NP GENERATIONS P/L T/AS LJ HOOKER v FENELEY No. SCGRG-00-242 [2000] SASC 240

MULLIGHAN J The appellant carries on business as a real estate agent and rental property manager at Blackwood. The respondent was employed by the appellant from 26th August 1996 until 3rd March 1999 as the manager of its rental property business. After the respondent left that employment, the appellant brought an action in the Magistrates Court against her for damages for breach of the contract of employment and for delivery up of certain documents, which action was defended by the respondent.

The action came to trial before a learned Magistrate on various dates in February 2000. On 3rd March 2000 the learned Magistrate entered judgment for the respondent and dismissed the claim. The appellant appeals against that judgment.

Mr Craggs and his wife are the directors and shareholders of the appellant which obtained the franchise of LJ Hooker at Blackwood in 1997 which had previously been owned by Cragg's father. The respondent commenced her employment with the previous owner but continued to work in the business after it was acquired by the appellant. The rental property part of the business was extensive with the management of about 140 properties in 1999. Commission was charged on the rent received with respect to the properties. The respondent was busy in her work. The management of the properties fell largely to her and involved periodic and often regular contact with owners of the properties and tenants and other duties.

The relationship between Craggs and the respondent deteriorated to the extent that on 3rd March 1999 she gave notice of two weeks of her resignation. At 5.00 pm on that day Craggs told her to leave and handed her a letter which terminated her services immediately. The issues raised on this appeal do not require consideration of the matters in issue between Craggs and the respondent as to the nature, and cause, of the problems between them. It is sufficient to say that they were getting on badly and each had substantial complaints about the working style and conduct of the other.

The learned Magistrate found that at the time of her resignation and immediately thereafter the respondent did not expect to take employment elsewhere. However, she was living with a partner who conducted his own real estate business and she had decided to commence employment with him by 8th March 2000.

Whilst working with the appellant, the respondent kept a diary for the year 1999 and an address book. The learned Magistrate found that the diary and address book contained information written by the respondent including names, addresses and telephone numbers of owners of rental properties which she had managed during her employment by the appellant. In the course of her work, she used the diary and address book extensively and usually carried them with her. A co-worker, Ms Simpson, possessed a similar book. At no time did the respondent keep the diary or address book secret. The address book was used when she was at the office or on the road.

On 4th March 1999, the day after her resignation, the respondent telephoned eight of the property owners and a man by the name of Leith, who was a plumber and had worked for the appellant carrying out maintenance work on the various properties. She said in evidence that she had worked closely with these people and she wanted to tell them that she had left her employment with the appellant as she did not want them speculating about where she had gone. Her dismissal had prevented her from arranging for the transition of her work to her successor. Also, she said that if anything went wrong with any of these properties after her employment was terminated and before her successor commenced work, she did not want to be associated with problems experienced by the property.

The learned Magistrate made the finding that the respondent had a relationship of "great personal trust" with these property owners and that her contacting them was appropriate. He found that she did not solicit them to engage her or a future employer to manage their properties, a finding he was prepared to make beyond reasonable doubt. He went on to say:

"I find that at all times the preliminary and overriding motive for each of the landlords to depart, with their business, from the [appellant] and to repose that business in the hands of the [respondent] was almost overwhelmingly on the basis that the defendant was an honest, efficient, professional, first class, excellent, and most pleasant and amiable property manager - some qualities with which it would seem Craggs has lately become unacquainted."

This last observation is a reflection of the adverse view the learned Magistrate took of Craggs.

There is one further factual matter which should be mentioned. The appellant kept what was called a "rent roll" in connection with its business as a property manager. This roll contained relevant information about the rental property owners and their properties to enable the business to be conducted effectively. It was the responsibility of the respondent to keep it up to date. She gave the necessary information from time to time to another member of the staff who entered it into the rent roll.

The respondent was adamant that at no stage did she solicit business from any of these property owners. She merely told them that she was sorry to be leaving the appellant and that the circumstances of her departure were unfortunate.

The learned Magistrate found that on about 12th March 1999 the respondent sent a letter to 46 owners of rental properties managed by the appellant, all written on plain note paper in her own hand, with some minor variations, in the following terms:

"Dear [name inserted] This short courtesy note is to advise you that I am no longer at L.J. Hooker - Blackwood. I am writing to let you know how much I enjoyed working with you and managing your property. It has been a pleasure to represent your property interests. King regards, Lyn Feneley."

