New South Wales Supreme Court CITATION : RBM Plastic Extrusions Pty Ltd v Diaz [2006] NSWSC 1332 HEARING DATE(S) : 20/09/06 JURISDICTION : Equity JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 09/22/2006 DECISION : Interlocutory injunction granted restraining solicitation for 3 months CATCHWORDS : RESTRAINT OF TRADE - Employer and employee - whether reasonable - legitimate protectable interest - customer connection - confidential information - whether excessive in duration - where restraint period would be longer than duration of employment - duty of fidelity - where arguable breach - whether injunctive relief available - whether perpetual injunction would be available - appropriate duration of interlocutory injunction - "springboard" doctrine LEGISLATION CITED : Restraints of Trade Act 1976 (NSW), ss 4(1), 4(3) Adamson v West Perth Football Club Inc (1979) 39 FLR 199 Cactus Imaging Pty Ltd v Peters [2006] NSWSC 717 Canadian Aero Service Ltd v O'Malley [1974] SCR 592; (1973) 40 DLR (3d) 371 Faccenda Chicken Ltd v Fowler [1986] ICR 297 Nichol v Martyn (1799) 2 Esp 732 CASES CITED : Robb v Green [1895] 2 QB 1 Robb v Green [1895] 2 QB 315 (CA) Roger Bullivant Ltd v Ellis [1987] FSR 172 Wessex Diaries Limited v Smith [1935] 2 KB 80 (CA) Wright v Gasweld (1991) 22 NSWLR 317 Dr Robert Dean, The Law of Trade Secrets and Personal Secrets, (Law Book Co, 2nd Edn, 2002), [4.65] PARTIES : RBM Plastic Extrusions Pty Ltd ACN 000 464 960 Daniel Diaz FILE NUMBER(S) : SC 4629/06 COUNSEL : M Ashhurst (P) G Sirtes (D) SOLICITORS : Ebsworth & Ebsworth Lawyers (P) The Law Partnership, Solicitors (D) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST Brereton J Friday 22 September 2006 4629/06 RBM Plastic Extrusions Pty Limited v Daniel Diaz JUDGMENT (Ex tempore) 1 HIS HONOUR: The plaintiff RBM Plastic Extrusions Pty Limited manufactures plastic extrusions. It employed the defendant Mr Daniel Diaz as its marketing manager from 1 May 2006 until 11 August 2006, when he left to take up management of his own venture in plastic extrusions. His contract of employment with RBM included a confidentiality agreement, and in particular a clause in the following terms:- I shall not, after the termination of my employment, canvass, solicit, interfere with or entice away any person who at any time during the continuance of my employment has dealt with or been employed by RBM Plastic Extrusions Pty Limited. 2 The confidentiality agreement also contained undertakings, the terms of which it is unnecessary for present purposes to set out in full, not to divulge the affairs or secrets of RBM, nor to use information acquired in the course of the employment in any manner that may injure or cause loss to RBM, nor to disclose to any person any information as to the practices, business dealings or affairs of RBM. 3 On 7 September 2006, the Court by consent made orders in the following terms:- 1. the defendant be restrained, until further order, whether by himself, his agents or servants, from using any information, including Customer Lists, Product Lists, Price Lists, Sales Notes, Past Order Notes, which the defendant has acquired in the course of employment with the plaintiff; 2. the defendant immediately return to the plaintiff all documents or other form of recordings of any information, of the type specified in Order 1 above, which the defendant has acquired during the course of employment with the plaintiff; 3. the defendant be restrained, until further order, from disclosing to any person any of the business affairs or trade secrets of the plaintiff including but not limited to the information referred to in orders 1 and 2 herein; and 4. the defendant be restrained, until 5:00 pm on 20 September 2006 whether by himself, his agents or servants, from canvassing, soliciting, interfering with or enticing away or attempting to entice away any customer with whom the defendant dealt with whist (sic) he was an employee of the Plaintiff including but not limited to those customers described in Schedule 1 attached to the summons. 4 Accordingly, there are already in place interlocutory injunctions until further order restraining the defendant from using any information including customer lists, product lists, price lists, sales notes and past order notes which he has acquired in the course of his employment with RBM, commanding him to return such documents or other information, records of that type to RBM, and restraining him from disclosing to any person any of the business affairs or trade secrets of RBM. It is in respect of the fourth order of 7 September 2006, which was expressed to be limited to 20 September 2006, and which restrains the defendant from canvassing, soliciting or enticing away any customer of RBM with whom Mr Diaz dealt whilst an employee of RBM, that this hearing is concerned. On 20 September 2006, the interlocutory application for an extension of that order was part heard, and I extended the injunction until and including 21 September. Time did not remain at the end of the hearing on 21 September to give judgment then, and I extended the order up to and including 5 p.m. today, or earlier further order. 