Koops Martin v Dean Reeves [2006] NSWSC 445

New South Wales Supreme Court

CITATION : Koops Martin v Dean Reeves [2006] NSWSC 445

HEARING DATE(S) : 04/04/2006

JUDGMENT DATE : 4 April 2006

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 04/04/2006

DECISION : Leave to amend by adding claim for account of profits refused

CATCHWORDS : PROCEDURE – Amendment – proposed late amendment of summons for injunction enforcing restraint of trade and damages for breach to add claim for account of profits – where no prior allegation of fiduciary obligation – where no evidence of any profits – where amendment would necessitate adjournment of trial – where hearing expedition on defendant's application where defendant subject to interlocutory injunction

LEGISLATION CITED : Restraints of Trade Act 1976 (NSW)

PARTIES : Koops Martin Financial Services Pty Limited (formerly Koops Martin Financial Services Limited) ABN 23 098 362 246 Dean Reeves

FILE NUMBER(S) : SC 2005/06336

COUNSEL : J Fernon SC with D Hand (P) P Russell (D)

SOLICITORS : L S Juhasz of Koops Martin Lawyers (P) W J Langler of MBT Lawyers (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Tuesday 4 April 2006

6336/05 Koops Martin Financial Services Pty Limited v Dean Reeves JUDGMENT – Ex tempore (on leave to file amended summons) 1 HIS HONOUR: These proceedings were commenced by summons filed on 16 December 2005 pursuant to leave to do so with an abridgement for time for service granted by Windeyer J that day. The summons claimed an order restraining the defendant from, in substance, approaching, enticing, or endeavouring to entice away from the plaintiff persons who had been clients of the Koops Martin Group, accepting instructions to perform financial planning or advisory work for any person who is or was a client of the plaintiff in the twelve months before 8 November 2005, and accepting any employment which would require the defendant to reveal any confidential information of the Koops Martin Group. The summons also claimed damages. When the summons came before the Court on 22 December 2005 the defendant gave undertakings which have been continued from time to time until 4pm tomorrow. The need for a contested interlocutory hearing was averted when, on the defendant's application for expedition, the matter was on 3 March 2006 expedited by the Chief Judge and fixed for hearing to commence today. 2 The application for expedition was supported by an affidavit of William John Langelaar, the defendant's solicitor, who in paragraph 10 of his affidavit sworn 3 February 2006 identified what he believed to be the issues in the proceedings, which may for present purposes be summarised as: (1) the true construction of the restraint;