Tullett Prebon (Australia) Pty Ltd v Simon Purcell [2008] NSWSC 852

Reported Decision : 175 IR 414

New South Wales Supreme Court

CITATION : Tullett Prebon (Australia) Pty Ltd v Simon Purcell [2008] NSWSC 852 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 30 June, 1 July 2008

JUDGMENT DATE : 21 August 2008

JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

DECISION : Employee repudiated employment contract by resignation. Employer did not accept repudiation but elected to affirm. Employer did not repudiate, nor was there a mutual agreement to terminate. Contract remains on foot, but resignation terminated employer/employee relationship. Doctrine of restraint of trade applies during employment as well as after termination. Contractual prohibitions on engagement with third parties operative after actual employment ends but while contract remains on foot, including during periods of notice and gardening leave, are restraints of trade, and valid only insofar as they are reasonable. Relevant prohibitions in employee's contract are reasonable during the currency of actual employment, and for three months after expiry of term, but only for six months after actual employment brought to an end by resignation. Injunctive relief restricted to particular field of endeavour in which employee was engaged does not amount to specific enforcement, directly or indirectly, of obligation to render personal services. It is not just that employer be left to remedy in damages. If restraints were not valid and enforceable only for six months after end of actual employment, as a matter of discretion injunctive relief beyond that period would still be declined as no longer serves a legitimate protectable interest. Declaration that contract remains on foot. Injunction enforcing restraints for a period expiring six months after the end of actual employment.