Plaintiffs v Defendants

(a) Liverpool Corporation as vendor of the units;

(b) Mr Kardamitsis as guarantor;

(c) JANJ as purchaser; and

(d) Nelson Alexander, described in the sales agreement as 'the Company'.

1. Under the sale agreement Liverpool Corporation sold its 20 Pascoe Vale office units to JANJ for $484,974.
2. Under clause 9 of the sales agreement Mr Kardamitsis guarantees to JANJ and Nelson Alexander that Liverpool Corporation will carry out and fulfil all its obligations under the agreement and indemnifies them against claims and losses consequent on or arising directly or indirectly out of any breach by Liverpool Corporation. A number of other clauses impose direct obligations upon Mr Kardamitsis, the most important of which for present purposes is clause 6 which sets out the restraint.
3. The Recitals set out that Nelson Alexander is party to the sale agreement for the following purposes:

(a) giving its consent to the transfer of Units from the Vendor to the Purchaser in accordance with clause 16(kk) of the Nelson Unit Trust;

(b) obtaining the benefit of the Restraints contained in clause 6;

(c) as the purchaser of Business Assets that were legally and beneficially owned by the Vendor or Guarantor and used by the Vendor and Guarantor in the Business;

(d) receiving from the Vendor and the Guarantor the covenant to deliver at Completion all Confidential Information; and

(e) obtaining confirmation from the Purchaser that it has been provided with a copy of the documents which comprise the terms of the Nelson Unit Trust deed and covenants to be bound by those terms.

1. Clause 6 of the sale agreement is lengthy, but in light of its centrality to these proceedings it is appropriate to reproduce it in full. It provides:

6.1. Restraint

6.1.1. During the Restricted Period and within the Restricted Area the Vendor and the Guarantor must not directly or indirectly and/or procure that any of their Related Entities participate in, be interested in, assist with or otherwise be directly or indirectly involved, engaged, concerned or interested in any Restricted Capacity in a business, enterprise or activity that is the same or substantially similar to the Business or any material part of the Business or which is in competition with the Business or any material part of the Business.

6.1.2. During the Restricted Period, the Vendor and the Guarantor must not directly or indirectly and/or procure that any of their Related Entities:

6.1.2.1. solicit, canvass, approach or accept an approach from a person who was at any time prior to the Completion Date a customer or client of the Company's with a view to obtaining their custom for a business that is the same or similar to the Business and which is also in competition with the Business or any material part of the Business;

6.1.2.2. solicit, canvass or approach any person who, as a result of the Guarantor's employment with the Company, the Guarantor has developed a business connection, contact or relationship with, for the purpose of persuading them to cease their connection, contact or relationship with the Company;

6.1.2.3. approach any customers or clients of the Company for the purpose of persuading them to cease being a customer or client of the Company;

6.1.2.4. solicit or induce any employees to leave their employment with the Company unless otherwise agreed in writing with the Purchaser and the Company;

6.1.2.5. divulge, use or except as required by law, disclose to a third party any Confidential Information, which is not generally known or available in the market place or which would not be generally known or available in the market place but for a breach of this clause; and

6.1.2.6. use a logo, symbol, trade mark, or business name substantially identical or deceptively similar to any logo, symbol, trade mark, or business name of the Company.

During the Restricted Period each of the Vendor and the Guarantor severally undertake and agree in favour of the Company to refer to the Company all and any approaches that are received by the Vendor or Guarantor (in whatever format) from any past clients or prospective or potential clients for the provision of real estate services of the nature and type provided by the Business in any area where the Company conducts the Business.

6.3.1. Each of the covenants and undertakings in clause 6 have effect together as if they consisted of separate provisions, each being severable from the other in the manner stipulated below.

6.3.2. If any of those separate combinations of the covenants and undertakings are invalid or unenforceable for any reason, this does not affect the validity or enforceability of any of the other separate provisions or combinations of the provisions of clause 6.

The Vendor and the Guarantor each covenant and acknowledge that:

6.4.1. over the period of the Guarantor's employment with the Business, he has developed significant profile, goodwill and connections with existing and prospective clients of the business. A breach of this clause 6 may cause damage or harm to the Business and/or the interests of the Purchaser;

6.4.2. the Purchase Price represents valuable consideration for the prohibitions and restrictions in this clause 6;

6.4.3. all the prohibitions and restrictions in this clause 6 are reasonable in the circumstances and necessary to protect the goodwill, confidential information and customer connections of the Business;

6.4.4. if any of the restrained persons acts in a manner contrary to the provisions of this clause 6 then the Vendor and the Guarantor shall be in breach of their obligations pursuant to this clause 6;

6.4.5. if the Vendor and the Guarantor breach this clause 6, the Purchaser and the Company are each entitled to seek (in addition to any other remedies which they may have available to them) an injunction from a court of competent jurisdiction.

If any of the restrained persons act in a manner contrary to the provisions of this clause 6 which result in the Vendor and the Guarantor breaching their obligations under this clause then the Vendor and the Guarantor jointly and severally shall immediately indemnify and keep indemnified the Company and the Purchaser and hold each of them harmless from any Loss which they suffer, pay or otherwise incur (whether directly or indirectly) as a result of such breach. The remedies contained in this clause 6 are in addition to any other remedies which the Purchaser and the Company may each have available to them.

If the whole or any part of a provision of this clause 6 is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this clause 6 has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause is of no effect if the severance alters the basic nature of this document.

The provisions of this clause shall not prevent the Guarantor from performing any employment agreement with the Company.

1. A number of terms utilised in clause 6 are defined in clause 1 of the sale agreement. Of particular importance are:

Business means the real estate agency business carried on by the Company under the name Nelson Alexander at the Business Address.

Business Address means 345 Gaffney Street, Pascoe Vale Vic 3044 and wherever the Nelson Alexander Pascoe Vale offices carry on the Business.

(a) a 25 kilometre radius from the Business Address;

(b) a 20 kilometre radius from the Business Address;

(c) a 15 kilometre radius from the Business Address.

