responsibility and with whom the defendant had no dealings throughout his employment.

21. Proposed order 2 is narrower than cl 18.2(a) in that it restrains the defendant from soliciting, attempting to solicit or accepting any instructions to provide real estate services in respect of any ‘Client’ (as broadly defined in cl 18.3(b)) or any property contained in the lists identified in Mr Smythe’s confidential exhibit. The intention appears to be, through paragraph (b), to limit the properties to those in the suburbs identified by their postcodes. The confidential exhibit identifies not only properties and their owners but also persons who attended those properties when they were open for inspection to potential purchasers.

22. There are a number of difficulties with proposed order 2. First, it extends through the definition of ‘Client’ to persons with whom the defendant never had any personal dealings during his employment with the plaintiff. Hence, it operates as a restraint on him providing real estate agent services to a person who viewed a property when it was open for inspection even though that person was not a customer of the plaintiff in any real sense. For example, a neighbour who viewed a property listed by the plaintiff would be covered, and the defendant would be unable to provide real estate agency services to that person, and this will be so even if the defendant had no or only minimal interaction with that person at the time of the inspection. Those persons are not customers of the plaintiff simply because they attended an open for inspection of the property owned by a customer of the plaintiff (the prospective vendor).

23. Secondly, proposed order 2 would prevent the defendant providing real estate agency services in respect of any property in the identified suburbs even if the owner of the property is not a customer of the plaintiff. For example, if the plaintiff acted for the vendor on the sale of the property in one of the identified suburbs, he would be precluded from providing any kind of real estate agency service to the purchaser in respect of that property, even though the purchaser was not a customer of the plaintiff. A person does not become a customer of real estate agency merely because the agency acted for the vendor on the sale.

24. Thirdly, proposed order 2 seeks to restrain the defendant from dealing with hundreds, if not thousands, of ‘Clients’ (as broadly defined in cl 18.3(b)) identified in the lists in the confidential exhibit, including persons who merely attended an open for inspection of the property, and which the plaintiff requires the defendant to return to it. It is difficult to see what legitimate interest there is in restraining the defendant from dealing with such a large number of people in circumstances where he is to be denied the opportunity to retain a copy of the lists recording their names and thereby know whether he is restrained from dealing with them: cf JMB (NSW) Pty Ltd trading as McGrath Central Coast v West [2020] NSWSC 1380 at [91]-[93]. The confidential exhibit to Mr Smythe’s affidavit is subject to orders made on 13 June 2025 which preclude its disclosure to any person other than the defendant’s legal advisers and any consulting expert, which would not include the defendant.

25. In so far as protection of the plaintiff’s confidential information is relied upon in support cl 18.2(a) and proposed order 2, there is the difficulty created by the fact that the defendant was a real estate sales agent while employed by the plaintiff and did not have a managerial or strategic role: see JMB (NSW) Pty Ltd at [67]-[73]. As submitted by the defendant, much of the ‘confidential information’ contained in the confidential exhibit comprises names of properties and property owners which form part of the defendant’s ‘know how’ and not information with the necessary quality of confidence requiring protection under the equitable duty of confidence or capable of protection in a post-employment contractual restraint: Optus Networks Pty Ltd v Telstra Corporation Limited [2010] FCAFC 21 at [39]; Riteway Express Pty Ltd v Clayton (1987) 10 NSWLR 238 at 240.

26. For these reasons, while there is a serious question to be tried, in my view the plaintiff’s prima facie case for injunctive relief to enforce cl 18.2(a) of the employment agreement or the narrower form of injunction in proposed order 2 is not a strong one as each appears to go beyond what is reasonably necessary to protect the plaintiff’s goodwill or confidential information.

