Forkserve Pty Limited v Jack & 1 Ors [2000] NSWSC 1064

Forkserve Pty Limited v Jack & 1 Ors [2000] NSWSC 1064

Leon Jack was classified as an executive officer and treated as a director for purposes of duty under the Corporations Law. The act of sending a canvassing letter to APS Chemicals, a client, before ceasing employment amounted to a breach of fiduciary duty and a breach of s232(6) of the Corporations Law. Taking the teledex book was with consent, so did not constitute a breach; the business card folder was not confidential. There was no breach established with respect to Pax Australia or use of the confidential information post-employment by reason of consent or absence of confidentiality. Any breach by Leon Jack is imputed to the second defendant, Aussie Forklift Repairs Pty Limited.

Jurisdiction
Australia
Judgment Date
17 November 2000
Procedural Posture
Equity Proceedings Concerning Breach of Fiduciary and Statutory Duties / Judgment After Trial
Outcome
Employee in breach of fiduciary duty only in respect of one established instance of client canvassing while employed.
Legal Topics
['restraint of Trade' 'breach of Fiduciary Duty' 'director/officer Duties' 'confidential Information' 'solicitation of Customers']
['equity' 'corporations Law' 'employment Law'] ['restraint of Trade' 'breach of Fiduciary Duty' 'director/officer Duties' 'confidential Information' 'solicitation of Customers']

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Procedural Posture

Equity Proceedings Concerning Breach of Fiduciary and Statutory Duties / Judgment After Trial

Legal Issues

  1. 1 ['Whether Leon Jack was a director or executive officer of the plaintiff; whether information taken (teledex book and business card folder) was confidential and its use in breach of any duty; whether Leon Jack solicited customers (APS Chemicals and Pax Australia) before cessation of employment; whether Forkserve consented to Leon Jack’s actions; whether Leon Jack breached s232 of the Corporations Law.']

Ratio Decidendi

Leon Jack was classified as an executive officer and treated as a director for purposes of duty under the Corporations Law. The act of sending a canvassing letter to APS Chemicals, a client, before ceasing employment amounted to a breach of fiduciary duty and a breach of s232(6) of the Corporations Law. Taking the teledex book was with consent, so did not constitute a breach; the business card folder was not confidential. There was no breach established with respect to Pax Australia or use of the confidential information post-employment by reason of consent or absence of confidentiality. Any breach by Leon Jack is imputed to the second defendant, Aussie Forklift Repairs Pty Limited.

Court Disposition

Employee in breach of fiduciary duty only in respect of one established instance of client canvassing while employed.

Orders

  • ['Parties to submit orders within five days giving effect to the judgment, with brief submissions on costs.']