5 Mr Diaz opposes the continuation of the order in the terms in which it was made, but, without admission, submits to an order substantially to the same effect but with two significant differences: first, he submits to such an order limited to a period of three months from today; secondly, he objects to the inclusion in the list of customers from whom he is to be restrained from canvassing or soliciting of three specified customers, namely Shutters R Us, Feenix Australia, and Owseat. However, Mr Diaz has made clear that in submitting to such an injunction on a 'without admissions' basis, he does not accept that the restraint in the contract is valid for the purposes of a final hearing and reserves the right to contend that it should be ordered to be totally invalid pursuant to the Restraints of Trade Act 1976 (NSW), s 4(3); and he has made clear that his submission to a limited injunction for present purposes is not to be taken even on this application as a concession that there is a legitimate protectable interest, on which I might otherwise have founded for a finding it at least seriously arguable that there was a valid restraint in respect of the three disputed customers. Thus, all that can be drawn from that concession is that, for one reason or another - possibly that the other customers simply do not matter to him - he is content to make it. 6 Accordingly, I must approach this case, so far as the three customers in dispute are concerned, on the basis that it falls to the plaintiff to establish that it is at least seriously arguable that there is a valid restraint in respect of them, for any period at all. 7 Against that background I think the issues for present purposes can be summarised as follows: first, whether the contractual restraint, properly construed, extends to the three disputed customers; secondly, whether that restraint is reasonable insofar as it does so; thirdly, whether the contractual restraint is not unreasonable insofar as it exceeds a period of three months and, if so, for how long; fourthly, whether (as counsel for the plaintiff submits) quite apart from the contractual restraint, RBM has a seriously arguable case for final relief in substantially the same terms, based on a breach of Mr Diaz's duty of fidelity as an employee. 8 I turn first to the question of the three disputed customers: Shutters R Us, Feenix Australia and Owseat. Shutters R Us has been a customer of RBM since January 2002. The evidence establishes that RBM made a sale of product to Shutters R Us on 12 May 2006, and that that sale was made on behalf of RBM by Mr Diaz. Those facts are sufficient to show that Shutters R Us was, within the terms of the restraint in the confidentiality agreement, a person who during the continuance of Mr Diaz's employment with RBM had dealt with RBM. 9 Moreover, Mr Diaz has annexed to his affidavit in these proceedings a curriculum vitae, apparently post-dating his departure from RBM because it contains reasons for leaving RBM, in which he describes his employment at RBM and lists what he calls "his achievements". They include:- Introduced new customers (from personal network) with potential work for RBM - Feenix Australia, Global Contract, Shutters R Us. 10 Mr Diaz says that Shutters R Us was an organisation with which he had had considerable contact, long before he came to RBM, and that may well be so; but that does not detract from the proposition that it is nonetheless a person with whom RBM dealt while he was an employee, and did so through him. 11 So far as Feenix is concerned, Feenix became a customer of RBM in about June 2006, placing orders with RBM in May 2006 and July 2006, through Mr Diaz on behalf of RBM. The extract from Mr Diaz's curriculum vitae which I have already set out shows that he claims credit for introducing Feenix to RBM. 12 As for Owseat, it has been a customer of RBM since December 1998. It placed an order with RBM in July 2006 and RBM, through Mr Diaz, submitted a quote to it in July 2006. Again, in Mr Diaz's curriculum vitae he goes on to say:- Regained lost sales on RBM accounts: Frameworks, Owseat, Faulkner-Collins. 13 It follows that each of the three disputed customers is a person who, during Mr Diaz's employment with RBM, dealt with RBM. That is sufficient to bring them within the terms of the contractual restraint. 14 When it comes to making an assessment of reasonableness, it is relevant to note that the dealings of those customers with RBM during Mr Diaz's employment took place through the person of Mr Diaz, who was the person at RBM with which they dealt and who was the face of RBM to those customers. It is also relevant to note that Mr Diaz's influence and connection with those customers is emphasised by the credit he claims for their introduction or reintroduction in his curriculum vitae. 15 It follows that the conduct which would be restrained by the proposed injunction, which extends only to solicitation of customers, as distinct from dealing with customers who come unsolicited, is one which, on the proper construction of the contractual restraint, would be a breach of that restraint. 16 Whether such a restraint is reasonable depends on whether the employer has a legitimate protectable interest, either in confidential information or in customer connection, which is protected by it, and whether insofar as it protects that interest it is not excessive. 