SGP Insurance Brokers v Marisa Rockett

[2006] NSWSC 117

CITATION:	SGP Insurance Brokers v Marisa Rockett [2006] NSWSC 117
HEARING DATE(S):	7 February 2006
JUDGMENT DATE :	7 February 2006
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	02/07/2006
DECISION:	Paragraph [27]
CATCHWORDS:	RESTRAINT OF TRADE - employee restrained from soliciting customers - application for interlocutory injunction - where employee was the point of contact for relevant customers
LEGISLATION CITED:	Restraints of Trade Act 1976 (NSW)
CASES CITED:	Hellmann Insurance Brokers v Peterson [2003] NSWSC 242
PARTIES:	SGP Insurance Brokers Marisa Rockett
FILE NUMBER(S):	SC 1262/06
COUNSEL:	Mr R Cheney (P) Mr Grusman (D1)

- 11 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 7 February 2006

1262/06 SGP Insurance Brokers v Marisa Rockett

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff SGP Insurance Brokers Pty Limited carries on business as an insurance broker at Campbelltown and, until 1 February 2006, at Bowral. From 25 May 1992 until 5 December 2005 the first defendant Marisa Rockett was employed by SGP as an account manager in its Bowral office. She is now employed by the second defendant OAMPS Insurance Brokers Ltd, a competitor of SGP, particularly in the Illawarra and Southern Highlands.

2 Ms Rockett's terms of employment with SGP were last recorded in a letter dated 31 October 2003, acceptance of which was confirmed by Ms Rockett in Memorandum of Acceptance/Confirmation, dated 30 November 2003, by which she confirmed that the terms and conditions set out in the letter accurately recorded the Agreement between SGP and her, and she continued to accept her position in accordance with those terms and conditions.

3 One of those terms and conditions was entitled Confidentiality, and provided relevantly as follows:

During your employment you will have access to information about the Company, its business and clients that is not in the public domain. This Confidential Information includes all information relating to the current or future business interests, methodologies or affairs of the Company, or any person or entity with which they deal or are concerned with, including without limitation all:
Names and details of clients, customers, suppliers and agents;
Information reasonably regarded as confidential, being information not in the public domain or known to the competitors of the Company or any related Body Corporate;
...
You undertake as a condition of employment that you will not use, divulge or communicate any Confidential Information to any person, except as required in the performance of your normal duties and for the benefit of the Company, or with the prior written consent of the Company;
...
These obligations continue both during and after termination of your employment with the Company. You acknowledge that the Company has built up Confidential Information over many years and any unauthorised release or disclosure of any Confidential Information by you would seriously damage the Company's business. You acknowledge that this term of your employment is fair and reasonable having regard to the Company's need to protect its business and Confidential Information and that any breach of the above conditions may result in disciplinary action up to and including summary dismissal.

4 The letter of agreement also contained a clause entitled “Restraint on the Post-Employment Activities", which provided:

It is a condition of employment that you execute the enclosed Restraint Agreement concerning your post-employment activities.

5 That Restraint Agreement was executed by Ms Rockett as employee on 30 November 2003, and by Mr Murphy on behalf of SGP as employer on 7 November 2003. By it, the employee relevantly agreed as follows:

The Employee acknowledges that in view of her position with the Company, she is likely to obtain during her employment confidential information concerning processes and clients. The Employee undertakes that during her Employment and for a period of eighteen (18) months, twelve (12) months or six (6) months after termination of this Agreement, she will not, without prior written consent of the Company either on her own behalf or the behalf of any other person, company or entity, directly or indirectly.
(a) solicit or endeavour to solicit away from the Company ...any client with whom the Employee had business dealings in the eighteen (18) months before her employment was terminated;
...
The Employee agrees that the restraints imposed by clauses 1 and 2 shall be construed as separate restraints combining each period with each resulting restraint being severable and that the restraints are reasonable to protect the interests of the Employer.

6 The portfolio of SGP clients at Bowral includes some 370 clients and produced annual remuneration to SGP of about $270,000. SGP’s client list for the Bowral portfolio records marisar, which I take to be the computer code reference for Ms Rockett, as the “Servicer” in respect of each of the 370 Bowral clients.

7 In about September 2005 SGP commenced negotiations for the sale of its Bowral portfolio. Although the initial sale did not proceed, on 24 January 2006 SGP sold its Bowral portfolio to Macey Insurance Brokers Pty Limited. Under the Acquisition Deed, the completion date for that sale was 1 February 2006. The price is calculated according to a formula which depends on the revenue achieved by the business in the 12 month period following the sale, and has the effect that any loss of clientele in that period causes the reduction of the purchase price to the extent that for each $1,000 of lost revenue the sale price reduces by $1,200.