The exhibits before me are similar letters but not this letter. However, I expect that it also contained the address and telephone number of the respondent with the consequence that any property owner wishing to contact her could do so.

Following these events, the eight property owners personally contacted by the respondent terminated their arrangements with the appellant and established property rental arrangements with the respondent which, I assume, commenced after she began to work for her partner. Between them they owned eleven properties in all. Some of the property owners gave evidence and the learned Magistrate summarised their evidence by saying that all of them appreciated the respondent contacting them, they had nothing but the highest regard for her and they regarded her as conscientious and scrupulous in the discharge of her duties. He went on to say that the common thread of that evidence was that the respondent was a superb property manager and they were not prepared to leave their properties with the appellant without her working there. Furthermore, the decision of each of them had been made without any "prompting, enticement, allurement or any other solicitation" by the respondent. The learned Magistrate accepted this evidence.

The respondent wrote information obtained from files, and presumably the rent roll, into her address book so that she could contact property owners and tenants at all times, including when she was out of the office and after business hours without having to consult records in the office.

It was the appellant's case that there were implied terms of the employment agreement with the respondent that confidential information which she obtained during employment would remain confidential at all times including after the contract of employment ceased. Further implied terms alleged were that she would not use confidential information for her own purposes during or after the period of employment, that she would act towards the appellant with good faith and fidelity and would not deprive the appellant of its property or use it except for the purposes of its business.

The appellant claimed the respondent was in breach of the contract of employment in that she used confidential information obtained during the course of employment and that she breached an obligation to act towards the appellant with good faith and fidelity. It was alleged that the information contained in the rent roll and other records was confidential information and the use of that information from the address book to contact the property owners constituted the breach of the implied terms of the contract. The loss of the business of the eight property owners resulted in a financial loss to the appellant which was caused by the breach of contract.

At the trial before the learned Magistrate, the appellant called Mr Pamula, a valuer. By reference to previous sales of rent rolls, he expressed the value of the property management component of the appellant's business was in the order of $1.80 to $1.00 of gross rental management fees and that the value of the loss of the business of the properties which were withdrawn from the appellant after the respondent left the employ of the appellant was $14,500.

The learned Magistrate held that the information which the respondent kept in her address book and in her memory about the property owners and their properties did not have the status of confidential information. He found that information in the rent roll was available to all staff of the appellant and that another employee, Ms Simpson, had a book similar to the respondent's address book with much the same information recorded in it. The contractual relationship between the property owners and the appellant did not impose confidentiality. The respondent did not copy the information from the rent roll into the address book surreptitiously. She kept the information in the address book with the knowledge of the appellant and much of that information she had memorised in any event. He went on to say:

"In my view, that merely signifies and confirms that such information was to be regarded as part of [the respondent's] ordinary stock of acquired skill and experience which she was free to use for her own purposes after the termination of her employment. Whilst I believe that the Rent Roll constituted an important part of Hooker's assets - especially as part of its goodwill where landlords had a long term and enduring relationship with Hooker for the management of their rental properties - I do not think that the information on the Rent Roll as extracted by Feneley for her daily use had any greater significance than that. It may be that it represented 'property' of the [appellant]. But for the reasons I have previously outlined I do not consider that the information was of such a nature as to justify legal protection in the nature of the claim in this matter. As has been said on a number of occasions, the courts will subject 'claims of confidentiality against former employees to closer scrutiny because of the policy which underlies the principle - the public interest which coincides with the employees own interest 'in preventing him, on the one hand, from being deprived of the opportunity of earning his living, and in preventing the public on the other hand from being deprived of the work and service of a useful member of society.'"

The learned Magistrate summarised his findings as follows:

1 The information in the address book and diary was not confidential information that "deserved" the protection of the law upon the termination of the employment of the respondent.

2 The contract of employment did not include a term or condition of restraint of trade.

3 Upon her employment with the appellant ceasing, the respondent was free to compete with the appellant in the business of property management.

4 Her telephoning the eight property owners on 4th March 1999 and the sending of the 46 letters to other property owners was not in breach of any duty owed by the respondent to the appellant.

5 Each of the agreements between the eight property owners and the appellant could be terminated upon notice of 60 days from each of them to the appellant.

6 The eight landlords who did terminate their respective contracts did so lawfully.

7 The names, addresses and telephone numbers of the eight landlords were not trade secrets of the appellant.

8 The use of the names and addresses of the eight property owners by the respondent was not in breach of any duty known to law."