Restricted Capacity means engagement or involvement in a business:

(a) as an equity holder in that business (including by being a discretionary or non-discretionary beneficiary of any trust fund);

(b) by way of exercising any control or management of that business or of any material part of that business;

(c) by way of performing work for that business (whether as an employee, contractor, consultant or otherwise) of a kind typically performed by an estate agent engaged in the field of property sales and property management; and

(d) includes the referral of any potential or actual listings, of properties or referral of potential vendors or purchasers proposing to buy, sell or lease properties within the Restricted Area.

Restricted Period means the period commencing on the Completion Date and ending on the date that is:

(a) 60 consecutive months after the Completion Date;

(b) 48 consecutive months after the Completion Date;

(c) 36 consecutive months after the Completion Date.

1. The 'Completion Date' was 1 April 2023.
2. Nelson Alexander and JANJ say Mr Kardamitsis' employment with Jellis Craig North from 3 January 2024 is in breach of clause 6.1.1 because that employment was:

(a) within 36 months of 1 April 2023;

(b) at premises within 15 km from the Pascoe Vale office; and

(c) performing work of a kind typically performed by an estate agent engaged in the field of property sales and property management.

1. It was agreed between the parties that the distance between the Pascoe Vale office and the Jellis Craig North office where Mr Kardamitsis now works is 6.36 kilometres.
2. Importantly however, Nelson Alexander and JANJ do not allege that Mr Kardamitsis has breached clause 6.1.2 or 6.2 of the restraint clause, nor do they allege that Mr Kardamitsis' employment with Jellis Craig North has resulted in any loss of clients or any other measurable financial impact on the business of the Pascoe Vale office or the units. It is for this reason that, leaving aside JANJ's claim for a return of 90% of the purchase price of the units, Nelson Alexander and JANJ only seek nominal damages for loss of business, reduced good will and the reduced value of the units.

Mr Kardamitsis' employment at the Pascoe Vale office

1. Mr Kardamitsis started his employment with Nelson Alexander at the Pascoe Vale office in July 2010 as a 'Portfolio Manager', which from the evidence was often referred to as a property manager. His total remuneration package inclusive of superannuation and a mobile phone allowance at that time was $55,220 per annum.
2. As a property manager Mr Kardamitsis was responsible for managing a portion of the Pascoe Vale offices 'rent roll', that is properties which were leased by landlords through the Pascoe Vale office. That work included ensuring that rent is paid, conducting regular inspections and arranging any necessary repairs, annual rent reviews and responding to requests from landlords and tenants. Where a property had become vacant it involved conducting tenancy interviews and checks, the preparation of leases and other relevant documents, including condition reports and, where necessary, finding tenants.
3. In 2012 Liverpool Corporation acquired five Pascoe Vale office units from a Mr Anthony Genzilli. The sale of those units was evidently treated informally and there was no written contract or terms of sale in evidence regarding that transaction, certainly it does not appear that there was any restraint associated with the sale of those units to Liverpool Corporation. Liverpool Corporation's bank statements indicate the five units were purchased for $52,150.
4. Mr Kardamitsis' evidence, which I accept, was that the acquisition of those units did not lead to any change in job title or responsibilities on his part. He remained a property manager, one of two in the Pascoe Vale office. Mr Russo was the boss in the office and whilst the units gave Mr Kardamitsis an opportunity to share in the profit of the office (or contribute to its losses), the acquisition of the units did not lead to any significant participation in the management of the Pascoe Vale office or in the affairs of Nelson Alexander more broadly.
5. In 2013 Mr Kardamitsis became a Senior Property Manager, he continued to manage rental properties in much the same way as before, though he seems to have taken on some extra responsibilities in relation to monthly reporting and budgeting, arranging the Saturday open roster and dealing with complaints.
6. Between 2014 and 2019 Liverpool Corporation purchased units in the Trust as follows:

(a) 5 Pascoe Vale office units in September 2014 for $62,570 from a company associated with a Mr Duncan McPherson;

(b) 5 Pascoe Vale office units in January 2018 from JANJ for $81,978.96; and

(c) 5 Pascoe Vale office units in July 2019 for $102,146 from Mr John Cataldo.

1. The 2014 and 2018 acquisitions are evidenced by a unit sale transaction record but neither was accompanied by any contractual restraint. The 2019 transaction was the subject of a restraint which was narrower than the restraint clause with which I am concerned.
2. In 2020 Mr Kardamitsis became the Department Manager of the property management department at the Pascoe Vale office. In this role he managed properties within the Pascoe Vale office rental property portfolio and managed a team of three other property managers. His total remuneration package (excluding any distributions from units) at that time was $120,700.
3. Mr Kardamitsis has never held, and does not presently hold an estate agent's licence. His employment history at Nelson Alexander was limited to working exclusively in property management, supervision of other property management staff members and occasional business development. Immediately prior to his departure from the Pascoe Vale office Mr Kardamitsis spent about 60% of his time on day to day property management, approximately 30% of his time in the supervision of other property management staff and about 10% of his time on business development. He described this latter activity as substantially following up leads generated by the sales team at the Pascoe Vale office where a purchaser of a property had indicated they might be intending to rent a property out.
4. Nelson Alexander and JANJ were keen to emphasise the seniority and importance of Mr Kardamitsis' role in the Pascoe Vale office and Nelson Alexander more generally, whereas Mr Kardamitsis was inclined to emphasise that his work was routine, 'unglamorous' and that he had not played any substantial role in the management of the Pascoe Vale office, beyond property management, or any substantial role in the management of Nelson Alexander more generally.
5. At this point it is appropriate to note that I am satisfied having heard the evidence of Mr James Keenan, Mr Russo and Mr Kardamitsis that:

(a) Mr Kardamitsis was a senior property manager and one of very few property managers in the Nelson Alexander business who held units;

(b) he was not significantly involved in the management of the Pascoe Vale office outside of his management of the property management team and that more general management issues at that office were Mr Russo's domain;

(c) he was not, as Mr Keenan had suggested, involved in:

(i) 'high level management of the business of Nelson Alexander, including involvement in standardising systems for property management across 17 offices, and in changing business processes and service level agreements'; or

(ii) decisions on strategies or policies or procedures;

(d) he did attend monthly meetings with people from the rental team from each office which discussed budgets and income; and

(e) as a unitholder would attend meetings at which unitholders would be given presentations regarding financial matters and the Nelson Alexander five year plan.

