IceTV v Duncan Ross & Ors [2007] NSWSC 635

New South Wales Supreme Court

CITATION : IceTV v Duncan Ross & Ors [2007] NSWSC 635

HEARING DATE(S) : 28 May 2007

JUDGMENT DATE : 3 July 2007

JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

DECISION : (1) Upon usual undertaking as to damages, Order that until hearing or further order defendants be restrained from: (i) until 4 October 2007, carrying on or otherwise being engaged or involved in any business similar to or competitive with business of plaintiff carried on during twelve month period prior to 4 October 2006; (ii) until 4 October 2007, canvassing or soliciting custom of any person who had entered into discussions or negotiations with plaintiff during twelve month period prior to 4 October 2006; (iii) divulging or permitting to be divulged to any person by any means confidential information, in any form, relating to the plaintiff. (2) Order that costs of motion be plaintiff's costs in proceedings.

CATCHWORDS : RESTRAINT OF TRADE – Employer and employee – Chief Executive Officer and Chief Technical Officer of media technology company – Construction – whether "business" of employer as carried on in twelve months prior to termination of employment included a line of business which employer intended and was exploring opportunities to pursue but had not yet commercialised – whether restraint on "soliciting" contravened when initial approach made by customer but former employee then encourages customer – Validity – customer connection – where CEO was responsible for employer's contacts with customers and CTO was responsible for its technology – confidential information – where employer acquired its assets and undertaking including intellectual property from insolvent administration of company of which employees were shareholder and CEO – Reasonableness – where restraint operated in event of termination by employer otherwise than for cause – Area – Duration. INJUNCTIONS – Interlocutory injunctions – Laches – where no prejudice from delay – Balance of convenience – relative strengths of case where interlocutory determination would practically determine the case.