Electroboard Administration v O'Brien [1999] NSWCA 452

New South Wales Court of Appeal CITATION : Electroboard Administration v O'Brien [1999] NSWCA 452 FILE NUMBER(S) : CA 40185/98 HEARING DATE(S) : 14 October 1999 JUDGMENT DATE : 10 December 1999

Appellant: Electroboard Administration Pty Ltd PARTIES : 2nd Appellant: Electroboard Pty Ltd 1st Respondent: Sheila O'Brien 2nd Respondent: Sony Australia Pty Ltd JUDGMENT OF : Mason P at 1; Priestley JA at 2; Meagher JA at 3

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : ED1416/98 LOWER COURT JUDICIAL OFFICER : Cohen J

Appellant: D J Hammerschlag COUNSEL : Respondent 1: D A Smallbone Respondent 2: D Ryan /C Champion Appellant: Gilbert Tobin, Sydney SOLICITORS : Respondent 1:Jennifer Darin, Chatswood Respondent 2:Middletons Moore & Bevins, Sydney CATCHWORDS : Contract of employment; Employing company part of company group; Restraint of trade; Breach of contract; Company party to contract not employing company Restraints of Trade Act,1976(NSW) ACTS CITED : Contracts Review Act,1980(NSW) The Lord Cairns Act Supreme Court Act,1970(NSW) DECISION : Appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES SYDNEY REGISTRY COURT OF APPEAL ED No. 1416 of 1998 CA No. 40185 of 1998

MASON P PRIESTLEY JA MEAGHER JA

10 DECEMBER 1999 ELECTROBOARD ADMINISTRATION PTY LIMITED AND ANOR V SHEILA O'BRIEN AND SONY LIMITED

CONTRACT OF EMPLOYMENT-EMPLOYING COMPANY PART OF COMPANY GROUP-RESTRAINT OF TRADE-BREACH OF CONTRACT-COMPANY PARTY TO CONTRACT NOT EMPLOYING COMPANY

Facts: Electroboard was a company group consisting of four members. Mrs O'Brien was employed by Electroboard Pty Limited, although all the administrative details pertaining to her employment were dealt with by Electroboard Administration Pty Limited. After some time with the former company she was asked to sign a restraint of trade document. She initially refused to do so, but succumbed to a significant amount of pressure, and so eventually signed. Ms O'Brien then left Electroboard and went to work for Sony Limited. Electroboard Pty Limited and Electroboard Administration Pty Limited brought action against Mrs O'Brien and Sony Limited in order to enforce the covenant in restraint of trade. This was unsuccessful, the trial judge holding no breach had occurred as the new term was not supported by any consideration. The two Electroboard companies appealed against this decision.