Total RISC Technology Pty Ltd v Cannings & Anor [2010] NSWSC 1124

New South Wales Supreme Court

CITATION : Total RISC Technology Pty Ltd v Cannings & Anor [2010] NSWSC 1124

HEARING DATE(S) : 23 September 2010, 24 September 2010

JUDGMENT DATE : 24 September 2010

JUDGMENT OF : Bryson AJ at 1

DECISION : 1. I note and accept the undertaking of the first defendant to the Court, altered as I have altered it in red, so as to have permanent effect, as to paragraph 1 in its effect, and set out in a document dated 8 July 2010, identified by Justice Pembroke. 2. I give judgment for the defendant with costs.

CATCHWORDS : CONTRACT - employment contract - restraint of trade clause - first employer obtained clause preventing engagement for 6 months after termination in "any trade or business which directly competes with [first employer"] - employee classed as International Program Manager resigned and went straight to second employer which conducted competing businesses - observations on enforceability of retraint - on construction of clause, "any trade or business" referred not simply to identity of new employer but to trade or business activity in which employee was engaged - on the facts Managed Services was a separate trade or business from new employer's other businesses and employee was engaged only in that separate trade or business - although the end product was similar, the manners of provision were different in ways which customers were likely to regard as significant - consideration of "direct competition" - on the facts the first employer had not shown that there was direct competition - proceedings dismissed

LEGISLATION CITED : Not applicable

CASES CITED : Luminar Lava Ignite Limited v MAMA Group PLC and Anor [2009] CSOH 68 Nike, Inc. v Eugene McCarthy 379 F 3d 576 (9th Cir 2004)