Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494

Supreme Court New South Wales

Medium Neutral Citation: Hotwork Australia Pty Ltd v Tomkins [2020] NSWSC 494 Hearing dates: 4 May 2020 Date of orders: 07 May 2020 Decision date: 07 May 2020 Jurisdiction: Equity Before: Henry J Decision: (1) Decline to make an order in the terms of paragraph 8(a) of the plaintiff's Amended Notice of Motion filed on 20 April 2020.

(2) List the proceedings in the commercial list for directions at 9.45am on 8 May 2020.

(3) Make orders by consent in accordance with the short minutes of order agreed by the parties and note the undertakings given by the defendants in the terms set out in those short minutes of order. Catchwords: EQUITY — RESTRAINT OF TRADE — Employment – interlocutory injunction application against former director and regional manager - where confidentiality agreement included post-employment non-solicitation restraint - whether employee was employed by the plaintiff - whether serious question to be tried as to reasonableness of the restraint and whether employee is a party to the agreement – balance of convenience – discretionary factors – delay – injunction refused Legislation Cited: Corporations Act 2001 (Cth), ss 182, 183 Restraints of Trade Act 1976 (NSW), s 4 Cases Cited: Aussie Home Loans v X Inc Services [2005] NSWSC 285 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLR 9; [2006] NSWSC 717 Capgemini US v Case [2004] NSWSC 674 Cerlian Pty Limited v Graham Fraser [2008] NSWSC 1016 Dewes v Fitch (1920) 2 Ch 159 Esposito v Commonwealth [2013] FCA 546 Hanna v OAMPS Insurance Brokers Ltd [2010] NSWCA 267 Harlow Property Consultants Pty Ltd v Byford [2005] NSWSC 658 Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343; [2018] NSWCA 163 Kearney v Crepaldi [2006] NSWSC 23 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449 Maggbury Pty Limited v Hafele Australia Pty Limited (2001) 210 CLR 181; [2001] HCA 70 Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104; [2015] HCA 37 Stacks/Taree Pty Limited v Marshall (No 2) [2010] NSWSC 77 Stenhouse Australia Ltd v Phillips [1973] 2 NSWLR 691; [1974] AC 391 Woolworths Ltd v Olson [2004] NSWCA 372 Zuellig Credit Insurance Brokers v Pulver [2000] NSWSC 7 Texts Cited: JD Heydon, The Restraint of Trade Doctrine (Butterworths, 2nd ed, 1999) Category: Procedural and other rulings Parties: Hotwork Australia Pty Ltd (Plaintiff) Jason Edley Tomkins (First defendant) Heat Applications Global Pty Ltd (Second defendant) Heat Applications India PVT Ltd (Third defendant) Representation: Counsel: G Carolan (Plaintiff) N Bender (First and second defendants)