Consequently, the learned Magistrate found that the respondent was not in breach of the contract of employment and dismissed the appellant's claim.

The first ground of appeal is that the learned Magistrate erred in law in holding that the use by the respondent of the information in the address book did not constitute any breach of duty known to the law.

There was no written contract of employment between the parties but the existence of a contract of employment cannot be doubted and it may be accepted that there were implied terms of that contract relevant for present purposes. One implied term is that during the continuance of the employment, the respondent would act in the appellant's interests "and not use the time for which [she] is paid by the [appellant] in furthering her own interests": Wessex Dairies Limited v Smith [1935] 2 KB 80 at 84, 87. She had to look after the appellant's interests and not her own. This case is also authority for the proposition that during the period of employment a servant may not solicit customers for a future time when the employment has ceased and the servant has established his or her own business. However, that is not to say that an employee may not solicitor his former master's customers after the employment has ceased. As Maugham LJ said, having acknowledged that a servant undertakes to serve his master with good faith and fidelity, at p89:

"First, after the employment terminates, the servant may, in the absence of special stipulation, canvass the customers of the late employer, and further he may send a circular to every customer. On the other hand, it has been held that while the servant is in the employment of the master he is not justified in making a list of the master's customers, and he can be restrained, as he was in Robb v Green [1895] 2 QB 1, from making such a list, or if he has made one, he will be ordered to give it up. But it is to be noted that in Robb v Green the defendant was not restrained from sending out circulars to customers whose names he could remember. Another thing to be borne in mind is that although the servant is not entitled to make use of information which he has obtained in confidence in his master's service he is entitled to make use of the knowledge and skill which he acquired while in that service, including knowledge and skill directly obtained from the master in teaching him his business. It follows, in my opinion, that the servant may, while in the employment of the master, be as agreeable, attentive and skilful as it is in his power to be to others with the ultimate view of obtaining the benefit of the customers' friendly feelings when he calls upon them if and when he sets up business for himself. That is, of course, where there is no valid restrictive clause preventing him doing so."

In Faccenda Chicken Ltd v Fowler & Ors [1987] 1 Ch 117, the Court of Appeal, having said that while the employee remains in the employment of the employer, the obligations of the employee are included in the implied term which imposes a duty of good faith and fidelity, went on to say (at pp135-136):

"... that the duty of good faith will be broken if an employee makes or copies a list of the customers of the employer for use after his employment ends or deliberately memorises such a list, even though, except in special circumstances, there is no general restriction on an ex-employee canvassing or doing business with customers of his former employer: see Robb v Green [1895] 2 QB 315 and Wessex Dairies Ltd v Smith [1935] 2 KB 80."

As to the conduct of an employee after the employment has ceased, the Court said at p136:

"The implied term which imposes an obligation on the employee as to his conduct after the determination of the employment is more restricted in its scope than that which imposes a general duty of good faith. It is clear that the obligation not to use or disclose information may cover secret processes of manufacture such as chemical formulae (Amber Size and Chemical Co Ltd v Menzel [1913] 2 Ch 239), or designs or special methods of construction (Reid & Sigrist Ltd v Moss and Mechanism Ltd (1932) 49 RPC 461), and other information which is of a sufficiently high degree of confidentiality as to amount to a trade secret. The obligation does not extend, however, to cover all information which is given to or acquired by the employee while in his employment, and in particular may not cover information which is only 'confidential' in the sense that an unauthorised disclosure of such information to a third party while the employment subsisted would be a clear breach of the duty of good faith."

"In order to determine whether any particular item of information falls within the implied term so as to prevent its use or disclosure by an employee after his employment has ceased, it is necessary to consider all the circumstances of the case. We are satisfied that the following matters are among those to which attention must be paid: (a) The nature of the employment. Thus employment in a capacity where 'confidential' material is habitually handled may impose a high obligation of confidentiality because the employee can be expected to realise its sensitive nature to a greater extent than if he were employed in a capacity where such material reaches him only occasionally or incidentally. (b) The nature of the information itself. In our judgment the information will only be protected if it can properly be classed as a trade secret or as material which, while not properly to be described as a trade secret, is in all the circumstances of such a highly confidential nature as to require the same protection as a trade secret eo nomine. The restrictive covenant cases demonstrate that a covenant will not be upheld on the basis of the status of the information which might be disclosed by the former employee if he is not restrained, unless it can be regarded as a trade secret or the equivalent of a trade secret: see, for example, Herbert Morris Ltd v Saxelby [1916] 1 AC 688, 710 per Lord Parker of Waddington and Littlewoods Organisation Ltd v Harris [1977] 1 WLR 1472, 1484 per Megaw L.J."

