| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 261/09 |
| Hearing date | 31 Jul 2009 - 3 Aug 2009 (2 days) |
| Determination date | 04 August 2009 |
| Member | A Dumbleton |
| Representation | P Muir ; A Drake |
| Location | Auckland |
| Parties | Energi New Zealand Ltd v Gleeson |
| Summary | INTERIM INJUNCTION – Breach of contract – Restraint of trade - Applicant sought to restrain respondent from soliciting applicant’s client (“NZHR”) and employees – Respondent argued restraint of trade and non-solicitation clauses in employment agreement (“EA”) not applicable as applicant repudiated EA – Respondent claimed resigned from employment because applicant repudiated EA – Respondent obtained new employment with competing firm (“T”) and solicited applicant’s employees to work for T – NZHF notified applicant, day after respondent resigned, NZHF would not renew contract with applicant but sought to have work done by T – Applicant claimed arguable whether respondent breached restraint of trade and non-solicitation clauses – Respondent argued no arguable case because applicant repudiated EA therefore EA not enforceable against innocent party – Argued applicant estopped from bringing claim because applicant represented to respondent clauses unenforceable when employment commenced - Authority found evidence supporting respondent breached EA stronger than evidence supporting applicant breached good faith obligations making resignation reasonably foreseeable – Found applicant’s delayed agreement to attend mediation triggered respondent’s resignation, however, applicant gave reasonable explanation for delay - Found insufficient evidence applicant was deliberately dishonest with respondent - Found applicant not estopped because representation was opinion – Found arguable case – Applicant claimed balance of convenience in their favour because real risk respondent would solicit applicant’s clients – Respondent argued applicant delayed bringing application and third party interests put balance in their favour – Authority found balance of convenience and overall justice favoured applicant – Found real risk respondent would solicit applicant’s clients as respondent believed not bound by clauses – Found damages adequate remedy for respondent – Found no evidence on how injunction would affect respondent’s involvement with T – Found applicant’s former employees, now employed at T, would not be affected by injunction – Found delay not prejudicial to respondent and applicant had no opportunity to bring application before NZHF made decision to not renew contract – Interim injunction granted – Parties directed to mediation - Chief Executive Officer |
| Result | Application granted ; Parties directed to mediation ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA s134 |
| Cases Cited | General Billposting Company Limited v Atkinson [1909] AC 118 (HL);Grey Advertising (New Zealand) Ltd v Marinkovich [1999] 2 ERNZ 844;Rock Refrigeration Ltd v Jones [1997] 1 All ER 1 |
| Number of Pages | 10 |
| PDF File Link: | aa 261_09.pdf [pdf 34 KB] |