8 While the initial proposed sale was under consideration and being negotiated, SGP, by letter dated 5 December 2005, informed Ms Rockett of the proposed sale and that she would thereupon be made redundant, but that the proposed buyer was happy to continue with her employment, and asserted that as employment had been arranged with the proposed new owner, no redundancy payment would be made. It continued:

This letter is intended to give 3 months notice of sale resulting in termination of your employment. Your employment continues with us until the date of sale. As this may fall short of the 3 month notice required in your Employment Agreement, we will pay you the difference in lieu.
...
We look forward to working with you to ensure a smooth transfer thus ensuring a bright future for you and your new employer.

9 On 6 December 2005, Ms Rockett replied that she would not take up employment with the proposed new owner. SGP then responded by letter dated 7 December, relevantly in the following terms:

This letter is to confirm that your employment has been terminated and you are no longer employed by Wingecarribee Insurance Brokers.
You need not and should not attend the office any more and should not have any further dealings with clients or any other people in within the industry.
...
Arrangements need to be made for you to return the various items and to provide satisfaction of compliance with the requirement for deletion of confidential information.
...
We look forward to hearing from you to make arrangements for the return of all property relating to the business of the Company, provision of compliance with the requirement of deletion of confidential information. You are to sign a Statutory Declaration to this effect which will then enable payment of your termination and entitlements.

10 On 13 December 2005, Ms Rockett made a Statutory Declaration by which she declared that she had returned to SGP all property, documents and items of or relating to the business of the company in her possession or control, including but not limited to equipment, papers, computers, information, records and documents in whatever form relating in any way to the company or its clients. On the same day, SGP, having previously notified ASIC of concerns that Ms Rockett had retained company documentation after the termination of her employment, wrote again to ASIC advising that it had received the Statutory Declaration and that all outstanding documentation had been returned to its Campbelltown office.

11 It seems that on 16 January 2006 or thereabouts Ms Rockett commenced employment with OAMPS who, as I have said, directly compete with SGP.

12 On or about 23 January, Ms Rockett told another employee of SGP, Ms McGoldrick:

The clients are mine. I am going to have as many as possible sign letters of appointment appointing me as their new broker.

and

Bruce McCluskey, the OAMPS Manager at Wollongong has encouraged me to go for my life and sign up as many SGP clients as possible. I have not been given a book of the clients by OAMPS so I’m totally dependent on poaching clients.

13 From about 24 January 2006, it became apparent to SGP that some of its Bowral clients were, at the instance of Ms Rockett, engaging OAMPS as their brokers in place of SGP. This became apparent in particular from eight letters of engagement, on which the client's name and address were filled out in handwriting which has been identified as that of Ms Rockett, notifying the addressee that the client had engaged the firm of OAMPS to act as their brokers. Those letters of engagement were typically forwarded to an insurer, under a facsimile cover sheet on OAMPS letterhead, signed by Ms Rockett, who described herself as an account executive and employee adviser.

14 On 2 February 2006, SGP approached the Court for ex parte relief, and obtained leave to file a summons returnable on 6 February 2006. It seems that the summons was served on 2 February.

15 When the matter was called on 6 February, Mr Gruzman, of Counsel, initially appeared only for the second defendant, and there was no appearance for Ms Rockett, but ultimately Mr Gruzman announced his appearance for Ms Rockett also, but limited to the proceedings that day. No evidence has been put before the Court by Ms Rockett. OAMPS has indicated that if an injunction is granted against Ms Rockett, then it will consent to certain relief against it on terms which have been agreed between the parties.

16 The evidence to which I have referred establishes, particularly in the absence of any to the contrary, that there is a seriously arguable case that Ms Rockett is soliciting or attempting to solicit existing customers of SGP in its Bowral portfolio. Although Mr Gruzman has submitted that there is no evidence that the customers solicited are customers with whom Ms Rockett has dealt with in the 18 months before her employment came to an end, I take into account the cyclical annual nature of insurance business and the circumstance that it is, I think, inevitable that any current client would have renewed insurance within the last 12 months. It is at least seriously arguable that the customers whom Ms Rockett has attempted to solicit are customers with whom she had dealings within the last 18 months. The circumstance that she has been able to provide the names and addresses of customers in the new Letters of Engagement, and also to identify the insurers with whom they have policies, raises a case that she has in her possession information relating to those customers and their insurances which enables her to do that. On an application such as the present I am all the readier to infer that she has retained information in her possession, notwithstanding her earlier statutory declaration, when no evidence to the contrary has been adduced.

17 I am, therefore, satisfied that there is a seriously arguable case that Ms Rockett has and, unless restrained, will continue to, solicit or endeavour to solicit away from SGP clients with whom she has had business dealings in the 18 months before her employment was terminated, in contravention of the restraint to which I have referred; and also that she has retained, in her possession, information in some form relating to the names and details of clients, customers and suppliers in contravention of her obligations under the confidentiality provision to which I have referred.

18 A question arises, however, as to whether the restraint would survive the test of reasonableness in the light of the public policy against restraint of trade. Because of the Restraints of Trade Act 1976 (NSW), in this State one starts, not from the position of considering at the outset the validity of the restraint upon its proper construction in the abstract, but by asking whether the restraint in its application to the particular breach sought to be restrained is excessive.

