Stephens & Tozer Solicitors v Lambridis & Anor [2026] QDC 38

[5] Stephens & Tozer seek to recover from the defendants an account of profits or damages for breach of contract or equitable compensation in the sum of $173,314.46.

[6] Stephens & Tozer pleads that it was and remains a legal practice pursuant to the provisions of the Legal Profession Act 2007 (Qld), capable of suing and being sued.

[7] Stephens & Tozer allege that between 1 July 2019 and 2 April 2020 it employed Ms Lambridis.

[8] The express terms of the employment contract are said to have included:

(a) That a minimum notice period of four (4) weeks was required to be given by the First Defendant in the event of resignation;

(b) That the first defendant would not solicit any clients from the plaintiff for at least 12 months after resignation by the following clause:

"You agree that you will not, without the written consent of the Employer, during the period of 12 months after termination of your employment:

(i) Solicit, canvass, approach or accept any approach from any person or organization who was at any time during the 12 months prior to your employment, been a client..." (the Non-Solicit Clause)

[9] It was alleged that on a proper construction of the non-solicit clause of the employment contract, or alternatively as a term implied by law, Ms Lambridis was under a duty to act in good faith and with fidelity and that this meant that she was obliged, during the period of her employment and for 12 months after termination of her employment not to solicit, canvass, approach or accept any approach from any person or organisation who was at any time during the 12 months prior to the end of her employment, a client of Stephens & Tozer.

[10] Further, it was alleged that Ms Lambridis owed fiduciary duties to Stephens & Tozer not to obtain any unauthorised benefit from her position as an employee and not to place herself in a position of conflict between her personal interests and her duty to act in good faith and with fidelity towards Stephens & Tozer.

[11] It is alleged that on 2 April 2020 at 9:28am the first defendant resigned from her employment. It is alleged that in breach of her notice period, the resignation was said to be effective immediately.

[12] It is alleged that Ms Lambridis immediately thereafter commenced practicing as the principal (as that term is defined in s7(4) of the Legal Profession Act 2007 (Qld)) of the law firm, 'Lawlady', which practice was operated through the corporate entity, LawLady.Com.Au Pty Ltd.

[13] Stephens & Tozer allege that Ms Lambridis breached her contractual and fiduciary duties by:

(a) Enticing a client of the firm, Ms Urissa Chinia, away from the firm; and

(b) Concealing from the firm a request from a potential client, Mr Lukas, that she act for him until she was ready to start her own practice and then took advantage of the opportunity that her newly formed practice act for Mr Lukas.

[14] By her defence, Ms Lambridis denies that the firm, Stephens & Tozer, was at all times capable of suing and being sued on the basis that the business name, Stephens & Tozer, held by Mr Rodney Sahay with ABN 88 512 782 956 was not registered until 6 September 2019.

[15] Ms Lambridis further does not admit that she was employed by Stephens & Tozer (ABN 88 512 782 956) and says that her employment was with a partnership of that name with ABN 60 847 706 103. In closing written submissions it was contended by their counsel that Mr Sahay under the name Stephens & Tozer did not have standing to bring these proceedings because it was not a party to the contract of employment.

[16] Although Ms Lambridis denies that the Employment Contract contained the two express terms pleaded she admits, as to the allegations relating to a proper construction of the non-solicit clause and the implied term, that "the non-solicit clause was valid during the term of employment_"._

[17] Ms Lambridis denies she breached the employment contract with the plaintiff or solicited or canvassed any party during her employment.

[18] Ms Lambridis admits that she had a fiduciary duty to her employer during her employment and impliedly the content of that duty as alleged but denies she had a fiduciary duty to her employer after her employment as the duty was terminated after leaving her employment.

[19] Ms Lambridis admits that her resignation was effective 2 April 2020 but denies that her resignation was in breach of her employment contract and further says that:

(a) she was not required to work out the notice period;

(b) the contract did not provide that she was required to give 4 weeks' notice but rather that she was requested to do so;

(c) in the alternative, Mr Sahay had waived any requirement to give 4 weeks' notice; and

(d) further and in the alternative, Mr Sahay had notice from at least 16 January 2020 of Ms Lambridis' intention to resign and start her own law practice.