In Peninsular Real Estate Ltd v Harris (1992) 2 NZLR 216 the Court had to consider an application for an interim injunction to restrain former employees of a real estate firm from using information obtained from their former employer with whom they were competing. Tipping J accepted the following at pp218-219:

"1 In the absence of a valid restraint of trade clause a former employer cannot prevent a former employee simply from competing: see Stenhouse Australia Ltd v Phillips [1973] UKPC 1; [1974] AC 391, 400 per Lord Wilberforce and Target Recruitment Services Ltd v Lewin [1987] NZHC 288; (1988) 2 NZELC 95,704, 95,706 per Hillyer J. There are no doubt many other authorities for this fairly elementary proposition. 2 A former employer cannot normally therefore in such circumstances prevent a former employee from contacting or even soliciting clients or customers of the former employer: see the Stenhouse case, the Target case, Faccenda Chicken Ltd v Fowler [1986] 1 All ER 617, SSC & B:Lintas New Zealand Ltd v Murphy (1986) 3 NZCLC 99,546 and CE Elley Ltd v Wairoa-Harrison [1987] NZHC 6; (1987) 1 NZELC 95,620 per McGechan J who, I note, reserved his own position as regards this particular proposition. 3 An employee after ceasing his employment may not, however, use truly confidential information obtained in the course of that employment for the purpose of competing with his former employer, or indeed in any other way detrimental to his former employer's interests: see Faccenda Chicken at p625, Neill LJ's point4. 4 What amounts to confidential information for this purpose is not susceptible of abstract definition. It will depend on the facts of each case: see Faccenda Chicken at p626, Everiday Brushes (SI) Ltd v Burrows (Christchurch, CP 208/89, 14 July 1989, Hardie Boys J) and the CE Elley Ltd v Wairoa-Harrison case already mentioned. 5 There is now a clear trend of authority to the effect that whether one classifies the following information as confidential or not, a departing employee may not take with him customer or client lists for the purpose of using them in a competing role: see Everiday Brushes, Ambler v Lamont [1989] NZHC 40; (1989) 4 NZCLC 64,936 at p64,938 per Thorp J and the Elley case per McGechan J. 6 Neither may a departing employee deliberately memorise such information for that purpose: see Everiday Brushes and Westminster Chemical NZ Ltd v McKinley [1973] 1 NZLR 659 per Speight J. 7 Whether the departing employee takes customer lists or not, generally he may not solicit or approach a client of his former employer in respect of a transaction current at the time of his departure: see Elley at p95,627 and Canadian Aero Service Ltd v O'Malley (1973) 40 DLR (3d) 371."

The type of information is important. Trade secrets may never be disclosed or used by a servant after employment has ceased. However, there are other classes of information which, although not trade secrets, must be regarded in the same way. In Printers & Finishers Ltd v Holloway & Ors [1965] 1 WLR 1 Cross J made this observation at p5:

"If the information in question can fairly be regarded as a separate part of the employee's stock of knowledge which a man of ordinary honesty and intelligence would recognise to be the property of his old employer and not his own to do as he likes with, then the court, if it thinks that there is a danger of the information being used or disclosed by the ex-employee to the detriment of the old employer, will do what it can to prevent that result by granting an injunction. Thus an ex-employee will be restrained from using or disclosing a chemical formula or a list of customers which he has committed to memory. Again, in Reid & Sigrist Ltd v Moss & Mechanism Ltd (1932) 49 RPC 461 the defendant was retrained from disclosing any methods of construction or features of design of turn indicators for use in aeroplanes evolved by the plaintiffs and made known to the defendant or evolved by him whilst in their employment. The salient point there was that in the course of the development of the instrument by the plaintiffs the defendant took part in confidential discussions with an outside expert called in to advise the plaintiffs as to the best method of dealing with certain problems which had arisen. It appears, indeed, that after the discussions and while he was still in the plaintiffs' employ the defendant made and later took away with him drawings embracing the various matters discussed. But even if he had not done so and relied simply on his memory of the confidential discussions I think that an injunction would still have been granted."