Balance of convenience

31. In relation to the balance of convenience, it is necessary to consider what course is best calculated to achieve justice between the parties, bearing in mind the consequences to the defendant of the grant of the injunction in support of relief which the plaintiff might not ultimately obtain and the consequences to the plaintiff of refusing the injunction in support of relief which it might ultimately be held to be entitled: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535. Relevant matters to be taken into account include whether damages are an adequate remedy; the defendant’s right to a livelihood, delay, the impact on third parties; whether the employee was warned and went into the position with ‘eyes wide open’; whether any hardship that would be visited on the defendant has come about because he or she is the author of his or her own misfortune; the strength of the case; and any undertakings to be given: HiTech Group Australia Ltd v Riachi [2021] NSWSC 1212 at [49].

32. In relation to the adequacy of damages, it is often said that damages are rarely an adequate remedy for breach of a negative contractual stipulation: Birt at [45]. In Emeco International Pty Ltd v O’Shea [2012] WASC 282 at [21], Edelman J (as his Honour then was) explained that the reason why this is so includes the difficulty of the detection of breaches of the obligation, the difficulty of establishing causation between any loss of business with customers and any actions of the ex-employee and the difficulty of the calculation of the quantum of any damage arising from loss of business. However, his Honour noted at [22] that these concerns would not always apply.

33. There are a number of cases where it is been accepted that damages for breach of a post-employment contractual restraint were an adequate remedy: see Smith v Ryngiel [1988] 1 Qd R 179 at 187–190; JMB (NSW) Pty Ltd at [95]-[96]; Shire Real Estate Pty Ltd v Kersten [2021] NSWSC 1255 at [41]-[44]; and my own decision in KPW Law Pty Ltd v Patel [2023] NSWSC 617 at [44].

34. For the defendant it was submitted that damages will be an adequate remedy if a breach of cl 18.2(a) is established at final hearing because such damages would be readily quantifiable, being the lost commission on sales made by the defendant, because of the records he is required to keep in accordance with order 14 made on 13 June 2025. I accept this submission.

35. As regards the defendant’s right to a livelihood, his evidence (on which he was not cross-examined) is that on 17 June 2025 he received a letter from Ray White advising him that he had been stood down and was not permitted to work until the current proceedings against him have been resolved. As he is no longer being paid by the plaintiff, the defendant will suffer significant financial disadvantage through the operation of proposed order 2 in that he will be unable to earn income in his area of expertise until final hearing.

36. Another important factor in the balance of convenience is that the defendant has offered an undertaking to the plaintiff and to the Court until 1 April 2026 not to enter into an agency agreement with any person who entered into an agency agreement with the plaintiff during the period from 1 January 2025 to 2 June 2025. In my view, this provides a reasonable protection for the plaintiff’s goodwill. To provide, in addition, an injunction in the terms sought appears to serve only to prevent legitimate competition, which is inconsistent with the policy of the Act: HiTech at [114]-[117]; Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 337.

37. In relation to other relevant matters, there has been no delay in bringing this application. Neither party identified any relevant impact on a third party. I accept that it can be said that the defendant went into his current position with his ‘eyes wide open’ in the sense that he was fully aware of the terms of his contract of employment but, in light of the other matters referred to above, do not consider this to be significant in the balancing exercise required.

38. In my view, when all these matters are weighed, the prejudice suffered by the plaintiff if it is ultimately determined that an interlocutory injunction should have been granted is outweighed by the prejudice which the defendant will suffer if an interlocutory injunction is wrongly granted.

39. For these reasons, I am not satisfied that the plaintiff has established that proposed order 2 should be made.

Confidential information – proposed orders 1 and 3-6

40. Proposed orders 1 and 3-6 seek to enforce the contractual restraint on misuse of the plaintiff’s confidential information in cl 13 of the employment agreement or alternatively the equitable duty of confidence.

41. I will make proposed order 1 because it will preserve the evidence relevant to the plaintiff’s claim for final relief.

42. In my view, proposed orders 3 and 4 are not necessary. The defendant has provided a detailed explanation in his affidavits of what he did with the downloaded material identified in the confidential exhibit. He was not cross-examined on this evidence and there is nothing in the evidence to suggest that his explanation is unreliable. The defendant’s proposed undertaking involved handing over the relevant material still in his possession to the plaintiff, together with the devices on which it is stored. In my view, that provides sufficient protection to the plaintiff. In addition, proposed orders 3 and 4 extend to matters such as the names of property owners which form part of the defendant’s ‘know-how’ and should not be subject to an interlocutory injunction of this kind for the reason given earlier.

