| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 138/10 |
| Hearing date | 25 Jun 2010 |
| Determination date | 30 June 2010 |
| Member | H Doyle |
| Representation | B Nathan ; A Shakespeare |
| Location | Christchurch |
| Parties | Kiwis Stat Ltd v Nichols |
| Summary | INJUNCTION - Applicant sought interim injunction to enforce restraint of trade provision in respondent’s written employment agreement - Applicant specialist medical recruitment company that arranged locum jobs for doctors and nurses in Australia and New Zealand - Respondent resigned from applicant and commenced employment with applicant’s competitor - Respondent claimed restraint of trade unenforceable as did not protect legitimate proprietary interest, unreasonably wide, not in public interest to uphold it and were less restrictive interim measures applicant could use - Primary proprietary interests applicant relied on was relationship respondent built up with doctors and certain staff at hospitals in being able to successfully fill vacancy - Respondent claimed while names of doctors in New Zealand readily available information pool of doctors for placement not readily available and limited - Authority found fairly strong arguable case at interim stage that applicant had proprietary interest in terms of trade connection and goodwill with respect to respondent’s personal relationship with and knowledge of doctors qualifications and suitability for placement that entitled to protect under restraint of trade covenant - Found not as strong an argument at interim stage with respect to hospital staff and any proprietary interest - Authority found length of restraint of trade at upper limit as to what was reasonable - Found length of time could be modified to be more reasonable - Found geographic limits arguably reasonable - Found applicant had arguable case for substantive relief - Respondent claimed employment agreement contained liquidated damages provision and new employer had stated would meet any damages awarded - Found would be difficult to calculate damages - Found would be difficult to detect and prove breach of confidentiality provision - Found alternative remedy or alternative protection by express confidentiality provision not adequate protection - Respondent claimed balance of convenience in her favour as if restraint of trade enforced would be unable to work - Found applicant had given undertaken as to damages - Found balance of convenience evenly balanced - Respondent accepted restraints clear and was reminded of them when resigned - Found no evidence respondent entered agreement with any undue influence - Found substantive investigation meeting could be held in three weeks – Found while restraints would probably need modification overall justice supported granting of interim injunction - Injunction granted - Respondent not to be employed by new employer until final determination - Locum Coordinator |
| Result | Application granted ; Costs reserved |
| Main Category | Injunction |
| Statutes | Illegal Contracts Act 1970 s8 |
| Cases Cited | Allright v Canon New Zealand Ltd unreported, Couch J, 3 Dec 2008, AC 47/08;Broadcasting Corporation of New Zealand v Nielsen (1988) 2 NZELC 96,040;Fuel Espresso Ltd v Hsieh [2007] ERNZ 60 ; [2007] 2 NZLR 651;Gallagher Group Ltd v Walley [1999] 1 ERNZ 490;Lindner v Murdock's Garage (1950) 83 CLR 628 |
| Number of Pages | 11 |
| PDF File Link: | ca 138_10.pdf [pdf 38 KB] |