1. In other words, Mr Kardamitsis was not a mere functionary but nor was he a central lynchpin of the business of the Pascoe Vale office, he was not a 'rainmaker' and certainly not a key player in Nelson Alexander's business more broadly. Ultimately when he did depart the Pascoe Vale office he was quickly, and it appears seamlessly, replaced as head of property management.

1. By early 2023 relationships in the Pascoe Vale office had broken down. In his evidence Mr Kardamitsis described what he considered to be bullying behaviour from Mr Bettanin, another unit holder in the Pascoe Vale office (with 40% of the office units), commencing in 2018 or 2019 and continuing until 2023. Mr Russo did not accept that Mr Bettanin had bullied Mr Kardamitsis but said that there was a total breakdown in the partnership (for which he seemed to hold both Mr Kardamitsis and Mr Bettanin responsible), that the office environment had become very toxic and that it was not tenable to continue the way it was.
2. On 1 February 2023 Mr Kardamitsis met with Mr Keenan and Mr McPherson, chairman of Nelson Alexander, to notify them of his intention 'to move on' from Nelson Alexander. Mr Keenan and Mr McPherson suggested that Mr Kardamitsis sell his Pascoe Vale office units to another employee of the Pascoe Vale office and that he could be transferred as an employee to another office of Nelson Alexander.
3. Throughout February and into March various options were explored in terms of other employment and arrangements made regarding the finalisation of Mr Kardamitsis' time at the Pascoe Vale office and the sale of his units. Ultimately, it was agreed that he would commence employment at the Northcote office of Nelson Alexander as a property manager on a somewhat reduced salary, that his last day in the Pascoe Vale office would be 31 March 2023 and that he would sell his units to JANJ in accordance with the terms of the sale agreement.
4. As noted above, on 1 April 2023 the sale agreement was executed.

1. On 11 April 2023 Mr Kardamitsis commenced employment at Nelson Alexander's Northcote office as the Property Department Manager of that office. This was governed by a written employment agreement between Nelson Alexander and Mr Kardamitsis dated 6 April 2023. That employment agreement also contained a restraint. Nelson Alexander and JANJ no longer seek relief in relation to that restraint. In any event, it is not plain that JANJ would ever have had standing to seek relief in relation to the employment agreement restraint. However, both Nelson Alexander and JANJ say they rely on the alleged disregard of the employment agreement restraint as a matter to be weighed in the balance on the question of the utility of any relief being granted in relation to the restraint in the sale agreement.
2. On 4 October 2023 Mr Kardamitsis attended a meeting at Nelson Alexander's Fitzroy Head Office along with Mr Russo, Mr Bettanin, Mr Sheehy, Mr McPherson and Mr Keenan. Mr Kardamitsis was provided with relevant financial records of the Pascoe Vale office for the year ending 30 June 2023 which purported to show a loss of approximately $242,000. Mr Kardamitsis says that he was told by Mr Keenan that he was liable to repay $52,000 as a former unitholder of the Pascoe Vale office.
3. That meeting upset Mr Kardamitsis a great deal. Following the meeting he took a week's leave of absence, sought medical assistance and was prescribed Valium and sleeping tablets. He consulted a lawyer and asked the lawyer to prepare him an email to Mr Keenan in which he said that the sale of the units had transferred any rights or obligations attaching to the units to JANJ and, as a result he did not owe any money arising from the loss to 30 June 2023. Mr Kardamitsis gave evidence that after that meeting he decided he could no longer work for Nelson Alexander and began looking for other work.
4. On 29 November 2023 Mr Kardamitsis formally provided his letter of resignation of his employment with Nelson Alexander.
5. Mr Kardamitsis's last day of employment at Nelson Alexander's Northcote Office was 22 December 2023 but his employment came to an end on 27 December 2023.

1. On 3 January 2024 Mr Kardamitsis commenced his current employment with Jellis Craig North as a senior property manager at Jellis Craig's Northcote office located at 427-431 High Street, Northcote, Victoria. Mr Kardamitsis' role at Jellis Craig North from 3 January 2024 to date has been exclusively in property management. Mr Kardamitsis took another pay cut to work at Jellis Craig North. His starting salary was $100,000 per annum.
2. I do not need to resolve the question of whether Mr Kardamitsis was bullied at the Pascoe Vale office or whether the attempt to make him contribute to the losses of that office in October 2023 was justified, but what is evident is that Mr Kardamitsis twice took significant pay cuts to escape what he thought was a toxic environment. Having heard his evidence I am satisfied that, in light of his experiences at Nelson Alexander, in his new employment Mr Kardamitsis is content to simply perform his role and had and has no desire to engage in poaching of Nelson Alexander clients or to take on significant business building on the part of Jellis Craig North. Of course, it is possible that might change in the future but I am not satisfied this is likely, at least in the period up until 1 April 2028.
3. On 21 March 2024 Kennedys, the solicitors acting for Nelson Alexander, wrote to Mr Kardamitsis demanding that he cease employment with Jellis Craig North forthwith.
4. On 3 April 2024 Mr Karadmitis's solicitors, O'Donnell Salzano Lawyers, wrote back to Kennedys in effect stating that the demands made in the letter were rejected by Mr Kardamitsis and were unfounded.
5. On 16 May 2024 the plaintiffs commenced this proceeding.
6. The only breach of the sale agreement alleged in this proceeding is a breach of clause 6.1.1 of the restraint clause. It is not alleged Mr Kardamitsis has breached clause 6.1.2 or 6.2. In particular, there is no suggestion that he has solicited clients of Nelson Alexander and no suggestion he has misused any confidential information which he obtained in his employment. Mr Kardamitsis says that on only one occasion, since starting at Jellis Craig North, has he been approached by a client of Nelson Alexander's Pascoe Vale office and in accordance with clause 6.2 of the restraint clause he referred that person to Mr Russo. This is not disputed.

1. The starting point in considering the proper construction of the restraint is the general principles which apply to the construction of contracts conveniently summarised by French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd:[1]

The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. ...

Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.

Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption "that the parties ... intended to produce a commercial result". Put another way, a commercial contract should be construed so as to avoid it "making commercial nonsense or working commercial inconvenience".[2]

1. Restraint clauses are in a somewhat special category, they are presumed void as contrary to public policy.[3] If a restraint is to be enforced that presumption must be rebutted by demonstrating special circumstances which show that the restraint is reasonable as between the parties and not unreasonable in the public interest.[4] The onus of proving reasonableness as between the parties rests with the person seeking to enforce the restraint clause.[5] The onus in relation to the public interest rests with the person asserting the clause is against the public interest.[6] What is reasonable depends on the situation which the parties occupy.[7] The courts tend to take a stricter view of restraint clauses in the employment context than they do of those in favour of a purchaser of goodwill, with the latter being more readily upheld.[8]
2. First, it is necessary to construe the restraint clause.
3. If the ambit of the restraints imposed by the clause cannot be ascertained the restraint clause will be void for uncertainty. In Lloyd's Ships Holdings Pty Ltd v Davros Pty Ltd[9] Spender J said:

a threshold question in determining the certainty of a restraint of trade clause ... is whether the clause contemplates a single covenant to operate from the numerous combinations of conduct, time and area which are generated. If the clause contemplates a single covenant, then the covenant must provide a means by which to choose which of the combinations is to apply; otherwise the clause is void for uncertainty. A clause which contemplates a single covenant, being the widest restraint that is enforceable, will be uncertain "because in the absence of any statement as to the priority of application of the variables, it is not possible to say which covenant is widest". Such a clause may be open to separate public policy objection that the parties have left the court to fix the measure of the restraint.

If, however, the clause contemplates all of the combinations applying with severance of those found to be an unreasonable restraint of trade, then no uncertainty exists. The clauses operate cumulatively, with any overlap between the obligations thereby imposed not being regarded as an inconsistency of the kind discussed by Bowen LJ in Davies v Davies...[10]

(a) the court will look at text, context and purpose;

(b) ambiguity will be construed in favour of the person subject to the restraint, so that where there are two reasonably available constructions, the one which imposes the lesser restraint will be preferred;[11]

(c) however, the Court does not first determine the degree of restriction which would be acceptable and then read down a restraint clause so as to preserve validity.[12]

1. Where there are distinct covenants some of which are too wide, the invalid covenants may be severed subject to the following conditions:

(a) The impugned covenants must be capable of simply being removed - as if crossed out with a blue pen. A court can only remove words from a restraint clause; it cannot rewrite the restraint clause.

(b) The restraint clause contains several distinct covenants, one of which is valid. The covenant to be severed must be an independent covenant capable of being removed without affecting the remaining part. 'The only change should be to the sphere of operations of the clause'.[13]

1. In determining whether a restraint clause is reasonable as between the parties the court considers two questions:

(a) Is there a legitimate interest which the person seeking to enforce the restraint seeks to protect and, if so, what is that interest?

(b) Does the restraint go no further than what is reasonably necessary to protect that legitimate interest?[14]

1. Most restraint clauses provide a range of cascading geographic and temporal restrictions with an internal hierarchy which makes clear that in the event the broadest restriction is unenforceable the next broadest will apply and in the event that restriction is unenforceable the next and so on down the cascade. The employment agreement restriction which applied to Mr Kardamitsis' employment with the Nelson Alexander Northcote office is an example of that kind of drafting technique.
2. Sometimes clauses are drafted with a clause which simply says that in the event that any part of the restraint clause is unenforceable it is to be severed and the remainder of the provision enforced. The restraint is in that form, as was an earlier restraint clause in the sale of units from Mr Cataldo to Liverpool Corporation. In the latter clause the geographic and temporal restrictions were part of the restraint clause and so one could sever those geographic and/or temporal restraints which were unenforceable.
3. Here though, the definitions of Restricted Area and Restricted Period:

(a) do not express the differing radii or time periods as alternatives (there is no use of the word 'or');

(b) do not contain any internal criteria for moving down the cascade of restrictions (words such as 'or if that is deemed unenforceable');

(c) are not contained in the restraint which provides for severability in the event of unenforceability; and

(d) are in an agreement which does not have a general interpretation clause which provides for severability in the event of unenforceability.

1. In their submissions, Mr Kardamitsis and Liverpool Corporation said that on this basis the restraint was unenforceable. Counsel for Nelson Alexander and JANJ in his oral submissions argued that this issue had not been pleaded.
2. In their defence, Mr Kardamitsis and Liverpool Corporation specifically pleaded that the restraint was unenforceable. They were asked to provide the usual details, being each act, fact, matter, circumstance, thing, event, happening, occurrence, error, neglect, omission or default relied on, of that allegation. The particulars provided go to matters which are said to demonstrate that the restraint was not reasonably necessary to protect the legitimate interests of the business. Those particulars would not have alerted the reader to an argument that relied on the possibility that the clause had not provided a means by which to ascertain which of the cascading restrictions were to be applied. Nonetheless, the argument that the restraint does not provide a means to ascertain which of the cascading restrictions apply is a construction argument and was raised in the written opening submissions for Mr Kardamitsis and Liverpool Corporation. In effect, at that point Nelson Alexander and JANJ were provided with further particulars of alleged unenforceability. No point was raised at that stage by Nelson Alexander and JANJ that the argument should not be permitted or that they wished to adduce different evidence to meet the point and I can conceive of no possible prejudice in it being raised.
3. On balance though, I am satisfied that the restraint is not void for uncertainty. First, whilst the severability clause in clause 6.3 only applies to the covenants in clause 6 and the definitions of Restricted Area and Restricted Period are contained in clause 1, those terms are only used in clause 6. So, to the extent that those terms are defined in a way which contain cascading possibilities, it is possible to rely on clause 6.3 to sever any provision which is unenforceable within those definitions from the operation of clause 6. Secondly, if I were wrong in holding that clause 6.3 applies, I would nonetheless hold that it was possible to apply a 'blue pencil' to those parts of the definitions in clause 1 which were not enforceable, leaving obligations which were.

Is Mr Kardamitsis engaged in a Restricted Capacity?

