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[2026] NSWSC 678
Supreme Court of NSW
2026-06-05
Rees J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Merchant Payment Solutions Pty Ltd t/as Zero Payments v David Hedditch (in his own capacity and as trustee for the Curleyhedd Trust) [2026] NSWSC 678
Hearing dates: 5 June 2026
Date of orders: 5 June 2026
Decision date: 05 June 2026
Jurisdiction: Equity - Commercial List
Before: Rees J
Decision: Interim injunction granted.
Catchwords: INTERIM INJUNCTION — restraint of trade — plaintiff signs up merchants with Tyro for EFTPOS facilities — plaintiff uses sales agents to source merchants — restraint of trade prohibits agent soliciting plaintiff’s merchants for 12 months after termination — defendant was former sales agent of plaintiff — plaintiff terminates agency agreement — defendant does not challenge restraint but says no evidence he “solicited” willing customers — whether serious question to be tried — where balance of convenience lies — interim injunction granted.
Cases Cited: IceTV v Ross [2007] NSWSC 635
Ridgeway International Ltd v McCullum (Supreme Court (NSW), Bryson J, 9 April 1998, unrep)
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287
Tyro Payments Ltd v Kounta Pty Ltd [2023] NSWSC 1384
Category: Procedural rulings
Parties: Merchant Payment Solutions Pty Ltd t/as Zero Payments (Plaintiff) David Hedditch (in his own capacity and as trustee for the Curleyhedd Trust) (First Defendant) Heddway Pty Ltd (Second Defendant)
Representation: Counsel:
N Bender SC / BW Smith (Plaintiff)
D Thomas (First and Second Defendants)
Solicitors:
Kardos Scanlan (Plaintiff)
Romans and Romans Lawyers (First and Second Defendants)
File Number(s): 2026/91858
HER HONOUR: This is an application to extend an interim restraint. Hmelnitsky J made orders on 29 May 2026 after a contested hearing, restraining the first and second defendants until 5:30pm today. The question is whether this restraint should be continued until final hearing.
The plaintiff relied on the evidence of its solicitor. The defendants relied on the evidence of the first defendant, David Hedditch, and prospective customers, Donny Gambaro and Angus Telford. In short, the prospective customers say that they wish to do business with Mr Hedditch, not because he has approached them for their custom, but because of their longstanding relationships with him. Mr Gambaro went to high school with Mr Hedditch. Mr Telford has done business with Mr Hedditch since 2015.
The plaintiff, Merchant Payment Solutions Pty Ltd trading as Zero Payments, has a referral relationship with Tyro Payments Ltd. Tyro supplies EFTPOS machines to businesses or merchants. Zero Payments signs up merchants with Tyro in return for a commission. In turn, Zero Payments uses sales agents to source merchants and those agents are also paid a commission. Mr Hedditch was one such agent. The second defendant was his corporate vehicle.
The plaintiff terminated Mr Hedditch's agency agreement on 18 December 2025. The day before and the day after that termination, emails passed between Mr Hedditch and a competitor of the plaintiff, MX51 Pty Ltd. Mr Hedditch advised MX51:
“I am meeting with Venue Plus on Monday, and it would be great to provide them some detail on the [rewards] program. Also, the Gambaro Group will be very interested in this program.”
MX51 anticipated providing a pitch pack, “we want to move quickly to assist you with the deal conversion”. Mr Hedditch said that VenuPlus Group was associated with Adrian Rosato. There is no affidavit from this prospective customer. Mr Hedditch says that his first contact with Mr Rosato was on 1 April 2026, that is, four months after these emails.
On 29 January 2026, Mr Hedditch updated MX51 on his progress:
“Looking to get Gambaro Group across the line. They have the following [5] sites …
Donny Gambaro is keen to move but he has been offered a switching incentive … to move to another provider. … Is MX51 able to offer this upfront payment? FYI: I will be offering him a rebate as well to assist in getting this across the line.”
These proceedings were commenced in March 2026. The plaintiff sought to enforce the restraint of trade in the agency agreement, which required the agent not to "solicit, induce, or otherwise attempt to persuade any Merchant to become a Merchant of any other entity providing a service the same or substantially the same as a Tyro Product."
The defendants did not suggest that the restraint is unenforceable. Rather, there was no breach of the restraint; whatever Mr Hedditch did, it did not meet the description of that clause.
