Keith Soames Real Estate (Thornleigh) Pty Ltd v Bambrick

[2011] NSWSC 543

Supreme Court

New South Wales

Medium Neutral Citation:	Keith Soames Real Estate (Thornleigh) Pty Ltd v Bambrick [2011] NSWSC 543
Hearing dates:	2 May 2011
Decision date:	02 May 2011
Jurisdiction:	Equity Division
Before:	Gzell J
Decision:	Application for interlocutory injunctive relief dismissed with costs.
Catchwords:	Employment Law - The Contract of Service and rights, duties and liabilities as between employer and employee - Restraint of trade - conflict of evidence as to whether employee rehired on same terms and conditions of previous employment, including post-termination restraints - whether if said sufficient to incorporate post-termination restraints
Cases Cited:	Aussie Home Loans Ltd v X Inc Services Pty Ltd [2005] NSWSC 285; (2005) ATPR 42-060
Category:	Interlocutory applications
Parties:	Keith Soames Real Estate (Thornleigh) Pty Ltd (Plaintiff) Alison Bambrick (Defendant)
Representation:	Counsel: M Moir (Plaintiff) D Mahendra (Defendant) Solicitors: Robert Napoli & Co (Plaintiff) Jeffery & Jeffery Solicitors (Defendant)
File Number(s):	2011/132718

EX TEMPORE Judgment

1. I am asked to make orders on an interlocutory basis restraining the Defendant, Alison Bambrick, from carrying out solicitations of clients of the Plaintiff, Keith Soames Real Estate (Thornleigh) Pty Ltd, consequent upon the termination of her employment.

1. There is a conflict in the evidence presently before the court as to the terms of Ms Bambrick's employment. She had been employed under a written agreement that included post-termination restraints. That contract had come to an end and she sought a second term of employment when she was asked to return to work.

1. Keith Soames' evidence is that Ms Bambrick was re-hired on the basis that the same terms and conditions of her previous employment would apply; that being part of the conversation deposed to by Mr Soames. Ms Bambrick's evidence is that she was invited to return and no such conversation took place.

1. In Aussie Home Loans Ltd v X Inc Services Pty Ltd [2005] NSWSC 285; (2005) ATPR 42-060 the first plaintiff, Aussie Home Loans, had employed a number of individuals pursuant to written contracts of employment that contained terms against post-termination solicitation. Thereafter the employees of the first plaintiff were employed by the second plaintiff, AHL Investments Pty Ltd.

1. The fifth to eighth defendants were advised of a change in their employment by a letter which stated, amongst other things:

"The terms and conditions of your employment with AHL Investments Pty Ltd will not differ from those with Aussie Home Loans and your service and/or entitlements will transfer with you."

1. White J at [51] - [52] concluded that the contractual arrangement with respect to post-termination and non-solicitation were not imposed on the defendants under their employment contracts with AHL Investments. His Honour said:

"The question of whether a person can impose a contractual obligation upon another in the way envisaged by this email is not one which I need determine. (See Felthouse v Bindley (1862) 11 CB (NS) 869; 142 ER 1037; Carter & Harland, Contract Law in Australia , 4 ed, para [229]). That is so, because the defendants accepted that from 1 July 2004, they ceased to be employed by the first plaintiff and became employed by the second plaintiff. Rather, the question is whether, by the terms of this correspondence, all of the terms of the contract of employment including the post-contractual restraints became terms of a new contract between the fifth to eighth defendants and the second plaintiff, such that from that time those defendants were subjected to a restraint against soliciting or endeavouring to entice away employees of the second plaintiff after the termination of their employment with it. There was no express reference in the correspondence to such post-contractual restraints. The only terms which were expressly incorporated as terms of the contracts between those defendants and the second plaintiff were 'the terms and conditions of your employment.' In my view, the terms included in that expression were the terms which regulated the fifth to eighth defendants' employment with the second plaintiff, ie, what were their duties, their remuneration, their hours of work, their entitlements to annual leave, sick leave, long-service leave and superannuation, when their employment could be terminated, and the like. I do not consider that the post-contractual restraints are properly characterised as the terms and conditions of their employment. Rather they were what were characterised in some contracts as 'post-employment obligations'."

1. The similarities between the situation in that case and the situation before me are obvious. The question is whether I should grant interlocutory relief on the basis that the Keith Soames has a significant chance of succeeding in the substantive proceedings.

1. I do not consider that that has been demonstrated on the evidence before me. Nor am I satisfied that damages will not be an adequate remedy in the circumstances.

1. I decline, therefore, to make the interlocutory orders sought in the summons. Costs should follow the event and I order the plaintiff to pay the defendant's costs.

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