17 Given Mr Diaz's responsibilities as marketing manager, the requirements of which position demanded ongoing contact with customers and which made him effectively the persona through whom the company conducted business with its customers, I do not think that there is room for doubt that this is a case in which the employer had a legitimate interest in customer connection which it was entitled to protect, vis-à-vis its marketing manager Mr Diaz. 18 I turn next to the duration of the restraint. In the contract, it is expressed to be unlimited in time and it is almost inevitable that that is excessive, and that at common law the restraint would be void as contrary to public policy because it is excessive in duration. However, in New South Wales one starts from the position that a restraint is valid to the extent that it is not contrary to public policy, even if not in severable terms. 19 In this case that raises the question, for how long would such a restraint be reasonable? In this interlocutory application, that issue needs to be addressed in the context of how long an interlocutory injunction might remain on foot. If an interlocutory injunction were granted, then the defendant would have a very strong claim for an expedited final hearing and, although ultimately that is a matter for the expedition list Judge, it is difficult to imagine that expedition would not be granted. An expedited final hearing would likely take place in February or March of next year. Accordingly, the real question I think is whether it is seriously arguable that a restraint for a period of, say, six months, is not unreasonable. 20 For the plaintiff, Mr Ashhurst has submitted that it would be reasonable for a period of 18 months, a submission which is based on evidence from the managing director of RBM to the effect that the marketing manager's responsibilities involved visits to each customer every six months and that it would take, so it is suggested, three such visits for a marketing manager sufficiently to build up a rapport and demonstrate competence so as to resecure the customer connection that was attached to the previous employee. 21 Mr Ashhurst correctly submits that the validity of a restraint is to be judged at the date of the contract. However, when it comes to exercising the discretion as to whether an injunction should be granted, it is relevant to look also at the circumstances at the date of the hearing. 22 Dealing first with the restraint at the date at which it was made, an employer and employee are entitled to take into account the possibilities of what may happen in the future, as well as the facts as they then exist. It was, of course, possible at the date of the contract, so far as the employer was aware, at least that Mr Diaz might remain in employment for many years and build up a strong customer connection. It was also possible, though not foreseen, that he might stay, as turned out to be the case, only for a very short time. 23 A restraint for 18 months might have been valid for an employee who was to stay long-term. In any event, for an employee who might stay for a long term, it would plainly be seriously arguable that a restraint for at least six months was not unreasonable. But such a restraint would not cover all the possibilities which had to be foreseen at the time the contract was entered into, including the possibility that the employee might stay for a short time only. 24 It does not seem to me seriously arguable that a restraint based on customer connection, as distinct from confidential information, which lasted for longer than the period of actual employment in the case of a short employment, is reasonable. It does not make sense that it would take a replacement employee longer than the total duration of employment of a short-term employee to build up a similar connection and replace the short-term employee. Such a restraint would be unreasonable because, in reasonably foreseeable events (such as departure of the employee in less than 18 months) it would be excessive, in that it would impose a greater restriction than was reasonably necessary for the protection of the employer's customer connection. 25 Accordingly, insofar as it is based on customer connection, I cannot see that the restraint would be reasonable for a longer period than the duration of Mr Diaz's employment which, in the event, was a little over three months. 26 Of course, a restraint against working for a competitor, and a fortiori one against soliciting customers, can be supported by confidential information as well as by customer connection. In this case, it was clear that Mr Diaz might come into possession of confidential information at RBM. Other specific provisions of the confidentiality agreement addressed that possibility. However, as I endeavoured to explain in Cactus Imaging Pty Ltd v Peters [2006] NSWSC 717, the fact that other provisions might cover confidentiality does not mean that a non-solicitation covenant cannot also be supported by protection of confidential information. In that context, the question which informs reasonableness of duration is, how long might the confidential information that comes into the possession of the employee continue to give the employee an advantage in competing with the employer? 27 The evidence does not assist me to find that the employee would be advantaged so far as using confidential information to compete is concerned, over and beyond the period which I have found reasonable on the basis of customer connection. There is nothing I can find in the evidence which shows that the confidential information relied on is such as would give the employee a long-term advantage. Accordingly, I cannot see a case for extending the duration of the protection of the contractual restraint insofar as it relies on confidential information, beyond the three months that is reasonable to protect customer connection. 