Clear Wealth Pty Ltd v Kwong (No 2) [2012] NSWSC 1233

Supreme Court New South Wales

Medium Neutral Citation: Clear Wealth Pty Ltd v Kwong (No 2) [2012] NSWSC 1233 Hearing dates: 11 - 12 April 2012; 15 - 16 August 2012 Decision date: 05 October 2012 Jurisdiction: Equity Division Before: Rein J Decision: 1. Judgment for the plaintiff against the defendants in the amount of $56,000 plus interest calculated in accordance with Practice Note SC Gen 16. 2. Order that first defendant hand over all copies of and delete from his computer, USB drives and hard drives all files containing client lists of the plaintiff, including but not limited to the following: Client database Aug 2010.csv, Client database Aug 2010.xlsx and CustomerList_430990_2009Apr08_095419.csv. Catchwords: INTELLECTUAL PROPERTY - confidential information - whether client lists were copied by the defendant - where client lists were found on defendant's computer - where client lists were accessed on defendant's home computer - whether defendant used this information to contact clients - where significant portion of defendants' new clients had transferred from the plaintiff - whether information was confidential - where client lists only available to employees of the plaintiff - held that defendants copied and used confidential information of the plaintiff

TRADE AND COMMERCE - restraints of trade - validity and reasonableness - whether clause a restraint of trade - where defendant by contractual clause agreed that restraints were reasonable - three month non-solicitation of employer's clients reasonable to protect the legitimate interests of the employer

DAMAGES - measure of damages for use of confidential information and breach of restraints - whether clients would have changed financial planners regardless of former employee's actions - where employer did not contact clients after employee had left - where employee did not inform clients of who would handle their accounts - 30 per cent discount to allow for by factors outside former employee's actions Legislation Cited: Practice Note SC Gen 16 Restraints of Trade Act 1976 Cases Cited: Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLR 9; [2006] NSWSC 717 Faccenda Chicken Ltd v Fowler [1987] Ch 117 Forkserve Pty Ltd v Pacchiarotta (2000) 50 IPR 74; [2000] NSWSC 979 IceTV Pty Ltd v Ross [2009] NSWSC 980 Jardin and Jardim Investments Pty Ltd v Metcash Ltd (2011) 285 ALR 677 John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995 Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449 Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak (2006) 67 NSWLR 569 NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 Robb v Green [1895] 2 QB 1 Ross v IceTV Pty Ltd [2010] NSWCA 272 Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272 Willis Australia Group Services Pty Ltd v Griggs [2012] NSWSC 659 Category: Principal judgment Parties: Clear Wealth Pty Ltd (Plaintiff) Jason Kenneth Kwong (First Defendant) Your Life Now Pty Ltd (Second Defendant) Representation: Counsel: G Lucarelli (11 - 12 April 2012); R Notley (15 - 16 August 2012) (Plaintiff) J Smith (Defendants) Solicitors: Somerset Ryckmans (Plaintiff) Fai & Co. (Defendants) File Number(s): SC 2011/392406