Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458

FEDERAL COURT OF AUSTRALIA

Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458 Citation: Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458

Parties: ZOMOJO PTY LTD v MATTHEW HURD, ZEPTONICS PTY LTD, CROSSWISE PTY LTD, MD HAMMER PTY LTD, ZEPTO MARKETS PTY LTD, ZEPTO FABRICS PTY LTD, ZEPTOIP PTY LTD and TRADEMACH PTY LTD; MATTHEW HURD, JOLENE (TAS) PTY LTD and HURD FAMILY SUPERANNUATION FUND; ZOMOJO PTY LTD

File number: VID 1478 of 2011

Judge: GORDON J

Date of judgment: 19 December 2012

Corrigendum: 18 June 2013

Catchwords: CORPORATIONS – directors – fiduciary and statutory director's duties – first respondent a director of the applicant – first respondent established business in competition with applicant – first respondent failed to disclose opportunities, attempted to take the benefit of opportunities – first respondent used information obtained in his position as director to develop products in competition with the applicant – first respondent undertook fundraising activities in respect of a competitor venture – breach of duty of good faith under s 181 of the Corporations Act 2001 (Cth) – use of information to improperly gain an advantage in breach of s 183 of the Corporations Act 2001 (Cth) – breach of fiduciary obligations of fidelity and good faith – duration of duties owed by company director – whether second to eighth respondents liable for knowingly assisting first respondent's breaches of fiduciary duty – Corporations Act 2001 (Cth) ss 181, 183 CONTRACT – employment – confidential information – restraint upon the use of confidential information broader than equitable restraint and for unlimited duration – may extend to employee's know how or knowledge obtained during the course of employment – may extend to combinations of information not individually confidential – restraint of trade – restraint upon trading activities in respect of certain markets for a certain duration – restraint upon offering employment to existing employees of the applicant – first respondent used recruitment agency to offer employment to other former employees – enforceability of restraint provisions – factors relevant to validity – application of Restraints of Trade Act 1976 (NSW) to provisions not expressed in severable terms – whether second and fifth respondent liable for inducing breach of contract – Restraints of Trade Act 1976 (NSW), s 4 CONTRACT – employment – disclosure and assignment of inventions created during period of employment – extension to evolutions of inventions – first respondent conceived of, developed, designed and marketed a series of devices based upon knowledge of applicant's techniques – evidence of when inventions first conceived of – first respondent failed to disclose and assign inventions PRACTICE AND PROCEDURE – relief – relief must be tailored to the particular findings of breach – applicant sought to restrain the first respondent for a further period of 12 months from misusing confidential information – injunction neither necessary nor justified