| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 447 |
| Hearing date | 24 Sep 2013 |
| Determination date | 30 September 2013 |
| Member | E Robinson |
| Representation | M Gould ; B Smith |
| Location | Auckland |
| Parties | UPS Power Solutions Ltd v Gillon |
| Summary | INJUNCTION – RESTRAINT OF TRADE - Applicant sought interim injunction restraining respondent from competing within 100 kilometres of applicant and soliciting or seeking to carry out work for applicant’s clients - Whether applicant indicated restraint of trade provisions not enforceable – Applicant sought undertaking respondent would comply with restraint of trade – Sales engineer |
| Abstract | AUTHORITY FOUND –;INJUNCTION – RESTRAINT OF TRADE: Any representations about unenforceability not binding. Respondent familiar with operation of restraints of trade. Applicant reminded of restraint of trade obligations on final day of work. Arguable case respondent entered into employment relationship knowing employment agreement contained restraint of trade. Respondent key person for establishing and maintaining relationships with Auckland based clients. Respondent had influence over applicant’s clients and potential to entice them away. Arguable case applicant had legitimate proprietary interest in business information. Geographical coverage and duration of restraint reasonable. Confidentiality provisions adequately protect applicant’s business interest in business information. Arguable case for reasonableness and enforceability of restraint of trade. Applicant acted in timely manner seeking to enforce restraint. Damages not adequate alternative remedy. Balance of convenience lies with applicant. Overall justice of case supported interim injunction. Application for injunctive relief granted. |
| Result | Application granted ; Orders made ; Costs reserved |
| Main Category | Restraint of Trade |
| Statutes | ERA s162 |
| Cases Cited | Allright v Canon New Zealand Ltd (2008) 6 NZELR 367;Broadcasting Corp of New Zealand v Nielsen (1988) 2 NZELC 96,040;Credit Consultants Debt Service NZ Ltd v Wilson [2007] ERNZ 205;Fuel Espresso Ltd v Hsieh [2007] ERNZ 60 ; [2007] 2 NZLR 651;Gallagher Group Ltd v Walley [1999] 1 ERNZ 490;Medic Corp Ltd v Barrett [1992] 2 ERNZ 1048 ; [1993] 2 NZLR 122;New Zealand Office Products Ltd v Howard unreported, R Monoghan, 3 Sept 2001, AA124/01;Pottinger v Kelly Services (New Zealand) Ltd (2012) 10 NZELR 1 |
| Number of Pages | 17 |
| PDF File Link: | 2013_NZERA_Auckland_447.pdf [pdf 238 KB] |