W284 Pty Ltd v MRES Pty Ltd & Ors [2023] VCC 181

1. The plaintiff called the following witnesses at trial:

(a) Araf Mojaled, Trust Account Manager and Client Relationships Manager at W284 (Ms Mojaled); > > (b) Ms Tormey; > > (c) Donald Brindley, Valuer and Licenced Estate Agent (Mr Brindley); and > > (d) Mr Piccolo.

2. The defendants called the following witnesses at trial:

1. The parties submitted a Joint Statement of Key issues in Dispute on 8 August 2022 (Joint Statement), which is annexed to this judgment.

ISSUE A - ALLEGED BREACH OF RESTRAINT BY MS WILSON[15]

"Did the contract of employment between the Plaintiff and the Third Defendant contain an enforceable restraint of trade in the form of clause 2 of the 'Restricted Activity Agreement' at Schedule 3 of the employment agreement signed by the Plaintiff and Third Defendant (Employment Agreement)?"

1. In my view, the restraint contained in Schedule 3 is unenforceable. The clause does more than is reasonably necessary to protect W284's legitimate interest in its scope.

1. Clause 2 of Schedule 3 is titled "Restraints". It contains the following clause that Ms Wilson is alleged to have breached:

"2.3. To reasonably protect the goodwill of the Business, Carole Wilson agrees that, without the prior written consent of Woodards, they will not, whether directly or indirectly, during the Employment or during the Restraint Period:

(b) canvas, solicit, approach or accept an approach from any Client or Supplier, which:

(i) Carole Wilson or Woodards had dealings with in the course of the Employment; or if that definition is too broad; or if that definition is too broad

(ii) during the 12 months prior to the termination of the Employment, Carole Wilson had dealings with in the course of the Employment;

with the view of soliciting for Carole Wilson's benefit, or the benefit of a third party in competition with Woodards, the business of that Client or Supplier."

1. It is necessary to consider only clause 2.3(b)(ii). Mr Korman submitted it makes little difference if the broader restraint is severed.[16] Mr Galbraith conceded that "it may be possible to strike out or sever 2.3(b)(i) because it is obviously too broad"[17] and "the parties... are focusing on 2.3(b)(ii)".[18]
2. Clause 1 of Schedule 3 is titled "Definitions" and is relevantly as follows:

"Unless the contrary intention appears, the following expressions shall have the following meanings in this Schedule:

1.1. A reference to Woodards shall include all entities, corporate or otherwise, that are related to or associated with Woodards;

(a) the real estate business of Woodards being the provision of services associated with sales, acquisitions, leasing and/or management of residential, commercial, retail, industrial, recreational, hotel, retirement and any other leasehold or real property and/or businesses; and

(b) any other business in which Carole Wilson provides, or provided, services in the course of the Employment;

1.3. "Client" means any person, corporation or other entity to whom Woodards has provided services to in connection with the Business and includes persons, corporations or other entities with whom Carole Wilson has held discussions or provided proposals to regarding the provision of services by Woodards;...

1.5. "Employment" means the employment of Carole Wilson by Woodards;

1.7. "Supplier" means any person which has supplied goods or provided services to Woodards in connection with the Business." (emphasis in original)

1. Part 3 of Schedule 3 is titled "Operation". It relevantly provides as follows:

3.2. Each of the restraints in this Schedule are to have effect as a separate, severable and independent restraints, each from the other and as regards each Restraint Period so that the invalidity or unenforceability of any restraint in respect of any Restraint Period does not affect the validity or enforceability of any remaining restraint.

3.3. If there is any inconsistency or contradiction between the restraints in this Schedule, the restraint with the longest Restraint Period constitutes the restraint agreed between Woodards and Carole Wilson to the exclusion of any other restraint."

1. Part 5 of Schedule 3 is titled "General". It relevantly provides as follows:

5.4. In the event that a provision of the agreement contained in this Schedule being ruled by a Court to be invalid or unenforceable, that provision will be read down, or if it cannot be read down so that the provision is valid or enforceable, severed. ..."

1. In The Restraint of Trade Doctrine, J D Heydon (writing extra-judicially) said:[19]

"A post-contractual restraint on an employee is not valid unless there is a 'legitimate' or 'proprietary' interest meriting protection. Normally, those interests are confidential information and connection with customers."