[20] Ms Lambridis admits that from on or about 3 April 2020, Ms Lambridis commenced practice as the sole principal of the firm, Lawlady.

[21] Ms Lambridis does not admit that Ms Chinia was a client of Stephens & Tozer (ABN 88 512 782 956) but says that, on or about 2 April 2020, Ms Chinia requested that Ms Lambridis act on her behalf and further says that Mr Sahay, expressly or impliedly, consented to Ms Lambridis acting for Ms Chinia.

[22] Ms Lambridis denies that she solicited Ms Chinia as a client.

[23] Ms Lambridis denies that Mr Lukas had ever communicated an intention to any party to retain the plaintiff, through Ms Lambridis, as his solicitor in a family law matter.

[24] Ms Lambridis admits that a cost agreement was sent to Mr Lukas on 3 April 2020 and was executed by Mr Lukas that same day.

[25] Having regard to the pleadings, there are three primary issues in dispute; firstly the parties to the contract of employment, secondly whether Ms Chinia was enticed away by Ms Lambridis and thirdly whether Mr Lukas ought to have been a client of the firm. For the purpose of considering the issues, it will be necessary to consider the effective date of Ms Lambridis' resignation.

[26] Evidence was given at the trial by Mr Sahay and Ms Chinia for the plaintiff and Ms Lambridis for the defendants.

[27] In relation to the employment issue, Stephens & Tozer rely upon a letter dated 17 June 2019 sent under the letterhead of Stephens & Tozer as it then was to Ms Lambridis. The letterhead listed the ABN of the partnership as 60 847 706 103 and listed the partners of the firm as Ross K McTaggart, Ian C Diehm and Rodney D Sahay. The contact person was listed as Rodney Sahay and the letter was signed by Rodney Sahay, Partner.

[28] The letter contained the express term quoted in the pleading but, as Ms Lambridis pleads, only says that a minimum notice period of four (4) weeks in writing is "requested".

[29] The letter confirmed Ms Lambridis' appointment as solicitor with Stephens & Tozer effective 1 July 2019. Ms Lambridis signed the letter acknowledging receipt and accepting the terms and conditions on 17 June 2019.

Oral Evidence of the contractual arrangements

[30] Mr Sahay explained that the structure of the firm was that of a sole practice which had commenced on 1 July 2019. Prior to 1 July 2019, the firm was operated as a partnership with three partners, Ross McTaggart, Ian Diehm and himself. He said that he did not buy out the other partners but that they became consultants of the firm. Mr Sahay accepted it was the partnership ABN that was on the letter of 17 June 2019 and that he had a different ABN.

[31] Mr Sahay said he had first met Ms Lambridis in June 2019. He explained that he was looking for a family lawyer as the senior family lawyer was retiring on 30 June 2019. Ms Lambridis had applied for the job and provided her resume. He said he was the sole person to conduct the interview. He said he could recall advising Ms Lambridis that as of 1 July 2019 he was taking over the firm as a sole practitioner.

[32] Ms Lambridis said in evidence in chief that the change to the partnership only came to her attention after the event. She said she was not aware of the change on the day of signing the contract nor when she commenced employment.

[33] Initially in cross examination Ms Lambridis also did not accept that she was told in the interview that two partners were retiring and that Mr Sahay was taking over the firm on his own account.

[34] Ms Lambridis was then taken to an affidavit she affirmed on 3 June 2025. The affidavit was filed in support of her application for summary judgment. Ms Lambridis was taken to that part of the affidavit where she had sworn:

"(d) RDS specially stated to me during my interviews that I will be commencing my employment:

1. On 1 July 2029 as per the express term of the Employment Contract; and

1. With RDS continuing 'the business called S&T' as 'one and the same' as his new business which would continue to be named 'S&T' to leverage off of the former business partnership entity's longevity in the name as advertised "operating S&T since 1904" to the world at large; and
2. that on the 30 June 2019 that the previous partnership would be dissolved; and
3. that 'Ross (Partner 1) and Ian (Partner 2) are leaving that day'."

