Marlov Pty Ltd v Murat Col [2009] NSWSC 501

Marlov Pty Ltd v Murat Col [2009] NSWSC 501

The first defendant did not solicit the plaintiff's customers in relation to any of the four properties relied on by the plaintiff. Clause 19.1(c) was void and unenforceable because, in the circumstances, it was a covenant against mere competition and did not protect any legitimate interest of the plaintiff in confidential information, business connection or goodwill. The plaintiff also failed to prove loss or damage, so its claims against both defendants were dismissed.

Jurisdiction
Australia
Judgment Date
05 June 2009
Procedural Posture
Equity Proceeding Concerning an Employment Agreement and Restraint of Trade / Principal Judgment After Hearing
Outcome
Plaintiff's claims against both the first defendant and the second defendant dismissed.
Legal Topics
['validity and Enforceability of Post Employment Restraints' 'solicitation of Customers' 'employment With Competing Business' 'protection of Goodwill and Customer Connection' 'restraints of Trade Act 1976']
['contract' 'employment' 'restraint of Trade' 'equity'] ['validity and Enforceability of Post Employment Restraints' 'solicitation of Customers' 'employment With Competing Business' 'protection of Goodwill and Customer Connection' 'restraints of Trade Act 1976']

Case Brief

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Procedural Posture

Equity Proceeding Concerning an Employment Agreement and Restraint of Trade / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the first defendant solicited customers or clients of the plaintiff in breach of clause 19.1(b) of the employment agreement.' "Whether the first defendant breached clause 19 by taking employment with a competing real estate agency within 7.5 kilometres of the plaintiff's office." 'Whether clause 19.1(c), restraining the first defendant from being engaged in a competing business, was valid and enforceable.' 'Whether the second defendant furthered any breach by employing the first defendant.']

Ratio Decidendi

The first defendant did not solicit the plaintiff's customers in relation to any of the four properties relied on by the plaintiff. Clause 19.1(c) was void and unenforceable because, in the circumstances, it was a covenant against mere competition and did not protect any legitimate interest of the plaintiff in confidential information, business connection or goodwill. The plaintiff also failed to prove loss or damage, so its claims against both defendants were dismissed.

Court Disposition

Plaintiff's claims against both the first defendant and the second defendant dismissed.

Orders

  • ["The plaintiff's claim that the first defendant breached clause 19.1(b) by soliciting customers is dismissed." 'The covenant in clause 19.1(c) is void and unenforceable.' "The plaintiff's claims as against both the first and the second defendant are dismissed."]