On the first return of the Summons on 9 March 2026, directions were made to proceed promptly to determination of the liability questions in these proceedings. But, on 1 April 2026, the proceedings took a different course. The defendants gave undertakings to the Court to abide by the restraint until the earlier of 23 December 2026 or the conclusion of a final hearing. In the meantime, the defendants agreed to give five clear business days’ notice of any intention to sign up any merchant who was reasonably known to be a merchant of the plaintiff, or had been a merchant of the plaintiff within the last 12 months. The matter would proceed by way of pleadings. That is, the separate question was put to one side in favour of the whole proceedings moving forward in the usual manner, with a notice regime in place.
In late April 2026, Mr Hedditch sent three text messages to Mr Gambaro, asking to meet. On 30 April 2026, Mr Hedditch emailed a statement to Mr Gambaro for him to sign, acknowledging that he had not been solicited or induced by Mr Hedditch.
On 23 May 2026, Mr Hedditch gave five days’ notice to the plaintiff of his intention to sign up five clients associated with Mr Gambaro. On 27 May 2026, the defendant gave five days’ notice in respect of a further 11 VenuPlus customers. This prompted the plaintiff to bring an application for an interim restraint, which brings us to today. On 1 June 2026, Mr Rosato emailed the plaintiff, advising that he had deferred dealing with Mr Hedditch until he had been “told by him very recently that [the plaintiff’s legal action] was resolved”, and then invited Mr Hedditch to tender for his account.
The question for the Court is whether there is a serious question to be tried, and where the balance of convenience lies. As to whether there is a serious question to be tried, the defendants do not suggest that the restraint is unenforceable, but simply that there is no evidence that the restraint has been breached. It is suggested that the affidavits relied upon by the defendants indicate that the customers came to Mr Hedditch, and not the other way around.
I need to be satisfied that there is a serious question to be tried. It seems that the question at hand is one of fact and law. I am told by the plaintiff's senior counsel, and I accept, that the evidence of Mr Hedditch, Mr Gambaro and Mr Telford will be challenged at a final hearing. It does appear, from the contemporaneous records to which I have been taken, that some questions may fairly be put to those witnesses challenging their version of events. That is, it does seem to me that there will be an issue of fact as to who approached who and when.
As to whether what was done meets the description of the restraint clause, counsel agreed that it is not necessary for Mr Hedditch to have made the first approach to these customers for his actions to fall within the term "solicit", as that term was considered by Brereton J in IceTV v Ross [2007] NSWSC 635 at [44]-[48], and Bryson J in Ridgeway International Ltd v McCullum (Supreme Court (NSW), Bryson J, 9 April 1998, unrep) at 22.
I am satisfied that there is a serious question of fact and law as to whether the restraint clause was breached. It is no answer to say that the defendant's witnesses were not cross-examined on this application. I would not expect them to be.
The second question is, where does the balance of convenience lie? I considered this question in Tyro Payments Ltd v Kounta Pty Ltd [2023] NSWSC 1384, albeit that was an application for a permanent injunction and so the context was slightly different. But I there noted that, in cases where a negative covenant is sought to be enforced, damages will rarely be considered an adequate alternative remedy to an injunction: at [148]-[150]. In particular, “It is likely that there will be substantial difficulty in establishing causation between any loss of business and any actions of the party the subject of the restraint, and a further difficulty in calculating the quantum of any damage arising from any loss of business”: at [148].
In that case, I was also satisfied that the defendant was in breach of contract, and unless injuncted, would continue its efforts to solicit merchants: at [150]. I noted the observations of Lindley LJ in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, “The Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict”: at 315-6.
In considering the balance of convenience here, I have regard to the following matters. First, the affidavits relied upon by the defendants indicate that the proposed customers are deeply loyal to Mr Hedditch. In that event, it might be thought that if the defendants are successful at trial, that is, they establish that there has been no breach of the restraint, then those customers may well be expected to bring their custom to the defendants directly. There will be no loss other than for the period over which any interim injunction applied.
Second, the defendants submit that Mr Hedditch is a sole trader. It appears that Mr Hedditch is embarking on a new business. The annual loss of revenue to the plaintiff for the customers notified on 23 and 27 May 2026 is $226,543.07 per annum. The plaintiff is probably better placed to pay an award of damages if one is made against them at the conclusion of a trial, than the defendants would be able to pay an award of damages if they are permitted to inflict damage between now and then, and are ultimately found to have been in breach of contract.
Having regard to these matters, that is, first, the nature of these particular kinds of cases, second, the loyalty of the defendants’ proposed customers, and third, the comparative ability of the parties to meet any award of damages, I consider that the balance of convenience lies in favour of the plaintiff. For this reason, I will extend the interim injunction up to the conclusion of a final hearing.
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Merchant Payment Solutions Pty Ltd t/as Zero Payments
David Hedditch (in his own capacity and as trustee for the Curleyhedd Trust)