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Restraint of Trade in Australia—The Ultimate Guide

What is a restraint of trade?

Restraint of trade clauses can be categorised into:

  1. non-compete clauses;
  2. non-solicitation clauses; and
  3. trade secret / confidential information clauses.
 

Restraints of trade are relevant at all stages of the business lifecycle, including when:

  1. employing people or engaging contractors;
  2. buying or selling a business or shares in a private company;
  3. starting a business with others; and
  4. entering or exiting a franchise system.
 

To be enforceable, a restraint must protect legitimate interests such as goodwill, trade secrets or confidential information. Restraints against mere competition are not enforceable.

Types of restraints

Non-compete clauses

Non-compete clauses usually seek to prohibit a person from being involved in a competing business.

In employment agreements, non-compete restraints are usually only enforceable against senior employees in possession of confidential information or trade secrets.

Non-solicitation clauses

Non-solicitation clauses do not seek to prohibit a person from working for a competitor or starting their own business, but rather they seek to prohibit a person from encouraging clients or employees to follow them. There are three types of “non-solicitation” clauses. They are:

  1. restraints on soliciting clients;
  2. restraints on being employed by clients; and
  3. restraints on soliciting employees, contractors or suppliers.
 

To be enforceable, the restrained person must be in a position to gain trust and confidence so as to be relied on in a client’s affairs and there must be a possibility that the person  may take the
client’s business with them.

The likelihood of successfully enforcing a non-solicitation restraint against an employee increases with seniority and pay.

Trade secret / confidential information clauses

Trade secret / confidential information clauses seek to prohibit the restrained party from exploiting trade secrets or confidential information acquired in their former position.

Section 183 of the Corporations Act 2001 (Cth)

Employees (as well as directors and other officers) of corporations are also prohibited from using information to gain an advantage for a person or cause detriment to the corporation under section 183 of the Corporations Act 2001 (Cth).

Determining enforceability

General principles

The overriding principle to keep in mind is that the restraint must be reasonably necessary to protect the other party’s legitimate interests.
 

There are three questions of reasonableness:

  1. Is the prohibited activity reasonable?
  2. Is the restraint period reasonable?
  3. Is the restraint area reasonable?
 

The validity of a restraint is to be determined at the time the contract was entered.

Severability and the Restraints of Trade Act 1976 (NSW)

Except in New South Wales, the starting point is that restraints of trade are presumed to be void. It is on the enforcing party to satisfy a court that a restraint goes no further than reasonably necessary.

Restraints are most commonly drafted in severable (or cascading) terms, which list a number of possible combinations of restraint areas, restraint periods and restrained activities. This allows a court to invoke the “blue pencil” rule, which allows the court to strike out the unenforceable parts of the restraint, and leave the enforceable parts standing.

In New South Wales, restraints of trade are not presumed to be void. The Restraints of Trade Act 1976 (NSW) allows the Supreme Court of New South Wales to uphold a restraint to the extent it is reasonable, even if the clause is not drafted in severable (or cascading) terms.

Employee restraints vs. goodwill restraints

Employee restraints, as the name suggests, are restraints in employment agreements. Employee restraints are less readily enforceable because there is usually an inequality of bargaining power between employers and employees, and most of the time the employee does not receive additional compensation for giving the restraint.

A goodwill restraint is a restraint included in a commercial agreement (such as a business sale agreement, share sale agreement, shareholders’ agreement or franchise agreement). Courts are more willing to enforce goodwill restraints because usually the person giving the restraint has received some form of payment or other consideration for giving the restraint and there usually is not an inequality of bargaining power.

Franchise restraints

Section 23 of the Franchising Code of Conduct prevents restraints in franchise agreements having effect after the agreement expires if:

  1. the franchisee has sought to extend the agreement;
  2. the franchisor does not extend the agreement;
  3. the franchisor does not compensate the franchisee for goodwill; and
  4. the other conditions set out in section 23 of the Franchising Code of Conduct are met.

Implied non-solicitation obligation in business sale agreements

Where no express restraints are included in an agreement for the sale of a business, there will be an implied obligation on the seller to not depreciate what has been sold. Where such an obligation is implied, it will be limited to not soliciting customers of the business sold. There will be no prohibition on setting up a competing business and accepting custom. This implied obligation will be negatived where an agreement contains express restraints.

Recent cases

Employment contracts

Dundoen Pty Ltd v Richard Wills (Real Estate) Pty Ltd [2020] NSWSC 15

The Supreme Court of New South Wales granted an interim injunction restraining a senior property manager from starting employment with a competitor pending a final hearing

Background

  1. The employee had become employed by the employer where the employer bought a rent roll from the employee’s former employer for $1.3 million
  2. The employee commenced employment on 31 October 2016, but had not signed an
    employment agreement with restraints until 23 April 2019
  3. The employee was made redundant on 12 November 2019
  4. The employee did not receive any additional financial benefit for agreeing to the
    restraints
 
Restraints in dispute
  1. A three year, 15-kilometre non-compete restraint
  2. A three year non-solicitation and no dealing restraint.
 