In this part of his judgment, Cross J was addressing information which had been memorised.

Mr Manetta, for the appellant, contended that by using the address book to contact the eight property owners, the appellant had breached the obligation of good faith and fidelity. This obligation, although an implied term of the contract of employment, was also, by reason of the relationship between the parties, of employer and employee, an independent obligation of confidence and equity would grant an injunction in aid of an equitable right. Where, as here, the "horse has bolted" and an injunction would have no effect, the appellant is entitled to damages.

It is plain from the findings of the learned Magistrate, amply supported by the evidence of the respondent which he accepted, that the respondent compiled the address book, with the exception of some personal information, from records of the appellant, including the rent roll, for the sole purpose of discharging her duties as rental property manager. She did not compile the address book for any purpose inconsistent with the faithful discharge of her duties. It is to be expected that over the years during the course of her work in that employment, the appellant would become familiar with many of the properties and details of their owners. This is not a case of an employee deliberately memorising information for a purpose inconsistent with the obligation to the employer.

As has been seen, the respondent gave notice of termination of her employment. She did not anticipate being dismissed on the same day. The address book, and the diary, had not been compiled in anticipation of termination of the employment. Memorising of information about the property owners and the properties was not undertaken for any purpose inconsistent with the discharge of the obligations of employment. So, it may be accepted that there was no breach of any obligations prior to the employment being terminated.

What happened thereafter occurred in two stages. The first stage was the contacting of the eight property owners. The learned Magistrate found that in doing so the respondent was not soliciting business. Indeed, at that stage she had not decided to work for another land agent. She was not a competitor. Even if she was a competitor, she could canvass customers of the appellant: Wessex Diaries, Faccenda Chicken and Peninsular Real Estate.

There is an issue on this appeal as to whether the appellant can point to any evidence as to the use the respondent made of the address book when contacting the eight landlords. Her evidence was that she knew from memory the telephone numbers of three of the property owners. She used the address book to ascertain the telephone numbers of two of the property owners. Another of the property owners was contacted by his father, who was also a property owner and had been contacted by the respondent. There was no evidence as to whether the responded used the address book in order to contact the other two property owners. Although she used the address book to contact two of the property owners by telephone, she knew from memory their names and addresses. It is not known if their telephone numbers were listed in the telephone directory, but it appears that she could have contacted them by personally visiting their respective homes. In that sense, the address book was not essential.

Mr Manetta objects to reference to this evidence on this appeal because he says it is inconsistent with a finding of the learned magistrate that the address book was used and if the matter is to be raised on appeal, a notice of contention ought to have been given. Mr Abbott, for the respondent, contended that no such notice is necessary. The learned Magistrate did not make a specific finding that the address book was used to contact all, or any, of the eight property owners and I do not think it is safe to assume that he reached that conclusion. Indeed, at one stage of his reasons he said:

"Tellingly, much of the information of the Rent Roll which had been extracted and placed in the address book was information carried around by [the respondent] in her head and she knew the names and addresses and sometimes telephone numbers by heart."

I am unable to find any passage in the reasons for decision of the learned Magistrate which supports the view that he found that the respondent did use the address book when she contacted all of the eight property owners. R97.08 of the Supreme Court Rules 1987 provides that a notice of contention must be filed and served where a respondent wishes to contend that the decision of the Court appealed from should be affirmed on grounds other than those relied upon by that Court. The respondent does not make such a contention. The respondent submits that the decision of the learned Magistrate was correct in that she was not in breach of any relevant duty. The appellant was aware of the evidence at the trial which is not inconsistent with the conclusion of the learned Magistrate. It was submitted that the following finding by the learned Magistrate demonstrates that he accepted that the respondent did use the address book for all of the telephone calls made to the eight property owners:

"(7) I further find that the use by the defendant of the names and addresses of the landlords who were contacted by Feneley and who removed their business from the plaintiff, did not constitute any breach of duty known to law."

I reject that submission. The finding indicates nothing of the sort.

Furthermore, there was no evidence to suggest that, with respect to the eight property owners, the respondent had to consult the address book to identify them as such. As has been mentioned, all that was proved is that the respondent knew their identities and consulted the address book to ascertain two telephone numbers. The submission is contrary to the evidence of the respondent which was accepted. Consequently a notice of contention was unnecessary.