[35] When taken to the statements made in each of the sub-paragraphs, her answers became evasive particularly when taken to sub-paragraphs iii, iv and v. In giving her answers, following being questioned a number of times, Ms Lambridis did not deny what she had sworn in the affidavit but said there was no absolute discussions as to the partners; saying that the partners remained at the firm and it was not discussed in what capacity or how long. Later she said that there was no clarity around the partnership and Mr Sahay. She alleged that there were throw away lines in the interview and stated, "I was none the wiser as to whether I should have believed Mr Sahay at that time or not." She said, "I was in a position of power imbalance. I was the very junior lawyer under supervision at a time when there's no employment."

[36] At that point, she was then asked again, whether Mr Sahay in the interview said to her words to the effect of what is in sub-paragraph iii. She responded, "What I can say is that the information I say he provided to me, I am unsure as to whether that is the truth." When told the question was a yes or no to whether he said the words stated, she ultimately answered, "Yes".

[37] Ms Lambridis was taken to the other sub-paragraphs iv and v and agreed that she was told those matters in the interview.

[38] Ms Lambridis was taken to an email she sent to Mr Sahay on 19 March 2020. In the email, Ms Lambridis referred to revoking "our current employment agreement executed on 1 July 2019 for all time" and proposed a consultancy agreement. When asked about the agreement to which she was referring, she accepted it was the agreement executed on 17 June 2019. Ms Lambridis would not accept that the reference to "our" reflects her understanding of the agreement, consistent with what she was told in her interviews with Mr Sahay that it was Mr Sahay, as sole trader, who was employing her.

[39] The denial does not ring true on the face of the document. The use of the word, "our" necessarily implies a duality between the two protagonists. The implausibility is reinforced by the plain words of the affidavit, which makes it clear that the employment contract was to be with Mr Sahay, trading as Stephens & Tozer. The untruthfulness of this version of events became apparent during the evasive answers given by Ms Lambridis to each of the questions posed to Ms Lambridis with respect to the affidavit and the email.

[40] That some substantial case was sought to be made of the difference between the ABN on the letterhead of the letter and the ABN in fact used by Stephens & Tozer when owned solely by Mr Sahay is remarkable given that this is simply a business name number and does not represent a legal entity.

[41] The affidavit supports the oral evidence given by Mr Sahay on the topic. His evidence should be accepted.

[42] I find accordingly that a contract of employment existed between Stephens & Tozer and Ms Lambridis in the terms contained in the letter dated 17 June 2019.

[43] As to the timing of the resignation, Mr Sahay said that Ms Lambridis contacted him on 2 April 2020 advising him that she was resigning. He said that, to the best of his recollection, Ms Lambridis phoned him sometime after 9 o'clock. He said he recalled that the effect of the words said was that she was resigning that day. He said that "took [him] by shock and surprise because that's the first instant ...I had where she was going to resign." He said he had a definite recollection of telling Ms Lambridis to send an email to himself and the office manager. He confirmed an email was sent by Ms Lambridis dated 2 April 2020. He said it was received probably about half an hour after the phone call. That recollection is consistent with the time stamp on the email of 9:28am.

"As discussed just now on the telephone, I tender my resignation to you effective immediately."

[45] When asked as to when he first became aware that Ms Lambridis was intending to practice through a company called 'Lawlady.Com.Au.Pty Ltd', he initially responded that he became aware when looking through her computer. He said that looking through her emails he had discovered that she was potentially setting up a firm, Lawlady.

