AMP Services (NZ) Limited v Visser - [2015] NZHC 3313

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY

CIV-2015-463-175

[2015] NZHC 3313

BETWEEN
AMP SERVICES (NZ) LIMITED

Plaintiff

AND

JOHN MICHAEL VISSER

Defendant

Hearing: 18 December 2015 (Heard at AUCKLAND)

Appearances:

B Scott and J Graham for plaintiff R J Latton for defendant

Judgment:

18 December 2015

(ORAL) JUDGMENT OF LANG J

[on application for interim injunction]

AMP SERVICES (NZ) LTD v VISSER [2015] NZHC 3313 [18 December 2015]

[1] In this proceeding AMP Services (NZ) Limited (AMP) seeks an interim injunction against Mr Visser preventing him from soliciting his former clients and from operating an insurance agency in competition with AMP.

[2] AMP filed the proceeding on 16 December 2015, and initially sought the injunction on a without notice basis. I directed that the proceeding was to be served on Mr Visser forthwith and that it was to be called before me in Auckland today.

[3] Mr Latton has appeared on Mr Visser’s behalf today. He does so having only recently received instructions and in a position where he must necessarily advance his client’s arguments from the bar. I acknowledge that this is a significant handicap for both Mr Latton and Mr Visser.

[4] The proceeding has its genesis in an agreement for sale and purchase that AMP entered into with Mr Visser on 5 June 2014. Under this agreement AMP paid Mr Visser the sum of $1,149,600.00 in July 2014. Thereafter Mr Visser continued to work from AMP’s offices under an agreed arrangement pursuant to which he promoted and sold AMP products. This arrangement did not work out, and Mr Visser has tendered his resignation from that position. He has now set up another insurance agency through which he sells insurance products that I infer to be in competition with those offered by AMP.

[5] AMP obtained several benefits from the agreement for sale and purchase. The first was that it purchased Mr Visser’s existing register of clients. This provided AMP with an income stream in relation to the policies purchased by Mr Visser’s clients. In addition, AMP received the benefit of restraint of trade provisions and non-solicitation provisions.

[6] The restraint of trade provisions exist for four years and are in the following terms:
13.1Restraint of Trade – Vendor and Guarantors

As further consideration for the Purchaser agreeing to purchase the Assets from the Vendor on the terms contained in this Agreement, the Restrained Persons each undertake to the Purchaser that none of them will be paid for a period of 4 years from the Completion Date within New Zealand, except with the prior written consent of the Purchaser:

a Either directly or indirectly carry on or in any way assist or be interested in either alone or in partnership with or as manager, agent, director, trustee, financier, shareholder or employer of any

person in any business similar to the Business, including offering any Financial Advisory Services to any prospective client or new client (“Restricted Business”); or

b either directly or indirectly, or whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 3313
Decision Date: 18 December 2015

CaseChat Overview and Summary

AMP Services (NZ) Limited sought an interim injunction against John Michael Visser to prevent him from soliciting his former clients and operating an insurance agency in competition with AMP. The case was heard on 18 December 2015. The proceedings originated from an agreement for sale and purchase dated 5 June 2014, under which AMP paid Visser $1,149,600.00 and obtained benefits such as the sale of Visser's client register and non-solicitation and restraint of trade provisions. The primary legal issues were whether Visser had breached the restraint of trade and non-solicitation clauses and if AMP was entitled to an interim injunction to enforce these clauses. The court found that Visser's current business operations were in breach of the restraint of trade and non-solicitation provisions. Given the clear terms of the agreement and the potential for irreparable harm to AMP, the court decided to grant the interim injunction, effective immediately, until the hearing on 3 February 2016. The court also set a timetable for the filing and serving of documents in anticipation of the full hearing.

Orders