28 However, as I have foreshadowed, Mr Ashhurst raised a further argument, namely, that there was a seriously arguable case that Mr Diaz should be permanently restrained from soliciting RBM's customers forever, on the basis of a breach of fiduciary duty. In summary Mr Ashhurst submitted that there was a seriously arguable case that, by a dishonest strategy of obtaining employment with RBM at a time when he well knew that he intended to set himself up in the same industry in a short time and in competition with RBM, without disclosing that intention to RBM, Mr Diaz was effectively using his employment to position himself to compete with RBM, in breach of his duty of fidelity as an employee. Then, so it was submitted, on the principles referred to in Canadian Aero Service Ltd v O'Malley [1974] SCR 592; (1973) 40 DLR (3d) 371 and like cases, the prophylactic nature of equitable relief for breach of fiduciary duty should require him to be precluded forever from taking advantage of opportunities which he was obliged to seek and take, if at all, only for the benefit of his employer RBM. 29 In this context, RBM relies not on a breach of a post-contractual restraint, but on a breach of the employee's obligation of fidelity during employment. In The Law of Trade Secrets and Personal Secrets, (Law Book Co, 2nd Edn, 2002), Dr Robert Dean says (at [4.65]) in the course of discussing the different position of an employee during employment compared with that which obtains after employment has been terminated:- At the risk of oversimplification of the difference, generally and as a consequence of the employee's obligations of fidelity, all the employer's information - the use or disclosure of which would harm the employer - is protected during employment whereas only trade secrets and information dishonestly obtained will be protected after employment. 30 The reference to "information dishonestly obtained" is a reference to information dishonestly obtained during employment in preparation for departure from employment - such as by copying customer lists in preparation for departure [Robb v Green [1895] 2 QB 1, (Hawkins J), affirmed [1895] 2 QB 315 (CA)]; or soliciting customers of the employer for the benefit of the employee before the moment the employment comes to an end [Wessex Diaries Limited v Smith [1935] 2 KB 80 (CA)]. 31 Mr Sirtes for the defendant invoked the words of Lord Kenyon in Nichol v Martyn (1799) 2 Esp 732, in which his Lordship said:- There is nothing morally bad or very improper in a servant who has it in contemplation at a future period to set up for himself, to endeavour to conciliate the regard of his master's customers, and to recommend to them, so as to procure some business from them as well as others. 32 And in Robb v Green, Hawkins J said:- In what I have said I do not intend to convey that while the contract of service exists a person intending to enter into business for himself may not do anything by way of preparation, provided only that he does not, when serving his master, fraudulently undermine him by breaking the confidence reposed in him. For instance, he may legitimately canvass, issue his circulars, have his place of business in readiness, hire his servants, etc. Each case must depend on its own circumstances. 33 However, the reference to legitimate canvassing has been questioned, and it is clear from the judgment of Maughan LJ in Wessex Dairies that it is not to be taken as to permitting canvassing of the employer's customers before termination of employment. 34 Perhaps the most useful case for present purposes is the judgment of the Court of Appeal of England and Wales in Roger Bullivant Ltd v Ellis [1987] FSR 172, in which the plaintiff engineers had employed the first defendant as managing director. There was a contractual restraint providing that he would not, within twelve months of termination of his employment, transact business or attempt to do so with any client with whom the plaintiff had, within the preceding twelve months, transacted business. The first defendant resigned in 1985, taking with him many documents containing confidential financial and commercial information belonging to the plaintiffs. Subsequently, the defendant started a business which competed directly with the plaintiffs. The plaintiffs brought an action alleging breaches of a contract, and obtained an interlocutory injunction, restraining the defendants until judgment or further order from entering into or fulfilling contracts with any persons whose names and addresses appeared on a card index which the defendants had taken, and also from using or communicating the plaintiffs' trade secrets. 35 On an interlocutory appeal, the Court of Appeal accepted that, for at least about three months before the first defendant's departure, he had been planning to make extensive and unlawful use of the plaintiff's property, including technical and commercial information, and was not at all candid with the plaintiff about his future intentions. As was the case in Robb v Green and Wessex Dairies, the case was dealt with on the basis of an implied contractual obligation of fidelity, rather than a breach of fiduciary duty in the sense in which the term is typically used in equity. With reference to the judgment of Neill LJ in Faccenda Chicken Ltd v Fowler [1986] ICR 297, 308-309 - a passage which is unaffected by disapproval of some aspects of that case in this Court in Wright v Gasweld (1991) 22 NSWLR 317 - it was pointed out that the employee's duty of good faith would be broken if he made a list of customers of the employer for use after his employment ends; or deliberately memorised such a list; even though, except in special circumstances, there was no general prohibition after employment, on doing business with customers of his former employer (for which Robb v Green and Wessex Dairies were cited). 