Cerilian Pty Ltd v Graham Fraser [2008] NSWSC 1016

New South Wales Supreme Court

CITATION : Cerilian Pty Ltd v Graham Fraser [2008] NSWSC 1016

HEARING DATE(S) : 29 August 2008 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 29 August 2008

DECISION : Interlocutory injunction granted to restrain defendant from soliciting business from plaintiff's clients.

CATCHWORDS : INTERLOCUTORY INJUNCTION – EMPLOYMENT CONTRACT – RESTRAINT OF TRADE – whether seriously arguable case – balance of convenience – where plaintiff sought relief a week after becoming aware of purported breach of contract.

CATEGORY : Procedural and other rulings

PARTIES : Cerilian Pty Limited (t/as Raine & Horne Gosford) (plaintiff) Graham Fraser (defendant)

FILE NUMBER(S) : SC 4478/08

COUNSEL : Ms S K Hill (plaintiff) Mr J A Trebeck (defendant)

SOLICITORS : CBD Law (plaintiff) Ferrys Law Firm (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Friday, 29 August 2008

4478/08 Cerilian Pty Ltd t/as Raine & Horne Gosford v Graham Fraser JUDGMENT (ex tempore) 1 HIS HONOUR: The defendant Graham Fraser was employed by the plaintiff Cerilian Pty Limited as a sales executive in the plaintiff's real estate agency at Gosford under a contract of employment dated 16 May 2008, made soon after Cerilian became the proprietor of that business, although Mr Fraser had been employed in the business by the previous proprietor, before it was acquired by Cerilian, for a period in excess of a year. The contract contains a restraint on Mr Fraser's activities after termination of the employment, in Schedule "B": POST EMPLOYMENT RESTRICTIONS 1.1 Interpretation of Clause Clause 1.2 shall have the effect as if it were separate clauses, each being severable from the other, such separate clauses consisting of each of the warranties and undertakings set out in clause 1.2 (a) and 1.2 (b) combined with each separate period referred to in clause 1.2 (c) combined with each separate area referred to in clause 1.2 (d). The parties agree that the restrictions are reasonable and are intended to operate to the maximum extent. If any of the said provisions are found to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of any of the other separate provisions. Further, if any provision found to be invalid or unenforceable would be valid or enforceable if part of the wording were deleted or modified and/or for the period of area in 1.2 (c) and 1.2 (d) respectively were reduced, the restrictions apply with the modifications required to make them valid and enforceable.