Allied Express Transport Pty Ltd v Mears [2010] NSWSC 1112

Allied Express Transport Pty Ltd v Mears [2010] NSWSC 1112

Although the plaintiff had strong prospects of showing that a non-recruitment restraint formed part of the defendant's contract and was enforceable, the evidence showed only a prima facie breach in relation to one employee, Mr Gutierrez, whose own initiative substantially began the contact, and provided only faint grounds for apprehending future breaches. The plaintiff therefore did not have a sufficiently strong prima facie case to warrant an interlocutory injunction.

Jurisdiction
Australia
Judgment Date
17 September 2010
Procedural Posture
Contract; Restraint of Trade / Application for Interlocutory Injunction
Outcome
The plaintiff's application for an interlocutory injunction was dismissed with costs; the defendant's undertaking was noted and accepted.
Legal Topics
['non Recruitment Covenant' 'anti Poaching Covenant' 'interlocutory Injunction' 'soliciting Employees or Contractors' 'reasonableness of Restraint']
['contract' 'employment' 'restraint of Trade'] ['non Recruitment Covenant' 'anti Poaching Covenant' 'interlocutory Injunction' 'soliciting Employees or Contractors' 'reasonableness of Restraint']

Case Brief

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Procedural Posture

Contract; Restraint of Trade / Application for Interlocutory Injunction

Legal Issues

  1. 1 ['Whether the defendant was contractually bound by a covenant restraining him for 12 months after termination from engaging, soliciting, interfering with or endeavouring to entice away employees or contractors of the plaintiff.' 'Whether a non-recruitment or anti-poaching covenant restraining solicitation of employees or contractors is enforceable as a restraint of trade.' 'Whether the plaintiff established a sufficiently strong prima facie case of breach or apprehended future breach to justify an interlocutory injunction.']

Ratio Decidendi

Although the plaintiff had strong prospects of showing that a non-recruitment restraint formed part of the defendant's contract and was enforceable, the evidence showed only a prima facie breach in relation to one employee, Mr Gutierrez, whose own initiative substantially began the contact, and provided only faint grounds for apprehending future breaches. The plaintiff therefore did not have a sufficiently strong prima facie case to warrant an interlocutory injunction.

Court Disposition

The plaintiff's application for an interlocutory injunction was dismissed with costs; the defendant's undertaking was noted and accepted.

Orders

  • ['I note and accept the undertaking of the defendant to the court set out in para (57) of his affidavit of 7 September 2010 and direct that he produce his record of communications for inspection by the plaintiff if required to do so after 29 January 2011.' "The plaintiff's application for an interlocutory injunction...