[46] Mr Sahay was taken to an email sent from Ms Lambridis to him on 19 March 2020 and asked whether that refreshed his memory as to an earlier discussion. He said, looking at that email, there was a proposal put to him by Ms Lambridis, prior to her resignation. The email from Ms Lambridis detailed the terms of a future Consultant Agreement which she proposed would take effect on 1 April 2020. He said he did not have any recollection of the meeting of 19 March 2020, which is referred to in the email.

[47] In the email, Ms Lambridis makes reference to the proposed agreement being between Rodney Sahay as Director Principal of Stephens & Tozer and herself as Director Principal of LawLady.com.au.

[48] Mr Sahay said that it was at that meeting he became aware of LawLady and not before.

[49] Ms Lambridis said that she had informed Mr Sahay about LawLady in her initial interview. She said she had given Mr Sahay the business card that was printed with LawLady on it. When reminded in cross examination that the business card had not been produced in the proceedings, Ms Lambridis responded that she was told it was irrelevant but that she could still produce it. It was not in fact produced at the trial.

[50] Ms Lambridis said that she had numerous meetings with Mr Sahay in early January where she made known her plans.

[51] Ms Lambridis accepted each of the steps she had taken, prior to her resignation, to set up LawLady. She accepted that on 28 April 2019 LawLady.Com.Au Pty Ltd was incorporated, by January 2020 she had established a website thelawlady.com.au, on 19 February 2020 she had registered the business name of LawLady and on 21 February 2020 the company had entered a service agreement with Servcorp Virtual Office.

[52] She accepted that on 19 March 2020 she had sent an email to Worrells Solvency and Forensic Accountants requesting that they add her new Law Practice and her new email contact address. In addition, in cross examination Ms Lambridis was taken to two emails she had sent or had others send to her LawLady email address, which attached documents obtained while still working at Stephens & Tozer, including a pro forma document. Ms Lambridis did not accept these documents were sent to assist her in setting up her new company; though under cross examination she offered no explanation for the forwarding of the documents to herself.

[53] When it was put to her that throughout February and March 2020, she was actively preparing to set up practice on her own through LawLady, she responded, "With disclosure to Mr Sahay, yes."

[54] I have considerable difficulty accepting any evidence of Ms Lambridis. Her oral evidence in relation to the conversation preceding the letter of employment was simply untrue; as demonstrated by the documents authored by her. I do not accept that Ms Lambridis had made disclosures to Mr Sahay as to the extent of her activities to set up her new practice. I accept that on 19 March 2020 Mr Sahay became aware of the proposal for Ms Lambridis to create her own practice LawLady and become a consultant to him through that vehicle, but that is altogether a different matter from her resigning from the firm. I accept his evidence that he was shocked by the resignation.

[55] In giving evidence in chief Ms Lambridis said she resigned on 1 April 2020. She said that Mr Sahay had asked for a day to consider her employment contract and that on 2 April he rejected her consultancy agreement proposal and issued her an ultimatum to either stay as an employee or resign. She said she then telephoned Mr Sahay the following morning with her answer, "I resign, effective immediately."

[56] In cross examination Ms Lambridis continued to insist that she had resigned on 31 March, 1 April and again on 2 April. She said she had had so many discussions "which I did diarise", but she had not disclosed any file notes of the conversations in these proceedings, and none were produced at trial.

[57] Ms Lambridis accepted that the email sent 2 April confirmed her resignation and agreed it referred to her conversation with Mr Sahay on the morning of 2 April, just prior to sending the email and agreed that was the extent of the conversation.

[58] Again, the change in her evidence confirms that her earlier oral evidence on this issue should not be accepted. The documentary evidence makes clear the date of her resignation.

Evidence in relation to the client, Ms Chinia

[59] Mr Sahay said that the next day he received an email from Ms Chinia "essentially stating that...we were no longer acting for her." He said that Ms Lambridis had primary conduct of Ms Chinia's matter but that he was the supervising partner.

[60] He said he did not have any conversations orally with either Ms Lambridis or Ms Chinia on 3 April 2020. When asked whether he was aware that Ms Chinia's matter was set for mediation the following Monday, he responded, "I think I was, yes."

