BGC Partners (Australia) Pty Limited v Hickey [2016] NSWSC 90

Supreme Court New South Wales

Medium Neutral Citation: BGC Partners (Australia) Pty Limited v Hickey [2016] NSWSC 90 Hearing dates: 2, 3 and 11 February 2016 Decision date: 18 February 2016 Jurisdiction: Equity - Expedition List Before: Stevenson J Decision: Defendant to be restrained until 11 September 2016 Catchwords: CONTRACTS – EMPLOYMENT - RESTRAINT OF TRADE – where contract of employment contained restraints of trade – where restraints of trade were to operate during and post-employment – where employee resigned and sought employment with competitor – application to restrain employee from working for competitor – whether restraint of trade clauses reasonable and valid – legitimate and protectable interests – how long a restraint was reasonable in the circumstances to protect employee's legitimate protectable interests – exercise of discretion as to relief sought; CONTRACTS – EMPLOYMENT –REPUDIATION/TERMINATION – where employee repudiated contract by way of early resignation – where repudiation not accepted by employer and contract affirmed – whether contract still on foot – distinction between contract of employment and relationship of employee/employer – whether employment relationship terminated by resignation; CONTRACTS – INTERPRETATION – implied terms – whether term may be implied in contract of employment that employee can terminate on reasonable notice – where contract already provides express term for termination – whether such term covers the field - whether terms may be implied which contradict express terms Legislation Cited: Restraints of Trade Act 1976 (NSW) Cases Cited: BP Refinery (Westernport) Pty Limited v Hastings (1977) 180 CLR 266 Commercial Plastics Ltd v Vincent [1965] 1 QB 623 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Herbert Morris Ltd v Saxelby [1916] 1 AC 688 Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449 Lindner v Murdock's Garage (1950) 83 CLR 628 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 Tank Lining Corp v Dunlop Industries Ltd (1982) 140 DLR (3d) 659 Tullett Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 852; 175 IR 414 Vandervell Products Ltd v McLeod [1957] RPC 185 Woolworths Ltd v Olson [2004] NSWCA 372 Texts Cited: N Seddon, R Bigwood, M Ellinghaus, Cheshire & Fifoot: Law of Contract, (10th ed 2012, LexisNexis) Category: Principal judgment Parties: BGC Partners (Australia) Pty Limited (Plaintiff) Anthony Hickey (Defendant) Representation: Counsel: J J E Fernon SC with R M Foreman (Plaintiff) R M Goot SC with S E J Prince and B Rauf (Defendant)