1. Clause 6.1 says Mr Kardamitsis must not, subject to the geographic and temporal restraints 'participate in, be interested in, assist with or otherwise be directly or indirectly involved, engaged, concerned or interested in any Restricted Capacity in a business, enterprise or activity that is the same or substantially similar to the Business or any material part of the Business'. For present purposes, I will refer to that in shorthand form as a prohibition on Mr Kardamitsis being engaged in a Restricted Capacity in his employment at Jellis Craig North.
2. It is convenient to reproduce the definition of Restricted Capacity in clause 1.1 of the sale agreement, it reads:

Restricted Capacity means engagement or involvement in a business:

(a) as an equity holder in that business (including by being a discretionary or non-discretionary beneficiary of any trust fund);

(b) by way of exercising any control or management of that business or of any material part of that business;

(c) by way of performing work for that business (whether as an employee, contractor, consultant or otherwise) of a kind typically performed by an estate agent engaged in the field of property sales and property management; and

(d) includes the referral of any potential or actual listings, of properties or referral of potential vendors or purchasers proposing to buy, sell or lease properties within the Restricted Area.

1. Mr Kardamitsis and Liverpool Corporation make a short point:

(a) the definition uses the conjunction 'and';

(b) as a result, to be engaged in a Restricted Capacity Mr Kardamitsis must satisfy each paragraph of the definition;

(c) Mr Kardamitsis is not an equity holder in Jellis Craig North and does not exercise control or management of its business or any substantial part of its business; and

(d) Mr Kardamitsis is not therefore engaged in a Restricted Capacity at Jellis Craig North.

1. Nelson Alexander and JANJ do not assert Mr Kardamitsis is an equity holder in Jellis Craig North, plainly on the evidence he is not. They say however, that notwithstanding the use of the conjunction 'and' I should read paragraphs (a), (b) and (c) of the definition as alternatives, because it would be 'a rare worker who would satisfy all of those requirements'.
2. The question of when the word 'and' should be read disjunctively was considered by the Court of Appeal in Di Paolo v Salta Constructions Pty Ltd[15] in the context of statutory interpretation:

The ordinary meaning of 'and' is conjunctive. However, in a number of cases, 'and' has been read disjunctively.

In Re Licensing Ordinance, Blackburn J set out two categories of cases in which 'and' had been read disjunctively. The first category consisted of cases where, if 'and' was given its natural meaning, the result would be so extraordinary that in order to make sense of the provision, the court would be obliged to read the word 'and' as if it had been 'or'. The cases contained in this category have subsequently been described as those in which the court may be persuaded that the Parliament simply made a mistake and the wrong conjunction was used.

The second category consisted of cases in which there was a list of items, the items being joined by 'and' but the list being governed or affected by words which showed that the list was a list of alternatives. In such a case, the word 'and', which was used to join the items in the list, would be truly cumulative in that it linked the members of a class and its function was to indicate that the whole class was to be considered together. An example of this would be the wording of a statutory definition that provided that 'motor vehicle includes motor cycles, tractors and trailers'. In this example, 'and' would have a cumulative meaning but dispersive effect would be given by the word 'includes'.

Where the courts have adopted a disjunctive interpretation of 'and', this has been governed by the context in which the word appeared. One relevant contextual factor that will favour an interpretation of 'and' as conjunctive is if the statute employs the word 'or' when it desires to convey a disjunctive meaning.[16]

1. I am construing a contract but I do not regard that as leading to any different approach when it comes to construing the word 'and' in the definition of Restricted Capacity.
2. This is not a case where construing 'and' in accordance with its ordinary meaning leads to a result so extraordinary that it should be read disjunctively. Contrary to the submissions of Nelson Alexander and JANJ, it is quite likely that vendors of units will have been engaged in activities which fall within all four aspects of the definition of Restricted Capacity and it is entirely plausible that such a person leaving Nelson Alexander might be engaged in each of those capacities in another business. Reading 'and' in its ordinary sense does not lead to any absurd result, rather, it leads to a result which is entirely sensible in its focus on those who take on an equity stake and senior role at another business. It also makes the restraint clause more likely to be enforceable because by restricting the capacity of involvement to those who have equity in and are engaged in management of another business it is more likely the relatively broad geographic and temporal restraints are enforceable.
3. Nor is this a case where the use of the word 'includes' in paragraph (d) of the definition has a dispersive effect on the prior use of the word 'and' as a connector of paragraphs (a) to (c).
4. In short, there is no reason to read 'and' in anything other than its ordinary sense in the definition of Restricted Capacity. Mr Kardamitsis is not, and never has been, an equity holder in the Jellis Craig North business. He therefore is not, and never has been, engaged in a Restricted Capacity in the Jellis Craig North business.
5. As a result, even if the restraint in clause 6.1.1 is otherwise enforceable Mr Kardamitsis has not breached it. The claims for relief should be dismissed.
6. In light of this conclusion it is unnecessary for me to decide, but if paragraph (c) of the definition of Restricted Capacity were to be read on its own it is not apparent that Nelson Alexander has discharged the burden of showing that the work performed by Mr Kardamitsis is 'work... of a kind typically performed by an estate agent engaged in the field of property sales and property management'. Mr Kardamitsis is not a real estate agent. On the evidence before me work which is exclusively concerned with property management appears not to typically be performed by real estate agents but rather by employees of real estate agencies.

