Huhtamaki Australia Ltd v Botha [2004] NSWSC 386

New South Wales Supreme Court

CITATION : Huhtamaki Australia Ltd v Botha [2004] NSWSC 386 HEARING DATE(S) : 30 April, 3, 4 and 5 May 2004 JUDGMENT DATE : 6 May 2004 JURISDICTION: Equity JUDGMENT OF : Hamilton J DECISION : Defendant restrained on interlocutory basis from enticing one particular customer of plaintiffs.

CATCHWORDS : TRADE AND COMMERCE [28] - Trade and commerce generally - Restraint of trade - Restraint by agreement - Enforcement of agreement - Remedies for breach of agreement - Right to injunction - Interlocutory injunction - Agreement not to solicit customers - Whether injunction may be granted to restrain solicitation of one customer only. First Australia Inc v Shade NSWSC 31 July 1998 Young J unreported Kolback Securities Limited v Epoch Mining NL (1987) 8 NSWLR 533 CASES CITED : Kone Elevators Pty Limited v McNay (1997) ATPR 41-564 McKloskey v Karagiozis [2002] FCA 1137 Rouen v Ryan [2001] NSWCA 230 Huhtamaki Australia Limited (P1) PARTIES : Huhtamaki (CP) Pty Limited (P2) Chris Botha (D) FILE NUMBER(S) : SC 2379/04 COUNSEL : S J Burchett then J S Mendel (Ps) A R Moses (D) SOLICITORS : Clayton Utz (Ps) Mallesons Stephen Jaques (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 6 MAY 2004

2379/04 HUHTAMAKI AUSTRALIA LIMITED & ANOR v CHRIS BOTHA JUDGMENT 1 HIS HONOUR: Another employee has left another selling organisation to take employment with a different selling organisation. This has led to these proceedings in which the plaintiffs seek to restrain what is said to be the misuse of confidential information and the breach of a covenant or contractual term in restraint of trade. The application is brought on an interlocutory basis. 2 The plaintiffs are part of a group called the Huhtamaki Group which sells packaging items to a large number of customers, including large retail chains such as Woolworths and Coles Myer. The defendant was originally employed by a company which was then in the Huhtamaki Group ("the Group"), but it is not now in the Group or a party to these proceedings. The employment took place in 1996. The defendant was at that time employed as Business Development Manager New South Wales and the prime focus of his job was said to be on the wine industry in New South Wales. The defendant was required to, and did enter into a secrecy deed with that company ("the secrecy deed"), then named Van Leer Australia Pty Limited. Clause 11 of the secrecy deed provided as follows: "The Employee shall not (without the previous consent in writing of the Board of Directors of the Company) for the period of two only years after the end of the Employee's employment with the Company, either on his own account or for any other person, firm or company, solicit or endeavour to entice away from the Company or any of its subsidiaries any person, firm or company who or which during the Employee's employment with the Company shall have been a customer of or in the habit of dealing with the Company or any such subsidiary."