[61] He said he had not consented to Ms Lambridis acting in that mediation.

[62] When asked about the mediation, he acknowledged that the email correspondence with the mediator, Dr Brasch, confirmed that a mediation agreement in relation to the upcoming mediation had not been entered between his firm and Dr Brasch. He accepted that Dr Brasch had originally indicated, in responding to an email request made by Ms Lambridis, that she could not accept instructions from a different firm in relation to the mediation unless the original agreement was terminated. In the absence of an agreement, however, he acknowledged that Dr Brasch had confirmed to Ms Lambridis that she could continue to act as mediator.

[63] When asked in re-examination as to whose responsibility it was to have the mediator's agreement executed, he said Ms Lambridis.

[64] In cross examination he accepted that the firm had brought a claim against Ms Chinia for moneys payable to the firm. He said the claim was successful but not all the monies had been paid.

[65] Ms Chinia, in giving her evidence, referred to a conversation with Ms Lambridis in January 2020. She agreed there had become a time when it was necessary to commence court proceedings and she had gone to Stephens & Tozer in order to execute some documents. She said both Rodney and Chyrse were in the boardroom. After the documents were executed, she said that Chyrse had told her they needed to walk to the Family Court and file the documents. She said they entered the courthouse but were told that the documents had to be filed electronically.

[66] She said, on the way back, Chyrse had told her that she needed to talk to her about leaving the firm. She said they stopped on Roma Street, opposite the Roma Street train station. She said that there was a pub there and Chyrse had said she wanted to get a drink and discuss this further. She said Chyrse went up to the bar and purchased a beer and a lemon lime bitters and came back. She said Chyrse left her court documents on the bar table and she felt that was "really weird" so she took a photo of it because she thought "it was really unprofessional". She said she also took a photo of Ms Lambridis. Both photos were tendered as part of exhibit 1.

[67] She said that Chyrse told her that she was going to leave the firm, and she said told her "if I stayed at Rodney's firm, that they would have...other solicitors have to redo and look over everything because she had the files, and she knew my case inside and out." She said she "felt guttered" and "distressed" because she had already signed on a deferred payment. She said she told her that if she did stay at Stephens & Tozer "the bill would be more expensive, because ... they would have to get other lawyers to look at the files since she was the one working on them and had them."

[68] She said that Chyrse had said she was disgruntled with Rodney and that she was not being paid enough money.

[69] In cross examination, Ms Chinia was asked, given the location of the family court in Tank Street, why would you go down to the Transcontinental. She responded that Chyrse was the one that led the way and "she picked that hotel".

[70] She said that Ms Lambridis some time later phoned her again. She said she recalled it was sometime after her birthday "between the end of February and after March". She said she had called to discuss whether or not she was going to terminate with Rodney. She said Chyrse offered to help her get out of the contract with Rodney, however, she said she would have to pay for that advice. She said that Chyrse once again said to her:

"if I had stayed with Rodney's firm that I would be screwed because the other solicitors would have to look into my case, and,...they didn't know the case, she knew it inside and out, and that she could represent me...and I would get the best outcome with her".

[71] She said she listened to Chyrse and paid for that advice. She said she terminated the agreement with Stephens & Tozer in April, just after the phone call with Chyrse. She was referred to an email sent to Stephens & Tozer dated 3 April 2020 and confirmed that was the email she sent terminating the services of Stephens & Tozer. She said that email was drafted by Chyrse.

[72] Ms Chinia accepted that both Stephens & Tozer and Ms Lambridis had judgment debts against her for non-payment of fees. She was asked whether she had been offered any compromise or inducement by Stephens & Tozer in exchange for her testimony and she said no. In answering a question asked in cross examination about the fees, she did express annoyance at the continuing claim by Ms Lambridis and said, "she's claiming that I owe her more money which is not true."