1. Against the possibility that I am wrong in my construction of the definition of Restricted Capacity, I turn now to deal with the question of whether, if Mr Kardamitsis' employment at Jellis Craig North fell within that definition, the geographic and temporal restraints created by the definitions of Restricted Area and Restricted Period are reasonable.
2. The restraint clause contains an acknowledgement by the parties that the restraints are reasonable. That is a matter to be given some weight but it is not decisive.
3. The 'Business' for the purposes of the restraint is the business conducted at the Pascoe Vale office. It is not Nelson Alexander's business more generally. It is not the business of Nelson Alexander's Northcote office.
4. Each of Nelson Alexander and JANJ have a legitimate interest in seeking to preserve the goodwill in the Pascoe Vale office and its relationships with its client landlords. The evidence establishes that valuation of units in Nelson Alexander and valuations of real estate agencies more generally, tend to be done on the basis of a multiple of the annual value of the management fees generated from the 'rent roll'. If a unit holder were to leave Nelson Alexander taking with them a significant number of landlord clients, the management fees generated from the rent roll would likely fall, reducing the value of the units in the office. This would be so whether or not revenue generated from sales increased in a manner which offset the loss of management fees.
5. However, I am persuaded that even the most limited geographic restriction in the definition of Restricted Area goes far beyond what is necessary to protect Nelson Alexander's and JANJ's legitimate interests in the protection of their goodwill and landlord client base.
6. Nelson Alexander and JANJ emphasised that Nelson Alexander, unlike some other real estate agency businesses, does not operate its business on a franchise model with fixed territories. They emphasised that the Pascoe Vale office could manage properties anywhere.
7. The evidence however establishes that, in practical terms, the overwhelming proportion of the Pascoe Vale office's client landlords come from a relatively confined geographic area. Nelson Alexander does not have fixed territories for its offices but it does have defined marketing areas in which each office is permitted to market. In the case of the Pascoe Vale office, that marketing area is confined to Pascoe Vale, Pascoe Vale South, Glenroy, Hadfield and Oak Park. Perhaps, unsurprisingly, the area which best defines the market in which the Pascoe Vale office predominantly operates is the area in which it is permitted to market. Mr Kardamitsis gave evidence that approximately 95% of the business of the Pascoe Vale office was centred on Pascoe Vale, Pascoe Vale South, Glenroy, Hadfield, Oak Park and parts of Coburg ('the market area'). The documentary evidence is broadly consistent with this view, for example in March 2023, in the month prior to the signing of the sale agreement, approximately 88% of the entries detailing commissions from properties on the rent roll came from the market area.
8. The evidence establishes that where properties are outside the market area but managed by the Pascoe Vale office it is usually because the landlord was already using the Pascoe Vale office for a property located in the market area and had purchased another property outside it. There were also examples where a property outside the market area was owned by a relative of an employee of the Pascoe Vale office.
9. A 25 kilometre restraint from the Pascoe Vale office covers a very significant portion of metropolitan Melbourne, it includes suburbs as far afield as Sunbury, Point Cook and past Brighton. A 20 kilometre restraint extends to suburbs like Williamstown and Box Hill. A 15 kilometre restraint includes Greensborough, South Yarra and St Albans.
10. Mr Keenan gave evidence that Nelson Alexander would not have sued Mr Kardamitsis if he had moved to Sunbury or Point Cook (within the 25 km radius); Doncaster (within the 20 km radius) or Greensborough (within the 15km radius). Mr Keenan did say that Nelson Alexander would have considered suing if Mr Kardamitsis had moved to places like St Albans or South Yarra. It is evident from his answers that Mr Keenan's views in this regard resulted not because of the interests of the Pascoe Vale office, but rather because of the interests of other Nelson Alexander offices.
11. Equally, insofar as I have evidence of practices of other real estate firms, it is of Jellis Craig who also seem to run a localised network of suburban offices. The evidence establishes that the Jellis Craig Northcote office is not in competition with the Pascoe Vale office in any meaningful way. Mr Kardamitsis gave evidence that most of the properties that the office managed came from Northcote, Fitzroy, Preston, Reservoir, Fitzroy North, Abbotsford, Collingwood, North Melbourne, West Melbourne, Carlton, Carlton North, Clifton Hill, Fairfield and Thornbury. Mr Russo could identify only nine properties from the Pascoe vale office rent roll (or about 1.5% of the total) which came from any of those suburbs.
12. Mr Kardamitsis' evidence, which was not disputed, was that landlords are generally happiest when not being contacted by their property manager and that, as a result, he would often not have contact with particular landlords for extended periods. Viewed objectively, as at March 2023, it seems unlikely that Mr Kardamitsis' departure from the Pascoe Vale office to an office of a competitor in Northcote (if that had been foreseen) would have caused any legitimate concern about landlords from the Pascoe Vale office transferring their property management to the Northcote office of that competitor.
13. Given the localised nature of the property management which the Pascoe Vale office undertakes and the relatively limited contact which Mr Kardamitsis would have had with the clients of that office, each of the geographic restraints, in my view, goes well beyond what is necessary for the Pascoe Vale office to protect its goodwill and customer base.
14. I am also persuaded that the temporal restraints in the definition of Restricted Period are too long. The purpose of the temporal restraint is to provide the Pascoe Vale office with a period of time in which it can ensure that its goodwill and customer base is not impacted by Mr Kardamitsis' departure. In light of the nature of Mr Kardamitsis' work and the relatively infrequent contact with clients, I accept a period of a year or perhaps two years might have been necessary for this to occur but I do not accept that three, four or five years in the context of this business and this individual were reasonable. In reaching that view, I am fortified by the evidence of Ms Murone that, from her experience working in mergers and acquisitions, in terms of temporal restraint 'anything beyond three years' is almost irrelevant.
15. If it were necessary to decide because, contrary to my view, Mr Kardamitsis' employment at Jellis Craig North fell within the definition of Restricted Capacity, I would hold that the geographic and temporal restraints created by the definitions of Restricted Area and Restricted Period are unreasonable, in that they go substantially beyond what is necessary to protect the legitimate interests of the Pascoe Vale office.

1. For the reasons set out above, Nelson Alexander and JANJ have failed in their claims for relief. Against the possibility that I am wrong and that properly analysed Mr Kardamitsis has breached the restraint, I provide some further observations regarding the relief sought by Nelson Alexander and JANJ.

1. The primary relief sought in this matter includes an injunction that Mr Kardamitsis cease his employment with Jellis Craig North. Even if, contrary to the view I hold, Mr Kardamitsis had breached the restraint I would have declined to grant such an injunction on discretionary grounds.
2. Nelson Alexander and JANJ can point to no actual harm to the business of the Pascoe Vale office or indeed even the business of Nelson Alexander more broadly resulting from Mr Kardamitsis' employment by Jellis Craig North. They do not allege he has taken a single client. They contended, however, that I should infer the only reason for that was that the existence of these proceedings had acted as a brake on Mr Kardamitsis soliciting Nelson Alexander clients. Having heard Mr Kardamitsis' evidence in cross-examination on this issue, I reject that contention. As I have indicated above, I am satisfied that Mr Kardamitsis had no intention of raiding the Pascoe Vale office client list when he commenced employment with Jellis Craig North and that his position in that regard arose independently of any threat of legal proceedings which came some two and a half months later. I am also persuaded that it is unlikely that he will try to solicit clients from the Pascoe Vale office after these proceedings are concluded, I am satisfied Mr Kardamitsis just wants to get on with managing his portfolio of clients at Jellis Craig.
3. Further, there is no evidence of any damage to the value of the units. Mr Kardamitsis and Liverpool Corporation relied on the evidence of Ms Murone, a chartered accountant with extensive valuation experience. Ms Murone gave evidence that the units had increased in value. Mr Rundle of SW Accountants and Advisors Pty Ltd, who was called by Nelson Alexander and JANJ, agreed. In submissions JANJ said I should not infer that Mr Kardamitsis' actions had not had an impact on value, in other words, the units might have been worth even more had Mr Kardamitsis not commenced work at Jellis Craig North. There is no evidence for that hypothesis and I reject it.
4. Set against the complete lack of actual or threatened harm to Nelson Alexander and JANJ are the serious and significant adverse consequences for Mr Kardamitsis if an injunction were granted. Mr Kardamitsis is the primary breadwinner for his family. The injunctive relief would require him to cease stable employment and seek work elsewhere at least 15km and possibly 25km from where he lives.
5. If Mr Kardamitsis had breached the restraint I would not have granted the permanent injunction sought by Nelson Alexander and JANJ.