43. Proposed orders 6 is not necessary as it is encompassed by proposed undertakings which the defendant has offered.

Conclusion

44. I will make proposed order 1 at [6] above but will not make the other orders sought by the plaintiff at [6] above, and will vacate orders 8-11 and 13 made on 13 June 2025. Order 14 made on 13 June 2025 is to continue until final hearing.

45. I will make the necessary orders recording the defendant’s undertakings to the Court set out at [10] above.

46. I consider that the appropriate order in relation to the costs of the interlocutory application is that they be costs in the cause and that the matter should be stood over to the Equity Registrar for directions.

47. Following discussion with counsel as to the form of the orders, the Court made the following orders:

1. Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages, until further order of the Court or the final determination of the proceedings, the defendant be restrained (except to the extent necessary to comply with his undertakings under order 5 below) from:

1. Deleting or causing to be deleted any Confidential Information in compiled downloaded lists identified in the Exhibit MS-02 to the affidavit of Matthew Smythe sworn 13 June 2025 stored on any business and or personal computer or electronic data storage device, including telephones, iPads, electronic tablets (and such like), and including any external storage device such as RAID arrays, Network Access Storage Devices, USB thumb drives, hard disks, CDs, DVDs and the like, in their possession, custody or control, and

2. Taking any step which is likely to impede the recovery or inspection of any such data, including selling, swapping or trading in or disposing of any such device as referred to in (a) above, for whatever reason.

2. Vacates orders 8 to 11 and 13 made on 13 June 2025.

3. Order 14 made on 13 June 2025 to continue until final hearing or further order of the court.

4. The plaintiff’s application for interlocutory relief is otherwise dismissed.

5. NOTES that the defendant through his senior counsel undertakes to the plaintiff and to the Court, without admission:

1. not to accept instructions to enter or to cause the defendant’s employer to enter into an agency agreement (as that term is defined in s 55 of the Property and Stock Agents Act 2005 (NSW) (Agency Agreement) with any individual for the sale or lease of any property (Property) if that individual had entered into an Agency Agreement in respect of that Property with the plaintiff between 1 January 2025 and 2 June 2025 (inclusive), with such undertaking to expire on 1 April 2026;

2. to return to the plaintiff, on or before 5pm on 9 July 2025, each of the printed reports in his possession, which are referred to at [54], [55], [58], [59] of the Affidavit of Christopher Russell Davies dated 30 June 2025, which is subject to a certificate issued under s 128A of the Evidence Act 1995 (NSW) (Privilege Affidavit);

3. to delete from his mobile phone, on or before 5pm on 9 July 2025, each of electronic reports which are referred to at [38], [39], [40], [46], [47], [48], [50], [51] and [52] of the Privilege Affidavit;

4. by no later than 5pm on 9 July 2025 to make an affidavit that (a) confirms his compliance with the undertakings in paragraphs 2 and 3 above, and (b) that he no longer has in his possession, custody or power any document or copy of the information derived from any of the printed reports referred to in paragraph 2 or the electronic reports in paragraph 3;

5. following compliance with the undertaking in paragraph 4, to submit his mobile phone and his personal computer to any reasonable search on or before 8 August 2025 undertaken by a forensic expert from Korda Mentha, or some other independent third party agreed between the plaintiff and the defendant, and undertaken at the request and cost of the plaintiff (in the first instance and subject to further order of the Court), for the purpose of ensuring that the defendant is not in possession of any information that may have been downloaded from the plaintiff’s CRM system.

6. List the matter before the Equity Registrar for directions on 22 July 2025.

7. Costs of the plaintiff’s application for interlocutory relief are costs in the cause.

8. Liberty to apply.

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Amendments

08 July 2025 - Changed font on heading.

Decision last updated: 08 July 2025