Bromhead & Ors v Graham [2007] NSWCA 257

Bromhead & Ors v Graham [2007] NSWCA 257

The Court held that it was unnecessary for the majority to determine whether the partnership had been dissolved. Even assuming dissolution before the employment termination notice was received, dissolution of the employing partnership did not necessarily terminate or repudiate the respondent's employment contract; on the facts, the contract continued until 27 April 2007, the respondent did not accept any repudiation, and he remained bound by clause 20.3 when he contacted clients. His conduct breached the non-solicitation restraint, so damages were to be assessed, while the cross-appeal failed.

Jurisdiction
Australia
Judgment Date
21 September 2007
Procedural Posture
Appeal and Cross Appeal Concerning Partnership Dissolution, Termination of Employment, Restraint of Trade and Damages / Court of Appeal From the Supreme Court of New South Wales Decision of Gzell J
Outcome
Respondent's cross-appeal dismissed; appeal allowed only to remit the proceedings to an Associate Justice for assessment of damages; respondent ordered to pay 95 per cent of the costs of the appeal and cross-appeal.
Legal Topics
['dissolution of Partnership' 'effect of Partnership Dissolution on Employment Contract' 'employee Non Solicitation Covenant' 'repudiation and Acceptance' 'injunctive Relief' 'assessment of Damages' 'costs']
['partnership' 'employment Law' 'contract Law' 'restraint of Trade' 'equity'] ['dissolution of Partnership' 'effect of Partnership Dissolution on Employment Contract' 'employee Non Solicitation Covenant' 'repudiation and Acceptance' 'injunctive Relief' 'assessment of Damages' 'costs']

Case Brief

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Procedural Posture

Appeal and Cross Appeal Concerning Partnership Dissolution, Termination of Employment, Restraint of Trade and Damages / Court of Appeal From the Supreme Court of New South Wales Decision of Gzell J

Legal Issues

  1. 1 ["Whether the appellants' partnership was dissolved before notice terminating the respondent's employment was communicated." "Whether dissolution of the employing partnership, if it occurred, repudiated or terminated the respondent's employment contract." 'Whether the respondent accepted any repudiation of his employment contract.' 'Whether the respondent remained bound by clause 20.3 of the employment contract when he contacted clients of the Firm.' 'Whether injunctive relief or damages was the appropriate remedy and whether damages should be assessed by an Associate Justice.' "Whether the primary judge's costs order should be disturbed."]

Ratio Decidendi

The Court held that it was unnecessary for the majority to determine whether the partnership had been dissolved. Even assuming dissolution before the employment termination notice was received, dissolution of the employing partnership did not necessarily terminate or repudiate the respondent's employment contract; on the facts, the contract continued until 27 April 2007, the respondent did not accept any repudiation, and he remained bound by clause 20.3 when he contacted clients. His conduct breached the non-solicitation restraint, so damages were to be assessed, while the cross-appeal failed.

Court Disposition

Respondent's cross-appeal dismissed; appeal allowed only to remit the proceedings to an Associate Justice for assessment of damages; respondent ordered to pay 95 per cent of the costs of the appeal and cross-appeal.

Orders

  • ["Respondent's cross-appeal dismissed." 'Noting the orders made by consent on 21 August 2007, thus obviating the orders sought under para 3 of the Amended Notice of Appeal, appeal allowed to the extent only that the proceedings be remitted to an Associate Justice for assessment of the damages in accordance with the...