36 These cases together make good the proposition in the passage in Dean set out above, that as well as trade secrets, information which would otherwise not be protectable in equity will be protected after employment if it is dishonestly obtained - which is to say, obtained in breach of the employee's duty of fidelity during employment. 37 However, there is a question as to what the appropriate relief in such circumstances is. Mr Sirtes submitted that it could never be an injunction and was limited to damages or an account of profits. I disagree. In the earlier of the cases to which I have referred, Robb v Green, the trial judge, Hawkins J, granted, and the Court of Appeal upheld, as well as an award of damages, an injunction commanding the defendant to deliver up the list of names and addresses of customers which he had taken, and all copies and extracts from it, and additionally restricting him from making use of the information obtained by him from that list. In Wessex Dairies it seems that only damages were awarded, and the question of injunctive relief appears not to have been discussed. In Roger Bullivant v Ellis, Nourse LJ, after referring to the injunctive relief that had been granted in Robb v Green, said, of the second aspect of that injunction - which restrained the defendant in that case from making use of the information obtained by him, by copying or extracting names of customers:- It is to be noted that the second injunction did not restrain the defendant from contracting with any of the plaintiffs customers if he was able to do so without making use of the information which he had unlawfully acquired. 38 His Lordship went on to say that such an injunction, although it may be effective in relation to other forms of information:- … is not a very satisfactory one in this particular kind of case. It is difficult for either party to know whether it will be, or has been, breached and it is accordingly difficult of enforcement. On that ground the form of injunction which has been granted in the present case is preferable, although it at once gives rise to another objection which is that it may well preclude the defendant from contracting with those with whom he undoubtedly could have contracted without making use of the prohibited information. While, as I have said, that objection does not entitle the defendants in this case to complain altogether of an injunction in that form, it does nevertheless require the Court to ensure it is not, in other respects, overly onerous. 39 It will be remembered that the injunction which had been granted in Roger Bullivant v Ellis - which his Lordship thought preferable - was one restraining the defendants from entering into or fulfilling contracts with any persons whose names and addresses appeared on the card index. 40 To my mind, the cases of Robb v Green and Roger Bullivant v Ellis make clear that injunctive relief is available to prevent abuse after termination of employment of a breach of fidelity committed during employment, but that the Court has to be careful to mould that relief to ensure it is not, in other respects, unduly onerous. 41 Instructively, none of these cases have applied, in the context of an employee's duty of fidelity, the strict prophylactic approach that equity imposes on fiduciaries such as company directors, solicitors and trustees. This is consistent with the employee's obligation being sourced in an implied contractual term, rather than being imposed by equity. 42 In Roger Bullivant v Ellis, the interlocutory injunction was expressed to extend until the final determination of the proceedings. In the Court of Appeal, though not at first instance, it was argued that that was excessive, and that the injunction should not have extended beyond a period of twelve months. That argument succeeded in the Court of Appeal. Nourse LJ said the purpose of the injunction was to prevent the defendants from taking unfair advantage of the "springboard" which they must have built up by the employee's use of the information in the card index. His Lordship said:- Granted, first, that such an advantage cannot last forever, secondly, that the law does not restrain lawful competition and, thirdly, that in restraining unlawful competition it seeks to protect the injured and not to punish the guilty, I cannot see that it is right for the term of the injunction to extend beyond the period for which the advantage may reasonably be expected to continue. 43 May LJ took a similar view. One factor which was taken into account was that the contractual restraint on competition was limited to twelve months. 44 Those matters, I think, answer Mr Ashhurst's submission, that, assuming that the relevant facts could be established, there would be a seriously arguable case for a perpetual injunction. 