BUSHETTS TRANSPORT LIMITED v GRAHAM ROGER LOWES AND TONY IAN LOWES HC WN CIV 2011-485-131

BUSHETTS TRANSPORT LIMITED v GRAHAM ROGER LOWES AND TONY IAN LOWES HC WN CIV 2011-485-131

On the strength of the uncontroverted and circumstantial evidence there was a strongly arguable case that the Lowes and Foot used BTL information and depot as a springboard and that CHB benefited; full prohibition on CHB trading was refused because Foot agreed to transfer her shares and cease employment with CHB...

Source-derived case information.

Citation
openlaw-bfe312f5_6efa_4766_9f64_0994811c18df.pdf
Parties
First Plaintiff: Bushetts Transport Limited; Second Plaintiff: Eastern Equities Investments Limited; First Defendant: Graham Roger Lowes; First Defendant: Tony Ian Lowes; Second Defendant: Janifrie Foot; Third Defendant: Roderick John Parsons; Fourth Defendant: CHB Transport Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 February 2011
Procedural Posture
Application for Interim Injunction (civil) / Interim Injunction Hearing (pre Trial)
Outcome
Application partly granted and partly refused (interim restraint granted on solicitation of specified clients; full prohibition on CHB trading refused subject to undertakings)
Legal Topics
Springboard Injunction, Confidential Information, Solicitation of Clients, Dishonest Assistance, Balance of Convenience, Misuse of Property, Interim Relief
Contract Law Equity Restraint of Trade Fiduciary Duties Tort (interference With Contractual Relations) Fair Trading Law Injunctive Relief Springboard Injunction +6 more

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Parties

Bushetts Transport Limited

First Plaintiff

Eastern Equities Investments Limited

Second Plaintiff

Graham Roger Lowes

First Defendant

Tony Ian Lowes

First Defendant

Janifrie Foot

Second Defendant

Roderick John Parsons

Third Defendant

CHB Transport Limited

Fourth Defendant

Procedural Posture

Application for Interim Injunction (civil) / Interim Injunction Hearing (pre Trial)

Legal Issues

  1. 1 Whether defendants misused confidential information and client lists to set up competing business
  2. 2 Whether the Lowes breached a 10-year restraint of trade and whether others (including CHB and Parsons) knowingly assisted or benefited
  3. 3 Whether damages are an inadequate remedy and an interim injunction should issue to restrain trading or solicitation by CHB and other defendants

Ratio Decidendi

On the strength of the uncontroverted and circumstantial evidence there was a strongly arguable case that the Lowes and Foot used BTL information and depot as a springboard and that CHB benefited; full prohibition on CHB trading was refused because Foot agreed to transfer her shares and cease employment with CHB within 14 days, but a limited interim restraint was granted preventing the second to fourth defendants from directly or indirectly soliciting named BTL clients (those BTL serviced in the last 12 months) identified on an Empower-derived list to be provided by the plaintiffs, effective 48 hours after service of that list, with inspection rights and leave to apply to vary the list.

Court Disposition

Application partly granted and partly refused (interim restraint granted on solicitation of specified clients; full prohibition on CHB trading refused subject to undertakings)

Orders

  • Second to fourth defendants are restrained from directly or indirectly soliciting business from persons to whom the First Plaintiff provided livestock trucking services within the last 12 months as identified in a list to be provided by the plaintiffs
  • Plaintiffs to deliver the list of affected clients (with addresses) by 5pm Friday 25 February 2011; the order takes effect 48 hours after service of that list