1. Mr Korman submitted that the plaintiff's interest in "... protecting its connection with the landlords with whom Wilson had forged a close bond was a legitimate interest meriting protection by a post-contractual restraint of trade."[20]
2. Ultimately, it was accepted by Mr Galbraith and I find that W284 had a legitimate interest in protecting its customer connection with landlords of the properties managed by W284 on its rent roll:

"HER HONOUR: ... I take it you accept that customer connections is a legitimate interest which may be protected?

MR GALBRAITH: Yes, customer connection with respect to these property manager clients."[21]

1. In Birdanco Nominees Pty Ltd v Money (Birdanco),[22] the Victorian Court of Appeal set out the approach to the interpretation of a restraint and the application of the rule as to reasonableness to see whether the restraint goes too far:

"The principal rule of construction is that when a covenant or agreement is impeached on the ground that it contains an unreasonable restraint of trade, the duty of the Court is, first to interpret the covenant or agreement itself, and to ascertain according to ordinary rules of construction what is the fair meaning of the parties, and then to apply the rule as to reasonableness with reference to the extent of the impeached covenant, and to see whether it goes too far. Like any other contractual clause, 'a covenant in restraint of trade is in the first place to be construed in accordance with the natural and ordinary meaning of its words.' The impeached clause should be construed with reference to the object sought to be obtained.

These principles of construction were confirmed by Dixon CJ in Butt v Long where he said:

'An agreement in restraint of trade, like every other agreement, is to be construed with reference to its subject matter and descriptive words may be restricted in their operation by reference to the circumstances in which the parties contract. But the agreement should be interpreted for the purpose of ascertaining its real meaning independently of the rules prescribing the tests of reasonableness for the purpose of ascertaining its validity. If an evident ambiguity appears from its text it may be proper to take into account the law relating to the validity of covenants in restraint of trade in resolving the ambiguity, but a restrictive interpretation of general words is not to be adopted simply to save a covenant ... from invalidity.'" (citations omitted) (emphasis added)

1. In Just Group Ltd v Peck,[23] the Victorian Court of Appeal noted the following:

"(a) The meaning of the restraint clause may be construed by reference to the factual matrix, documentary context and surrounding circumstances to ascertain its real meaning - independently of the rules prescribing tests of reasonableness for the purpose of ascertaining its validity.

(b) Where there is ambiguity, a restraint clause in an employment contract will be construed in favour of the employee so that, as between two reasonably available constructions, the one which imposes the lesser obligations on the employee will be preferred..." (citations omitted)

1. As the High Court said in Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (Toll v Alphapharm):[24]

"The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction." (citations omitted) (emphasis added)

1. When considering what a reasonable person would have understood a commercial contract to mean, it is usual to consider the "commercial purpose or objects" underlying the agreement:[25]

"As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties ... intended to produce a commercial result'. A commercial contract is to be construed so as to avoid it 'making commercial nonsense or working commercial inconvenience'." (citations omitted) (emphasis added)

1. It is well settled at common law that post-employment restraints are prima facie void and unenforceable due to being contrary to public policy.[26]
2. The attitude of Victorian courts in relation to post-employment restraints is summarised by Hollingworth J in Brilliant Lighting (Aust) Pty Ltd v Baillieu.[27] Her Honour said that when an employee leaves employment:[28]

"He or she is free to set up a directly competing business ... to approach former employer's customers and solicit business from them ... [and] to use for their own purposes any information which they carried in their heads ... The presumption of invalidity may be rebutted by showing that the restraint was justified because it is reasonable in the interests of the parties and the public."

"A party who seeks to enforce a restraint of trade provision bears the onus of proving that the provision goes no further than is reasonable to protect its legitimate interests. Relevant considerations include:

(1) The scope of the restraint in terms of both the geographic area and duration;

(4) The consideration paid in exchange for the restraint; and

1. This test is applied against the circumstances that operated immediately before a defendant signed their employment contract.[30]

1. The plaintiff submitted that the restraint does no more than is reasonably necessary in its scope to protect W284's legitimate interest.