Held

 

  1. The judge granted an interim injunction restraining the employee from starting employment with a competitor pending a final hearing because the protection afforded by non-solicitation and confidentiality provisions is unlikely to be perfect because it is often difficult to prove a breach. Although the employee had given back copies of customer lists and databases, such information would be retained in her memory and there was a risk she may inadvertently use that information for the benefit of her new employer and to the detriment of her former employer
  2. The judge observed that the non-compete may be enforceable, but the non-compete restraint may be read down to less than three years, and possibly less than 12 months. The judge further observed that while there may be questions about the reasonableness of a three-year restraint for the non-solicitation and no dealing restraint, 12 months may be reasonable

Business sale agreements

GBAR (Australia) Pty Ltd v Brown [2020] QSC 14

The Supreme Court of Queensland refused to enforce three-year non-compete restraints contained in the standard REIQ Contract Business Sale (Second Edition), an employment agreement and a settlement agreement

Background

  1. GBAR (Australia) Pty Ltd (GBAR) bought an asbestos removal business from Brown & Cremin Pty Ltd (B&C) for $2.454 million
  2. The business sale contract was in the form of the REIQ Contract Business Sale (Second Edition) with special conditions annexed
  3. Mr Brown, who controlled B&C, was employed by GBAR from completion of the business sale
  4. B&C owned 20% of GBAR
  5. After B&C exited GBAR as shareholder and Mr Brown exited as an employee, Mr Brown set up a new competing company
  6. The evidence revealed that Mr Brown had not solicited clients from GBAR, but they had left GBAR on their own accord

Restraints in dispute

  1. A three-year, Queensland-wide non-compete restraint contained in the standard REIQ Contract Business Sale (Second Edition)
  2. Three-year, Queensland-wide non-compete and non-solicitation restraints included in Mr Brown’s employment agreement
  3. A three-year, Australia-wide non-compete clause included in a settlement agreement whereby B&C exited GBAR as shareholder and Mr Brown exited as an employee   

Held

  1. The non-compete clause included in the REIQ Contract Business Sale (Second Edition) was not enforceable against B&C because existing customers returned to GBAR for Mr Brown’s experience and reputation and GBAR failed to restraint Mr Brown personally. Further, the non-compete clause could not be enforced directly against Mr Brown because he was not a party to the business sale contract
  2. The enforceability of the restraints in the employment agreement were not determined by reference to the usual inequality of bargaining power between employer and employee, but rather they were assessed in light of the broader commercial transaction effected by the business sale contract. A three-year, Queensland-wide non-compete restraint was assessed to be unreasonable, but it was not necessary to reach any conclusion because the parties had agreed to expand the restraint obligation in the settlement agreement from Queensland to Australia.
  3. As to the enforceability of the non-compete restraint in settlement agreement, its validity was assessed by the principles relating to a restraint between an employer and an employee, rather than those relating to the sale and purchase of a business, because the settlement agreement included no additional compensation for the restraint. The three-year, Australia-wide non-compete restraint was not enforceable because seeking to restraint Mr Brown from working anywhere in Australia went beyond restricting Mr Brown from working in those places where GBAR traded. The judge overserved the non-compete clause would have still been unenforceable even if it was assessed by the principles relating to the sale and purchase of a business 

Shareholders’ agreements

Findex Group Ltd v McKay [2019] FCA 2129

The Federal Court of Australia held that restraints in a shareholders’ agreement were binding on an individual even though that individual did not sign the shareholders’ agreement in his personal capacity, but the restraints were unenforceable due to being too broad

Background

  1. Mr McKay’s entity, Vandaman Pty Ltd (Vandaman) was a shareholder of Civic Financial Planning Pty Ltd (Civic)
  2. Findex Group Ltd had become a shareholder of Civic where it bought 60% of the share capital from the existing shareholders (including Vandaman) for a total of $11 million. Vandaman received $2.153 million
  3. The shareholders’ agreement took effect from completion of the above share transaction
  4. Although the principals of each shareholder were specified as a party to the shareholders’ agreement, the final draft of the shareholders’ agreement only had signature blocks for them to sign for their shareholding entities. There were no signature blocks for the principals to sign in their personal capacity. These signature blocks were, however, included in previous drafts
 
Restraints in dispute

 

  1. A non-solicitation restraint
  2. A non-acceptance restraint
  3. A non-interference restraint

 

The maximum restraint area was the ACT.

The maximum restraint period was five years.

Held

  1. Mr McKay was personally bound by the restraints in the shareholders’ agreement
  2. The restraints failed because the restrained conduct and persons caught by the restraints were too complicated (for example, a great-grandchild of a spouse of a beneficiary of a trust of which Vandaman is or has been at any time a trustee would have been caught by the restraints). Further, the restraints could not be saved by severing parts of the restraints
  3. The judge observed that, if the restraints were enforceable, then a maximum restraint area covering the ACT would be reasonable, as the business was conducted in that area. The judge further observed that a restraint period of five years would be reasonable.
  4. The court also considered section 183 of the Corporations Act 2001 (Cth), but had found Mr McKay had not contravened that section.

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