| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 107/07 |
| Hearing date | 24 Aug 2007 |
| Determination date | 31 August 2007 |
| Member | H Doyle |
| Representation | S England ; B Fletcher |
| Location | Blenheim |
| Parties | Hearing Professionals Marlborough Ltd v Setz |
| Summary | RESTRAINT OF TRADE - Applicant sought interim injunction to enforce restraint of trade - Respondent remained 49% shareholder of applicant - Restraint of trade provision prohibited involvement with competitor within 5 kilometre radius - Respondent went to work for competing business less than kilometre from applicant - Number of applicant’s patient’s transferred to competitor - Respondent contended action not genuinely directed at enforcing restraint, but being used to acquire her shares - Questioned whether any propriety interests remained to be protected as applicant not taking on new clients - Strongly arguable respondent’s new employment breached restraint provision, and arguable therefore that that motivated proceedings - Restraint arguably reasonable given respondent primary audiologist, had managerial role and substantial shareholding - Arguable proprietary interest in goodwill of business - Ongoing loss of patients meant long term damage not able to be assessed accurately - Damages not adequate alternative remedy for applicant but respondent’s lost salary could easily calculated - Respondent planned on taking maternity leave soon - Balance of convenience favoured applicant - Overall justice required interim injunction be granted - Respondent ordered to cease work at competitor until further order of Authority - Audiologist |
| Result | Application granted ; Orders accordingly ; Costs reserved |
| Main Category | Restraint of Trade |
| Cases Cited | Credit Consultants Debts Service v Wilson (No 2) [2007] ERNZ 205;American Cyanamid Co v Ethicon Ltd [1975] AC 396;Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2NZLR 129 (CA). |
| Number of Pages | 8 |
| PDF File Link: | ca 107_07.pdf [pdf 30 KB] |