Tipto Pty Limited v Yuen

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Tipto Pty Limited v Yuen [2016] NSWCA 21
Hearing dates:	On the papers
Decision date:	26 February 2016
Before:	Beazley P; Emmett AJA
Decision:	Summons seeking leave to appeal dismissed with costs.
Catchwords:	PRACTICE AND PROCEDURE – leave to appeal – no question of principle
Legislation Cited:	Restraints of Trade Act 1976 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 Jardin v Metcash Ltd (2011) 285 ALR 677 Lee v New South Wales Crimes Commission [2012] NSWCA 262
Category:	Principal judgment
Parties:	Tipto Pty Limited (First Applicant) SWU Financial Planning Pty Ltd (Second Applicant) Premium China Funds Management Pty Ltd (Third Applicant) Kam Chuen Yuen (First Respondent) CoWealth Partners Pty Ltd (Second Respondent)
Representation:	Counsel: R C Gration (Applicants) J J Fernon SC; B G Curtin (Respondents)   Solicitors: WMD Law (Applicants) Harmers Workplace Lawyers (Respondents)
File Number(s):	CA 2015/361554
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2015] NSWSC 1086 Date of Decision: 7 August 2015 Before: Robb J File Number(s): 2014/223988

Judgment

1. THE COURT: This is an application for leave to appeal from the decision of Robb J in which his Honour dismissed the applicant’s claim for injunctive relief: Tipto Pty Ltd v Yuen [2015] NSWSC 1086 at [37]. The parties have consented to the application being dealt with on the papers.

2. The applicants for leave to appeal are three associated companies who engage in the provision of financial services. The first applicant (Tipto) is the trustee of a service trust that provides administrative staff to the other two companies; the second (SWU) provides financial planning services; and the third (PCFM) is a distributor of managed funds. The controlling shareholder of each applicant is Mr Simon Wu. Mr Wu is also a director of SWU and PCFM and the secretary of Tipto.

3. The first respondent, Mr Kam Chuen Yuen, was employed by Tipto under an employment agreement dated 1 July 2011 (the employment agreement). He had been employed under a series of agreements with Tipto since 2007. In his employment under these various agreements, Mr Yuen worked for PCFM, as a business development associate and for SWU, assisting with the provision of financial planning reports and other services. He devoted approximately two thirds of his time to SWU and one third to PCFM.

4. Mr Yuen, SWU and PCFM also entered into an employee confidentiality and independence statement (the confidentiality agreement) on 29 July 2013.

5. Mr Yuen gave notice of resignation on about 10 February 2014 and the last day of his employment was 28 March 2014. He subsequently commenced business on his own account through the second respondent (CoWealth Partners), a company he controls.

6. The applicants brought proceedings by which they sought wide-ranging injunctive relief against the respondents alleging that Mr Yuen had breached both the employment agreement and the confidentiality agreement. In summary, they sought orders restraining the respondents from disparaging the applicants’…