[73] In giving her evidence Ms Lambridis said that she could not recall going to the Transcontinental Hotel and in fact said she did not know where the hotel was.

[74] In cross examination she did not accept that that they had gone to the Transcontinental Hotel and nor that she asked Ms Chinia to join her for a drink. She did not accept that she had told her she was going to leave Stephens & Tozer, that she was only going to take valuable clients with her or that she knew Ms Chinia's case inside and out and better than anyone.

[75] She denied that she had ever had a conversation with Ms Chinia in which she had asked her if she wanted to terminate the client agreement with Stephens & Tozer.

[76] She accepted that she did agree to do Ms Chinia's fees on a deferred payment basis.

[77] Ms Lambridis was unable, when requested and despite her evidence, to identify any email in which Ms Chinia had asked her to act for her.

[78] Ms Lambridis was taken to her affidavit sworn 3 June 2025 and to her statement in the affidavit that she initially declined to act for Ms Chinia "as this would be a breach of my employment contract". In the affidavit she referred to having contacted the Law Society and being told she had a professional obligation to act. Ms Lambridis did not accept that the Law Society did not give her advice or direct her to act and the reference to such advice was a recent invention. Ms Lambridis was reminded it was also not something she mentioned in her letter of 27 April 2020. When asked as to why there was no reference in her defence to having received advice, she responded that she certainly told her solicitors.

[79] I do not accept Ms Lambridis' evidence on this issue. While it was clear that Ms Chinia bore a resentment towards Ms Lambridis, she in fact owed monies to both Stephens & Tozer and Ms Lambridis. There is no reason to doubt the photos taken by Ms Chinia and the oral evidence given by Ms Chinia. The email terminating the services of Stephens & Tozer was sent the day after the resignation of Ms Lambridis and gives the impression of having input from a lawyer. No conclusion is possible other than whilst Ms Lambridis was employed by Stephens & Tozer she persuaded Ms Chinia to come to her new firm from 3 April 2020.

[80] Mr Sahay said that Ms Lambridis had never discussed with him a person by the name of Mr Alex Lukas nor to his knowledge had she discussed a family law matter coming out of Sydney.

[81] Ms Lambridis was asked about her relationship with Mr Lukas and she said that he was "a long term family friend of over 20 years". Ms Lambridis confirmed that at the relevant time Mr Lukas was living in Sydney.

[82] She said that Mr Lukas did not approach her about representing him in any particular matter until she started her own practice. She said he then contacted her and asked if she could assist. She said that was after 3 April 2020 and he asked her to represent him in his family law matter. She confirmed that she also knew Mr Lukas' partner, Mr Vo.

[83] In cross examination Ms Lambridis was taken to her letter to Mr Sahay of 27 April 2020 in which she referred to the in-person conference on 19 March where she had mentioned having been requested to act in a Sydney matter and in which she asserted that she said she would be commencing her own law practice as at 1 April. Ms Lambridis did not accept that was a reference to Mr Lukas having asked her to act. She responded that she had other clients in Sydney.

[84] It was also suggested to her that by her letter of 27 April she was trying to create the impression the issue had previously been discussed with Mr Sahay. She curiously responded that she did not recall. In fact, in the email of 19 March, to which reference is made in that letter, rather than informing Mr Sahay that she was going to resign on 1 April 2020 merely sets out a consultancy proposal for an arrangement that she wished would commence that day.

[85] In her affidavit sworn 3 June 2025 Ms Lambridis said that Mr Lukas "intentionally and purposely came to Brisbane unambiguously seeking me out personally to discuss his matter and to ask me face to face in person to act for him, which I did."

[86] When it was put to her that he must have then come to Brisbane on 3 April and executed the costs agreement, she responded, "I can't comment on that." There was then the following exchange:

"You didn't keep your intentions about starting up Lawlady a secret from Mr Lukas?---I don't recall.

Well, you were old friends. You have said to him what your plans were?--- Not necessarily.

