Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494

Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494

Although Hotwork Australia established serious questions to be tried as to Mr Tomkins' breach of the non-solicitation restraint and as to the validity of a restraint for at least 12 months, the balance of justice did not favour an interlocutory injunction. Hotwork Australia's delay in commencing urgent proceedings, legitimate issues for final hearing as to employment, enforceability, consideration and duration, possible hardship to third parties, and the defendants' undertaking to keep separate accounts meant the client non-solicitation injunction should be refused.

Jurisdiction
Australia
Judgment Date
07 May 2020
Procedural Posture
Equity Restraint of Trade and Employment Proceedings Seeking Injunctive Relief, Damages, Equitable Compensation and an Account of Profits / Interlocutory Application by Amended Notice of Motion for Injunction and Related Relief
Outcome
Interlocutory injunction restraining Mr Tomkins from soliciting or providing services to Hotwork Australia's clients refused; other orders made by consent and undertakings noted.
Legal Topics
['interlocutory Injunction' 'post Employment Non Solicitation Restraint' 'confidential Information Undertakings' 'former Director and Regional Manager' 'customer Connection' 'balance of Convenience' 'delay']
['equity' 'employment Law' 'restraint of Trade' 'corporations Law' 'confidential Information'] ['interlocutory Injunction' 'post Employment Non Solicitation Restraint' 'confidential Information Undertakings' 'former Director and Regional Manager' 'customer Connection' 'balance of Convenience' 'delay']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Equity Restraint of Trade and Employment Proceedings Seeking Injunctive Relief, Damages, Equitable Compensation and an Account of Profits / Interlocutory Application by Amended Notice of Motion for Injunction and Related Relief

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that Mr Tomkins breached or threatened to breach the non-solicitation restraint in the Agreement.' 'Whether there was a serious question to be tried that the non-solicitation restraint was valid and reasonable, whether for two years or a lesser period.' 'Whether Hotwork Australia had established that Mr Tomkins was its employee and that the Agreement was binding on and enforceable against him.' "Whether the balance of convenience and discretionary factors, including delay and hardship, favoured interlocutory relief restraining dealings with Hotwork Australia's clients."]

Ratio Decidendi

Although Hotwork Australia established serious questions to be tried as to Mr Tomkins' breach of the non-solicitation restraint and as to the validity of a restraint for at least 12 months, the balance of justice did not favour an interlocutory injunction. Hotwork Australia's delay in commencing urgent proceedings, legitimate issues for final hearing as to employment, enforceability, consideration and duration, possible hardship to third parties, and the defendants' undertaking to keep separate accounts meant the client non-solicitation injunction should be refused.

Court Disposition

Interlocutory injunction restraining Mr Tomkins from soliciting or providing services to Hotwork Australia's clients refused; other orders made by consent and undertakings noted.

Orders

  • ["Decline to make an order in the terms of paragraph 8(a) of the plaintiff's Amended Notice of Motion filed on 20 April 2020." 'List the proceedings in the commercial list for directions at 9.45am on 8 May 2020.' 'Make orders by consent in accordance with the short minutes of order agreed by the parties and note the...