“Nope! The injunction stays and you’re still restrained.”
___
P was a member of an international group of leasing businesses. D was a former employee of P’s.
Commencing in 2016, over time D had been promoted, signing a number of new employment agreements: [4]
The most recent contract included a 3 month notice period and an extended restraint. D gave evidence they did not read the agreement before signing, instead relying on emails exchanged at the time: [7], [8]
In Feb 2023, D resigned purporting to give 4 weeks notice: [9]
After D left employment, P was granted an injunction restraining D from competing with P for a period: [2]
D entered into an employment agreement with a competing property business purporting to commence in March 2023: [12]
D’s resignation was a repudiation that P could accept and terminate, or otherwise keep on foot. P kept the contract on foot: [13]
The “garden leave” requirements that P said remained on foot were indeed restraints of trade: [13]
In early March P got an injunction preventing D from working for their new employer: [15]
D sought to discharge the injunction: [16]
P had to show the restraint was reasonably necessary to protect its legitimate interests, and otherwise compliant with the NSW legislation: [20] - [22]
D said they were not bound by the 3 month notice period as they had not read the document (legally immaterial where a person has signed a document known by them to include contractual terms): [25]
P said D had developed personal relationships, had access to confidential information like tenders and pricing, and may take 12 months to properly replace: [28]
D said head hunting was common among the small industry and the restraint was unnecessary: [30]
P established a serious question to be tried due to (i) D’s senior status and personal relationships, (ii) that (at least) 3 months might be needed to onboard a replacement for D, and (iii) P had a legitimate interest in protecting the confidential information D was aware of: [31] - [33]
Noting D’s role with P there was a risk damages were not an appropriate remedy: [35]
While D might face some financial risk, P undertook to continue paying their salary, nor was there evidence that D’s signon bonus was at risk: [36], [37]
That protected D’s position: [42]
D “was the author of (their) own misfortunes” by entering into an arrangement with a new employer in breach of their previous obligations: [40]
The balance of convenience favoured the maintenance of the injunction: [43]
The application to dismiss the injunction failed. D remained bound by it: [45]