Suggest to you that, in fact, Mr Lukas asked you to act while you were an employee of Stephens & Tozer?---No.

And that you agreed to act for him once you'd resigned your position with Stephens & Tozer?---After I resigned?

My suggestion is that, during the period of your employment, you agreed with Mr Lukas that you would act for him after you resigned? ---I can't recall that.

You didn't tell Rodney about your communications with Mr Lukas in relation to his intention to retain you, did you?---I don't recall that.

Your conversations with Mr Lukas gave you the confidence to start Lawlady's operations didn't they?---Not - no. No, not specifically.

Because you knew there was a significant property pool which could fund your fees going forward?---Is that a question?

I'm asking you to agree or disagree with that proposition?---I disagree."

[87] None of the answers constitute a denial of the allegations put. The response that she does not recall the events suggested indicates that Ms Lambridis was not telling the truth when she said that contact was only made with Mr Lukas after she commenced her own practice.

[89] In a text message sent to Mr Lukas' former partner, Mr Vo, on 28 March 2020. Ms Lambridis concluded, "Remember, regardless of everything, I do love you with all my heart". She denied that the message was written because she was going to act for Mr Lukas but did not suggest any other reason for that statement being made.

[90] A few days later on 3 April, one day after her resignation from Stephens & Tozer, Mr Lambridis sent an email to Mr Vo attaching a letter of 3 April 2020 which included a detailed proposal for the property settlement. Ms Lambridis disagreed that the instructions for that proposal must have been taken from Mr Lukas earlier than 3 April 2020 and that she had already agreed to act for Mr Lukas and started work prior to her resigning her employment. The denials are implausible.

[91] In any event in the email of 3 April Ms Lambridis thanks Mr Vo for the initial discussion by telephone on 31 March 2020 and said she awaits his reply. I do not accept her oral explanations that her reference to that day must be a typo and that the reference in the email was to a personal call she made that day.

[92] The proposal contained in the letter of 3 April is in fact very detailed and I do not accept that the instructions for that letter could have been taken that day. I further do not accept that the telephone conversation referred to in the email of 3 April was not a conversation regarding the property settlement, as distinct from a personal call.

[93] I accept that Mr Lukas had approached Ms Lambridis to act on her behalf while she was still an employee of Stephens & Tozer and she had held off accepting those instructions until she had resigned and was working in her new law practice.

[94] As concluded above, I accept the evidence of Mr Sahay that at the time of the interview he made known to Ms Lambridis that as of 1 July 2019 the business of the firm Stephens & Tozer, was to be carried on by Rodney Sahay as a sole trader and that her employer would be Mr Sahay trading under the name Stephens & Tozer. At that interview, it was made known to Ms Lambridis that the partnership was to be dissolved.

[95] As a result at the time of accepting the letter of offer on 17 June 2019, Ms Lambridis knew that Mr Sahay trading under the name Stephens & Tozer was to be her employer.

[96] The knowledge of Ms Lambridis is supported by her email of 19 March 2020 sent to Mr Sahay in which she refers to "our current employment agreement executed on 1 July 2019". In giving evidence, she confirmed that the employment agreement referred to in the email was the agreement executed by her on 17 June 2019.

[97] As described by Allsop P and Handley JJA in Air Tahiti Nui Pty Ltd v McKenzie:

"The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract. This is, to a point, a process of construction similar to the task of identifying whether a clearly contractual document (such as a bill of lading) is made with one party or another (such as a shipowner or time charterer) ... Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances ...."[1]

[98] As stated, I have found that the surrounding circumstances at the time of the acceptance of the letter of offer clarified any ambiguity created by the use of the letterhead of the partnership as it existed at 17 June 2019 and that it was known to both parties who were the contracting parties for the purposes of the employment agreement commencing on 1 July 2019. Ms Lambridis in fact commenced work on that date and there is no suggestion that any of the former partners were involved in her employment. Indeed the contrary is the case.