45 I return to the facts. On 30 January 2006, three months before he commenced employment with RBM, Mr Diaz, with two others, registered a business name, All Polymer Extrusions, the nature of the business of which was stated to be manufacturing and sourcing of extruded plastic components. It is apparent from the records of the mobile telephone service with which Mr Diaz was provided by RBM during his employment, that almost from the moment his employment commenced he was in very frequent contact with the other two persons with whom he established that business name. It is also apparent that very frequently, and from quite early in his employment at RBM, he was at Wetherill Park on weekends, which happens to be the location of the factory of All Polymer Extrusions. It is unnecessary for me to go into all of the evidence that has been produced on the issue. Suffice to say there is a seriously, and if not strongly, arguable case that when he commenced his with RBM Mr Diaz already intended to leave in a short time, to set up his own business in the same industry. 46 Although, in his cross-examination, Mr Diaz sought to suggest that his business would not be in competition with RBM, because it services a particular sector of the market, it suffices to say at this stage that I think the contrary is seriously, if not strongly, arguable. At the least, it seems that the products which Mr Diaz's business will be supplying are capable of being substituted for the products which RBM is supplying, and where there is an ability to substitute products there is a market, and therefore competition [see Adamson v West Perth Football Club Inc (1979) 39 FLR 199, 224]. 47 Mr Diaz conceded in cross-examination that he did not disclose the activities he was undertaking, for the benefit of his own proposed business, to RBM. Covert conduct of that type is a strong indicator of a breach of the employee's duty of fidelity. 48 In short, I think the plaintiff has established a seriously arguable case that Mr Diaz was engaged on a breach of fidelity from the outset of his employment with RBM, in that he was seeking to position himself for the establishment of his own business in competition with RBM. 49 The question remains - what should be the maximum duration of an interlocutory injunction, to protect RBM in the circumstances pending a hearing? In principle, the answer to that is - how much of a benefit, by a head start or a springboard, has Mr Diaz's employment with RBM given him in setting up in competition? 50 Consistently with what I have said about the confidential information aspect, the evidence does not much assist in identifying just how long a benefit or head start Mr Diaz's employment with RBM would have given him. In particular, the evidence does not show that the specific information which McWilliam has identified in his affidavit material - in particular "customer lists, price lists, product descriptions, previous sales history and previous customers orders history" - would be of continuing benefit to someone in the position of Mr Diaz. Even on an interlocutory application it is still for a plaintiff to produce evidence that this information will be of ongoing benefit and for how long, and it seems to me that the evidence does not reach that level. The best I can do is that, drawing every inference in favour of plaintiff in this respect, assuming that Mr Diaz effectively used the whole of his service with the plaintiff to pre-position him to compete with RBM, it is not apparent that three months and a bit service with the plaintiff, could have given him more than three months and a bit head start. 51 Mr Diaz left the plaintiff's employment on 11 August 2006. A month has already passed since then and, for those reasons, it seems to me that, whichever way one looks at it, a case for restraint longer than three months from today is not made out. 52 Upon the plaintiff, by its counsel, giving to the Court the usual undertaking as to damages, I order that the defendant be restrained until 22 December 2006 or earlier further order from, by himself, his servants or agents, canvassing, soliciting, interfering with, enticing away or attempting to entice away any customer with whom the defendant dealt whilst he was an employee of the plaintiff, including but not limited to those customers described in schedule 1 of the amended summons. 53 The plaintiff has succeeded in obtaining an interlocutory injunction, although not to the full extent that it sought. In particular, the plaintiff has succeeded in obtaining an injunction more extensive than that which the defendant offered in that it extends to the three disputed customers. In those circumstances I think the costs of the interlocutory application should be the plaintiff's costs in the cause. 54 My order is that the costs of the interlocutory application be the plaintiff's costs in the cause. I reserve leave to either party to apply, by close of business today, to vary or set aside the costs order. 55 I stand the summons over to Tuesday, 26 September 2006 at 9.30 am before the Registrar for directions. ********** 56 Notwithstanding Mr Sirtes submissions, I remain of the view that the plaintiff on the interlocutory application obtained, not a total success, but more relief than the defendant was prepared to concede. The limited form of the defendant's concession left the plaintiff to prove all issues relating to those three customers. 57 In those circumstances I think costs of the interlocutory application should remain the plaintiff's costs in the cause. The previous order will not be varied. 58 I order that the defendant pay the plaintiff's costs of the appearance at 3.50 p.m. on 22 September 2006, being an appearance of some 20 minutes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.