Shire Real Estate Pty Limited v Kersten [2021] NSWSC 1255

Shire Real Estate Pty Limited v Kersten [2021] NSWSC 1255

The restraining clauses, even as modified by plaintiff, were too broad and not justified on the evidence; damages would be adequate; undertakings on confidential material sufficed; balance of convenience favoured the defendants given the prejudice from loss of employment; application for injunction refused.

Source-derived case information.

Parties
Plaintiff: Shire Real Estate Pty Limited; First Defendant: Joshua Michael Kersten; Second Defendant: Alexander De Renzie Duncan; Third Defendant: Joshua Bray Den De Smuszko-Burns; Fourth Defendant: Grace Erin Nightingale; Fifth Defendant: Mona El-Torgoman; Sixth Defendant: Jason Capelo
Jurisdiction
Australia
Judgment Date
23 September 2021
Procedural Posture
Application for Interlocutory Injunctions (employment/restraint of Trade) / Interlocutory Application Orders on Injunction Application
Outcome
Interlocutory relief refused; application dismissed.
Legal Topics
Interlocutory Restraints of Trade, Employment Contracts, Reasonableness of Restraint Clauses, Confidential Information, Balance of Convenience
Employment Law Equity Contract Interlocutory Restraints of Trade Employment Contracts Reasonableness of Restraint Clauses Confidential Information Balance of Convenience

Source-derived case record

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Parties

Shire Real Estate Pty Limited

Plaintiff

Joshua Michael Kersten

First Defendant

Alexander De Renzie Duncan

Second Defendant

Joshua Bray Den De Smuszko-Burns

Third Defendant

Grace Erin Nightingale

Fourth Defendant

Mona El-Torgoman

Fifth Defendant

Jason Capelo

Sixth Defendant

Procedural Posture

Application for Interlocutory Injunctions (employment/restraint of Trade) / Interlocutory Application Orders on Injunction Application

Legal Issues

  1. 1 Whether interlocutory injunctions restraining former employees from working for a competitor should be granted
  2. 2 Whether restraint clauses in employment contracts are reasonable and enforceable in the circumstances
  3. 3 Adequacy of damages as an alternative to injunctive relief

Ratio Decidendi

The restraining clauses, even as modified by plaintiff, were too broad and not justified on the evidence; damages would be adequate; undertakings on confidential material sufficed; balance of convenience favoured the defendants given the prejudice from loss of employment; application for injunction refused.

Court Disposition

Interlocutory relief refused; application dismissed.

Orders

  • Dismiss plaintiff's application for interlocutory relief set out in prayer 23 of the summons.
  • Proceedings to continue on pleadings.