[99] Given my findings, Mr Sahay trading as Stephens & Tozer is the proper plaintiff to enforce the contract and has standing to bring the proceedings. No submissions were made which suggested that the ABN has any legal significance for these purposes.

[100] The written contract of employment contained the non-solicit clause set out above, but this clause, as the heading makes clear, only applied to post employment conduct, and, as the clause says, "during the period of 12 months after termination of their employment".

[101] In the statement of claim Stephens & Tozer sought to extend the construction of the clause to the period of her employment. Clearly that is not possible. It is well recognised, however, that the duty of an employee to act in good faith and fidelity does include an obligation not to take up a business opportunity within the scope of their employment.[2] In her defence, Ms Lambridis admits the validity of the non-solicit clause, though only during the term of her employment.

[102] The substantial factual issue in the proceeding in any event was whether or not Ms Lambridis, whilst employed by Stephens & Tozer, had induced two clients to go to her new firm rather than stay or become clients of Stephens & Tozer.

[103] I have found that there was a conversation between Ms Lambridis and Ms Chinia in which Ms Lambridis clearly suggested to Ms Chinia that she engage the services of her new firm and terminate the services of Stephens & Tozer. I accepted the evidence given by Ms Chinia and accept the discussions occurred while Ms Lambridis was still an employee of Stephens & Tozer.

[104] It is similarly apparent that during the course of her employment Ms Lambridis told and encouraged Mr Lukas not to engage Stephens & Tozer, but to wait until after she had established her own firm to engage a lawyer.

[105] It is well established that the relationship between an employer and employee is a fiduciary one.[3]

[106] As stated by the court in Anderson v Canaccord Genuity Financial Ltd:

"...we would readily conclude that an employed solicitor owes a fiduciary obligation to his or her employer, and the critical issue will be whether the conduct which is impugned falls within the scope of that obligation."[4]

[107] Ms Lambridis accepts that, during her period of employment, she was in a fiduciary relationship with her employer and does not dispute that the scope is as alleged by Stephens & Tozer. Her denial is only that the duty to her employer did not continue after her employment ended. However, by the conduct of its case, it is not alleged by Stephens & Tozer that the duty continued after the relationship was terminated.

[108] There is properly[5] no dispute that the scope of that duty included that as an employee Ms Lambridis must not obtain any unauthorised benefit from her position as an employee and must not place herself in a position of conflict between her personal interests and her duty to act in good faith and with fidelity towards the plaintiff.

[109] The issue is whether Ms Lambridis did the relevant acts in relation to the two people who became clients of her firm during the period of her employment.

[110] It is clear from the evidence that during the period of her employment, Ms Lambridis solicited Ms Chinia who was a client of the firm to engage her new practice and to terminate the services of Stephens & Tozer. It is also clear that Mr Lukas was asked by Ms Lambridis not to engage her services until after she had resigned as an employee, so that she could make the profit from his engagement herself.

[111] Those actions taken by Ms Lambridis during her period of employment were in breach of her fiduciary duty.

[112] Having found that Ms Lambridis was in breach of both her contractual and fiduciary obligations, the issue for determination is the question of relief.

[113] The plaintiff withdrew its claim for relief by way of declarations. There seemed to be no dispute that the plaintiff must now make an election as between the remedy of an account of profits or damages or compensation.

[114] It is accordingly inappropriate to give judgment. I rule only that the plaintiff is entitled to relief by way of an account of profits or damages or compensation at its election.

[115] I will hear the parties as to directions for the future conduct of the proceedings.

[1] [2009] NSWCA 429; (2009) 77 NSWLR 299, 304 [28].

[2] Deeson Heavy Haulage Pty Ltd v Cox [2009] QSC 277; (2009) 82 IPR 521, [65]-[67] [Deeson v Cox].

[3] Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 96-97 [Hospital Products].

[4] [2023] NSWCA 294; (2023) 113 NSWLR 151, 194.

[5] Deeson v Cox [2009] QSC 277; (2009) 82 IPR 521, [69]-[73].