| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 5/00 |
| Determination date | 19 December 2000 |
| Member | A Dumbleton |
| Representation | PM Muir ; CM Meechan |
| Location | Auckland |
| Parties | Walkers Advertising Ltd v Bettle |
| Summary | INTERIM INJUNCTION - Breach of contract - Restraint of trade - Whether worked in advertising capacity in competition with applicant - Effect on third parties - Undertakings maintaining confidentiality given - Overall justice favoured respondent - Early hearing ordered - Consultant |
| Abstract | This was an unsuccessful application for an interim injunction enforcing a restraint of trade provision.;The respondent was formerly employed by the applicant in an advertising capacity. The respondent's contract of employment provided that for a 6 month period after termination of employment, the respondent would not accept employment from any organisation that, in the reasonable opinion of the company, was a competitor of the applicant. On 10 August the respondent resigned his employment with the applicant and gave the required 3 months' notice. He worked out the majority of his notice but was paid out the balance. On 13 November the respondent entered into a contract to supply his services as a consultant to Grey Worldwide (NZ) Ltd (Greys") and the applicant subsequently sought to restrain the respondent from working for Greys.;HELD: (1) There was a serious question or arguable case for hearing. There were several questions raised by the contradictory nature of the affidavit evidence. The questions included whether the respondent was competing with the applicant and, if there was competition, whether the applicant had any proprietary interest to protect in seeking to restrain the respondent from carrying out the kind of work he did for Greys.;(2) The balance of convenience favoured the respondent. An interim order would require the respondent to stop work and subsequently not receive the remuneration necessary to support his family and himself. A hearing could take place within a few weeks therefore the applicant could better tolerate the situation for that short period of time, rather than the respondent have to break his contractual arrangement and cease work.;(3) The availability of other remedies favoured the applicant. The respondent would be able to fix any loss suffered and the applicant had given an undertaking as to damages. There was no evidence to suggest the applicant could not meet any award made against it.;(4) The overall justice of the case favoured the respondent. An early fixture before the Authority was available and the respondent had given undertakings maintaining the confidentiality of the information he had acquired in relation to the applicant's clients. The interim injunction was therefore declined pending an early hearing." |
| Result | Application dismissed ; Costs reserved |
| Statutes | ERA s174;Illegal Contracts Act 1970 |
| Cases Cited | Grey Advertising (NZ) Ltd v Marinkovich [1999] 2 ERNZ 844;Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129;Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd (No 2) [1985] 2 NZLR 143 |
| Number of Pages | 10 |
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