I do not think the respondent was in breach of any contractual obligation or duty of confidence in using the address book when contacting the property owners even if that is what happened in relation to all of them and this ground of appeal must fail. The rent roll and other information about the property managers and their properties was an asset of the appellant. Anyone working in the employ of the appellant was obliged to keep that information in confidence. However, the use of the address book and the diary by the appellant after her employment ceased for the purpose of contacting them was not in breach of that duty.

I think the learned Magistrate erred in his conclusion that this information did not have the status of confidential information. The evidence of Craggs was unnecessary to establish confidentiality. The nature of the business was sufficient to confer confidential status upon the information. The fact that the information was accessible by other staff is not to the point as the same obligation of confidence applied to all of them. The learned Magistrate concluded that it was significant that there was no evidence of any obligation of confidentiality on the part of the appellant to the property owners. I do not think that is a matter of significance. It may be safely inferred that property owners would understand that a land agent would keep his or her details and affairs in confidence.

However, that status of confidentiality does not lead to the conclusion that the respondent could not use her diary and address book after termination of her employment even for the purpose of canvassing.

In the present circumstances, it is to be seen from the evidence of the respondent, which was accepted by the learned Magistrate, that she had a perfectly proper reason to contact the eight property owners. She had developed good relationships with them and understandably felt that they should know that she was no longer working for the appellant and would not be looking after their interests.

Mr Manetta argued that the address book is the property of the appellant and consequently she could not use it at all even after the employment ceased. She should not have taken it with her and having done so should have returned or destroyed it. She could not use it for purposes contrary to the interests of the appellant. He contended that she could not even use it to inform property owners that her employment had ceased because the changeover of staff, when sudden, is particularly sensitive and the appellant may have wanted to deal with the matter in its own way. Craggs gave evidence to the effect that he would have delayed informing the property owners until a replacement had been appointed which would avoid any apprehension that their interests were not being served. So the complaint is not that she contacted the property owners or what she said to them, but that she used the address book.

I do not think it is correct to categorise the address book as the property of the appellant although I think the relevant information contained in it had confidential status. The learned Magistrate found that it was reasonable in the circumstances for the appellant to contact the eight landowners in view of her relationship with them and that she had no improper purpose. There is no reason to disturb that finding. The address book was not compiled for any of the purposes discussed in the cases which have been mentioned which would render its subsequent use a breach of confidence. I reject the contention that the respondent was in breach of the implied terms of the contract of employment or otherwise of any duty of confidence.

The second stage is the writing to the 46 other property owners. It seems that by this stage the respondent had in mind to compete with the appellant and that she had no special or close relationship with them as she did with the eight property owners. Her evidence, which was accepted, was that she knew about the names and addresses of about one third of them from memory. She gave two reasons for writing those letters. The first reason is that she wanted the landowners to know that she had left as a matter of courtesy. The second reason is that she did not want the landowners to think she was responsible if something went wrong with their properties. The learned Magistrate accepted that she was not canvassing and there is no reason to go behind that finding. At all events no loss was caused to the appellant by the writing of those letters as none of the property owners left the appellant in consequence.

The second ground of appeal is that the learned Magistrate erred in law in holding that the information contained in the address book was not required to be kept secret or otherwise made the subject of measures to preserve its confidentiality in order to be protected from misuse by the respondent. In the alternative, the ground of appeal is that the learned Magistrate erred in fact in finding that sufficient measures had not been taken to preserve the confidentiality of that information.

As has been mentioned, the rent roll and other records about the property owners and their properties constituted an asset of the appellant. The staff of the appellant, including the respondent, were obliged to keep those records and the information which they contained confidential, consistently with the discharge of their duties. Obviously not all of the information could be kept secret all of the time because it would be necessary from time to time to disclose matters to certain people, for example prospective tenants and government and resource authorities. However, the information was confidential and had to be kept as such from the world at large, including competitors and, I should think, other property owners. I think the learned Magistrate erred in his conclusion that it did not have the status of confidential information. The transcription of some of the information into the address book could not have altered that status.

However, I do not think this error can effect the result of the proceedings as determined by the learned Magistrate. As has been mentioned, the address book was not compiled for any improper purpose. It was used in a very limited way for the purpose of the appellant contacting perhaps only two of the eight property owners for what the learned Magistrate found was a proper purpose. It was used to enable the method of contacting them not the capacity to do so. As has been mentioned, she knew their names and addresses and could have contacted them without use of the address book.

It is unnecessary to consider the issues of causation and damages as the respondent did not act in breach of her duty of good faith and fidelity.