19 During a contract of employment, an employee is not entitled to solicit the employer’s customers. After termination of employment, however, in the absence of a covenant, an employee is at liberty to solicit the customers of his or her former employer. But the law recognises that an employer has a legitimate interest in preserving customer connection, which it is entitled to protect by taking a covenant so long as that covenant is not more than is reasonably necessary to protect the employer’s interests. In particular, the employer is entitled to take a covenant sufficient to enable it to find a replacement employee and to provide that replacement employee a reasonable opportunity to establish a position, reputation and connection with customers in place of that which the departing employee occupied.

20 It is relevant in this case that so far as the evidence goes, Ms Rockett appears to have been, in respect of the Bowral portfolio, the human face of the employer: it was she who represented the employer in its dealings with the Bowral portfolio clients. It is also relevant that while there are many aspects of the Restraint Agreement which might ultimately be found to be excessive, that part which is sought to be enforced at this stage is limited to dealings with persons with whom Ms Rockett dealt in the last 18 months. In other words, it prevents only dealings with those customers of SGP with whom the employee was a point of contact in the last 18 months. The evidence suggests that she dealt with all the Bowral portfolio. As Campbell J said in Hellmann Insurance Brokers v Peterson [2003] NSWSC 242, at [22]:

The very fact that insurance broking is an industry where there is a relationship of trust and confidence between the Broker who handles an account and the client is something which means an employer who seeks to buy the goodwill of the business has a particular vulnerability to employees who depart.

21 Similarly, an employer who sells the business upon terms that the price will be dependent upon future business is vulnerable to employees who depart.

22 I have already referred to the annual cyclical nature of insurance business. Typically, a customer will deal with an insurance broker once a year when it is time to renew insurances. It suffices to say, for present purposes, on that basis that I think it distinctly arguable that, in its application to the breaches presently sought to be restrained, a covenant would be reasonable for a period of up to 12 months, against solicitation of customers with whom she dealt in the last 18 months following departure.

23 Mr Gruzman has argued that damages would, in any event, be a sufficient remedy, particularly as SGP is no longer conducting a business at Bowral. Although it is true, as Mr Gruzman points out, that at this stage the damages are relatively small and quantifiable, the mere fact that damages might be quantifiable does not mean that they are a sufficient remedy, and the mere fact at this stage that they are small does not mean that they will remain so if Ms Rockett continues to solicit clients of SGP indefinitely. Indeed, if she succeeds in soliciting as many clients as she can, the selling price for the portfolio might well be reduced to practically nothing, and there is nothing to show that Ms Rockett would have the capacity to pay the potentially large damages which might then eventuate.

24 As SGP has sold an ongoing business so far as the Bowral portfolio is concerned, preservation of that business is consistent with its obligations to convey to the purchaser a viable business and not to derogate from what has been conveyed, and that is a further reason which suggests that damages are not a sufficient remedy. But more important than all of these is that what is sought is an injunction to restrain a breach of a negative contractual stipulation, and the policy of the Court in that context is generally to hold parties to their bargain, where it is valid and enforceable.

25 I am therefore not satisfied that damages would be a sufficient remedy, at least on an application of this type, whatever might be the outcome of the final hearing.

26 So far as the balance of convenience is concerned, on the serious question to be tried which I have found, at least so far as the contravention of the restraint is concerned, the plaintiff's case is, at first sight, a relatively strong one. Ms Rockett has adduced no evidence of hardship. There is - indirectly, by secondhand hearsay - a suggestion that she has not been provided a portfolio of clients by her new employer, but there is no evidence that she would not retain her job, and she remains free to solicit customers from anywhere she likes, save for the 370 from the Bowral portfolio list of SGP. On the other hand, if an injunction is not granted, there is a realistic prospect that the price payable to SGP on the sale will be further eroded and, indeed, potentially to a point that the loss would exceed Ms Rockett's capacity to satisfy an award of damages.

27 Upon the plaintiff by its counsel giving the usual undertaking as to damages, I order:

(1) That until further order the first defendant be restrained from, by herself, her servants and agents, soliciting or endeavouring to solicit away from the plaintiff any client of the plaintiff identified in the Bowral client list referred to in paragraph 14 of the affidavit of Anthony Paul Murphy, sworn 1 February 2006, and exhibited at pages 21 - 29 of exhibit APM thereto.

(2) That until further order the first defendant deliver up to the plaintiff at its registered office by 5pm on 9 February 2006 all property, documents, and items of or relating to SGP which are in her possession or control including papers, information, records, documents, and other information in whatever form relating in any way to SGP or its clients which contain names and details of clients, customers and/or suppliers.

(3) That costs of this application be the plaintiff's costs in the proceedings.

(4) I stand the proceedings over to 9.30pm on Friday 10 February 2006 before the Registrar.

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