1. In Director of Consumer Affairs Victoria v Mecon Insurance Pty Ltd[17] Elliott J set out certain factors relevant to the grant of declaratory relief. Relevantly, he said:

Declaratory relief may not be appropriate where "the declaration will produce no foreseeable consequences for the parties".[18]

1. If Mr Kardamitsis had breached the restraint it is my view that, in the circumstances I have outlined above in my consideration of injunctive relief, a declaration would produce no foreseeable consequence for the parties. Had it been necessary to consider such relief I would have declined to grant it in the exercise of my discretion.

1. JANJ seeks contractual damages assessed as being 90% of the price it paid for the units. The evidence does not establish any basis upon which it would be appropriate to award JANJ 90% of the purchase price of the units even if Mr Kardamitsis had breached the restraint. JANJ relied on the evidence of two experts.
2. Mr Rundle gave evidence as to the value of the units had they been sold without a restraint. He provided his opinions in two reports, one dated 16 July 2025 and a reply report dated 16 October 2025. His conclusion was that had the units been sold without a restraint they would only have been sold for 10% to 20% of the price for which they were sold with a restraint.
3. The first point to note is that, in my view, the conclusions of Mr Rundle rest on an incorrect counter-factual for the purposes of the assessment of damages in this case. There is no suggestion that Mr Kardamitsis has breached clause 6.1.2 or clause 6.2. The appropriate counterfactual in terms of the price or value of the units requires an answer to the question; what would the units have been worth with a different restraint?
4. In light of the conclusions I have reached, it is sufficient to consider what would the units have been worth without the restraints in clause 6.1.1 but with the restraints in clauses 6.1.2 and 6.2. Mr Rundle did not answer that question in his reports. His evidence in cross-examination seemed to be that a clause with 6.1.2 and 6.2 but without clause 6.1 would still have warranted a 80% to 90% discount on the price of the units, but his explanation for that position made no sense:

HIS HONOUR: I'm sorry. I'm not sure I understood your answer, when you said the two clauses were intertwined and it didn't make any difference. What doesn't it make a difference to? In other words, if 6 - assume, for the moment, they're not intertwined and you had 6.1.2 and 6.2 as a restraint, but not 6.1.1. Is your evidence that wouldn't make any difference to the value, from the 80 to 90 per cent discount that you - - -?

MR RUNDLE: Yes. My - my response was meant to be saying that, effectively, the specific targeted restrictions encompassed the - the impact on the value. I didn't think it added or altered the value, or incorporating 6.1.1. That was a more general overarching provision.

HIS HONOUR: I see. So when you say it doesn't make any difference, you say that 6.1.1 doesn't really add anything to 6.1.2 and 6.2?

MR RUNDLE: No. The more specific targeted ones, the ones that carry the more specific weighting.

MR FRENKEL: Thank you, Your Honour. So if the more targeted ones carry the more specific rating, so 6.1.2 and 6.2, surely, your valuation, had you been asked on the basis that they remain and 6.1.1 comes out, would be different, would it not?

MR RUNDLE: No. I'm saying that I think the inclusion of 6.1.1 doesn't change my opinion. It's over 6.1.2 and 6.2 encapsulate all of the impact of 6.1. You have an overarching principle and have specifics. The specifics are where I've looked at the value. I haven't attempted to differentiate between them in my report and arriving at the percentage discount.

1. Just precisely what that evidence meant is hard to discern, I thought I had understood Mr Rundle to be saying that clause 6.1.1 did not add anything in terms of value to clauses 6.1.2 and 6.2 but his answer to Mr Frenkel seemed to suggest the opposite. If the latter was his evidence, I found the explanation wholly unpersuasive. In his report Mr Rundle described the value of a restraint clause as guarding against the 'risk that the seller may re-enter the market and solicit clients from the portfolio being sold, undermining the ability of the purchaser to retain the management income and client relationships'. In light of that rationale, it simply makes no sense to suggest that protections which allow the purchaser to retain the management income and client relationships but without a clause in the form of clause 6.1.1 would still warrant a 80% to 90% in purchase price.
2. Ms Murone's evidence, which I accept, is that from a valuation perspective, non-solicitation of clients is generally more important than geographic and temporal restraints against working for a competitor. In the particular circumstances of this case her view, which again I accept, is that provided there were restraints in the form of clause 6.1.2 and 6.2 there would be no discount in the value of the units if clause 6.1.1 had been absent.
3. Secondly, in any event, no weight can be placed on Mr Rundle's calculation of an 80% to 90% discount in price, his calculation of that quantum derived from a transaction referred to in Mr Keenan's witness statement which Mr Rundle accepted, indicated a 85% discount in purchase price for a sale of units in a different Nelson Alexander office in 2023 ('the Hope transaction'). Based on that, and nothing more, other than unspecified conversations with brokers and his experience and professional judgment, Mr Rundle concluded that an 80% to 90% discount was appropriate. In his reply report Mr Rundle accepted that the Hope transaction was not comparable or relevant to this matter. In short, there is nothing in the way of exposed reasoning on the part of Mr Rundle which would provide any form of cogent basis for his conclusion that a sale of units without a restraint would have resulted in an 80% to 90% discount.
4. Thirdly, the sale price of the units was calculated as a multiple of the annual management fee income of the Pascoe Vale office rent roll. The parties seem to have accepted that the multiple for the sale agreement was 3.5 times. Mr Rundle calculates that multiple as 3.39 times. All of the unit purchases by Mr Kardamitsis used a multiple of 3.5 times. It will be recalled that three of those unit purchases contained no restraint and one contained a restraint which was much more limited in terms of geographic and temporal restrictions than the restraint in the sale agreement. In other words, in the only actual examples of sales of Pascoe Vale office units without restraints no discount to the value of those units was applied. In submissions Nelson Alexander and JANJ sought to meet this point by distinguishing those transactions because they were 'internal' transfers of units, that is from someone within or associated with Nelson Alexander to another person within or associated with Nelson Alexander. That provides no basis for distinguishing a hypothetical transaction where no restraint was included in the sale agreement between Liverpool Corporation and JANJ.
5. Fourthly, Mr Rundle was asked whether the consequence of his view was that everything other than the sale restraint, in other words, the equity in the business, was worth only 10% to 20% of the purchase price. He disagreed. That answer points up the absurdity of Mr Rundle's evidence regarding the level of discount which would be applied in the absence of a restraint (or more precisely in the absence of a restraint in the form of clause 6.1.1). If the value of 'everything else' is not 10% to 20% of the purchase price then it makes no sense to say that the discount for absence of a restraint would be 80% to 90% of the purchase price.
6. Mr Hedditch is a licensed real estate agent, certified business valuer and member of the Real Estate Institute of Victoria who specialises in the sale and valuation of rent rolls. Mr Hedditch provided two expert reports, an initial report dated 9 July 2025 and a reply report dated 13 October 2025.
7. In his first report, he identified the purpose of a restraint clause as protecting the legitimate business interests of a purchaser, which he said included:
   • Protection of trade secrets and confidential information
   • Preservation of customer relationships and goodwill
   • Prevention of solicitation of employees or clients
   • Restriction of activities related to the specific business interest.
8. Mr Hedditch then opined that 'without such a restraint' that it would not be commercially rational for a purchaser to buy units.
9. Once again, in my view, Mr Hedditch's opinion addresses the wrong counterfactual. The question is not whether a buyer would purchase units without any restraint but whether a rational buyer would purchase units with a different restraint.
10. Mr Hedditch then opines that the value of units would be significantly reduced without a restraint. For that opinion he relies on three transactions:

(a) a 'normal' transaction involving a three year restraint which involved a multiple of 3.25;

(b) a transaction with a 12 month restraint which involved a multiple of 2.71; and

(c) a transaction involving no restraint which involved a multiple of 1.98.

1. The last of those transactions is plainly inconsistent with the view expressed by Mr Hedditch that no buyer would purchase units without a restraint. It is also plainly inconsistent with Mr Rundle's view that the sale of units without restraint would warrant a 80% to 90% discount.
2. Ms Murone's evidence, which again I accept, was that not much could be drawn from Mr Hedditch's examples. One was a sale by an administrator and was not a sale by a willing party and so one would expect a lower multiple. The restraints were described simply in terms of time without reference to what other restraints might have been in those agreements and what other relevant circumstances there might be.
3. Taking all of that evidence together, I am satisfied there would have been no reduction in the value of the units if the sale agreement had contained the restraints in clause 6.1.2 and 6.2 but not the restraint in clause 6.1.1. I find that if Mr Kardamitsis had breached the restraint that there would be no basis in the evidence for awarding damages for breach based on the putative reduction in value of the units which JANJ acquired.

1. JANJ made an alternative claim 'in restitution' for the entire purchase price.
2. It has been clear for some time that:

Unjust enrichment therefore has a taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another. In that aspect, it does not found or reflect any "all embracing theory of restitutionary rights and remedies".[19]

1. In that context I asked counsel for JANJ how precisely the claim was put.
2. Counsel for JANJ made clear that the claim in restitution was only pressed in the event the restraint was held to be unreasonable. In that event, JANJ sought to recover the purchase price on the basis of a failure of consideration. However, the restitutionary claim would not be pressed if I had held Mr Kardamitsis had breached the restraint (in other words, that it was enforceable).
3. Restitution will not be allowed where it would make a nonsense of the refusal to enforce the contract.[20] I am inclined to think that would be the case here.
4. In any event, in my view, had I held the restraints were unenforceable, such a restitutionary claim would fail for the reason that the evidence would not establish that Liverpool Corporation had been unjustly enriched. JANJ paid Liverpool Corporation for units, the evidence of Ms Murone (which in this respect was accepted by Mr Rundle) is that those units are worth more today than they were when they were purchased and I have found that even without the restraint in clause 6.1.1, the units would have been valued the same at the time they were purchased. Even if Mr Kardamitsis was in breach of the restraint I would not have held there was a failure of consideration.

1. If Nelson Alexander and JANJ had established a breach of the restraint by Mr Kardamitsis they would have been entitled to nominal damages only. Whilst a party has a right to such relief where a breach of contract is established, serious questions must arise as to whether a party who has suffered no actual loss and who, as I have held, has no real need for interlocutory or declaratory relief is acting consistently with their obligations under the Civil Procedure Act 2010 (Vic) in bringing such a claim.

1. For the reasons outlined above the plaintiffs' claims should be dismissed. The parties should file consent orders regarding costs within seven days or failing consent should file competing costs orders with short submissions of no more than three pages.

[1] (2015) 256 CLR 104.

[2] Ibid 116-117, [46]-[51] (citations omitted).

[3] Just Group Ltd v Peck [2016] VSCA 334; (2016) 344 ALR 162, 173 [30] (Beach and Ferguson JJA and Riordan AJA) ('Just Group').

[9] [1987] FCA 70; (1987) 17 FCR 505.

[14] Just Group 174 [33]; 2nd Chapter Pty Ltd & Ors v Sealey & Ors (No 2) [2024] VSC 672, [114] ('2nd Chapter').

[15] [2015] VSCA 230.

[16] Ibid [50]-[53] (Osborn and Kyrou JJA) (citations omitted).

[17] [2016] VSC 42.

[19] Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498, 516 [30] (French CJ, Crennan and Kiefel JJ).