1. The reference to "Woodards" in the restraint ought to be construed as a reference to W284 and not a reference to "all entities, corporate or otherwise, that are related to or associated with Woodards" as defined. The definitions apply "[u]nless the contrary intention appears". A contrary intention appears from the following:

(a) the employment agreement defines W284 Pty Ltd as "Woodards":

(b) clauses 1.1, 2.5 and 3.2 of the employment agreement refer to "Your employment with Woodards", which could only be a reference to Ms Wilson's employment with W284;

(c) the term "Woodards" is used in other clauses of the employment agreement where it could not be a reference to a composite group of entities and could only mean W284, for example:

(i) clause 2.6(a): "... You are required to undertake other duties and responsibilities from time to time, which are within Your reasonable capability, as directed by Woodards";

(ii) clause 2.8: "You agree to inform Woodards immediately should anything arise that may prevent You from devoting all of Your working time, attention and abilities to the performance of the Position";

(d) the definition of "Employment" in Schedule 3, being "the employment of Carole Wilson by Woodards", could only mean the employment of Ms Wilson by W284. Wilson was not to be employed by (and in fact was never employed by) any other entities, corporate or otherwise, related to or associated with Woodards;

(e) reference to "Woodards" in the execution clause in Schedule 3 could only be a reference to W284, because Mr Piccolo signed only on behalf of W284:

1. The plaintiff submitted that, although the definitions of "Client" and "Supplier" are broad and made broader by the definition of "Business", on its true construction, the restraint only prohibits contact that is relevant to Ms Wilson's role as a property manager. The text that falls below clause 2.3(b)(ii) refers to business with a lowercase 'b':

"... with the view of soliciting for Carole Wilson's benefit, or the benefit of a third party in competition with Woodards, the business of that Client or Supplier." (emphasis added)

1. Business with a lowercase 'b', as opposed to Business with an uppercase 'B', should be interpreted to mean the business in which Ms Wilson was employed (i.e. leasing and management of residential properties). This is the objectively apparent intention, since the restraint ought to be construed as intending to protect against Ms Wilson soliciting business from Woodards' Clients and Suppliers with whom she had dealings in the course of her employment as a property manager with W284. The definitions "merely [delineate] the universe from which the very small group of clients and suppliers with whom Ms Wilson had contact, had dealings is selected"; that is, Clients' and Suppliers' business in relation only to leasing and managing of residential property.
2. Here, the nature of the business Ms Wilson was involved in is apparent from the surrounding circumstances. The restraint should be construed to restrict post-employment solicitation of similar business only.[31]

1. The plaintiff submitted the issue of what "had dealings with" means is a question of construction for the Court. According to Mr Korman:

"... whether 'dealings' is construed narrowly or broadly makes very little difference to this case, because Ms Wilson had direct contact with, I think, 18 of the 19 landlords, 30 of the 31 properties. She directly was in communication with them."[32]

1. There is no need for the plaintiff to adduce evidence connecting Ms Wilson to all persons caught by the definitions of "Client" and "Supplier", because the restraint is restricted to Clients and Suppliers with whom Ms Wilson had contact with during the 12 months prior to her resignation.
2. With respect to "Suppliers", the restraint would not prevent Ms Wilson from seeking to purchase products and services from a "Supplier" with whom she had had dealings in the final 12 months of her Employment with W284. It seeks to prevent Ms Wilson from soliciting business from W284's Clients and Suppliers, which is the opposite to purchasing goods or services. There is no ambiguity about the meaning of the word "solicit" but, if there was, it should be construed narrowly and confined to its relevant dictionary meaning:

"to endeavour to obtain (orders or trade), as for a business house."[33]

1. The restraint therefore does not affect Ms Wilson's freedom to contact "Clients" and/or "Suppliers" to acquire goods or services from them.

"For Carole Wilson's benefit, or the benefit of a third party in competition with Woodards"

1. The plaintiff submitted that common-sense principles should be applied when interpreting the phrase "for Carole Wilson's benefit, or the benefit of a third party in competition with Woodards".
2. The authorities establish that where a literal reading of the restraint includes a restriction on a capacity in which the employee is restrained that is an "improbable or extravagant contingency", the Court may consider that construction was not intended by the parties.[34]
3. The restriction on solicitation "for Carole Wilson's benefit" should be construed as a restriction on solicitation for Ms Wilson's benefit in any future capacity as a property manager. It is highly improbable that the parties intended the restraint to apply to benefits derived by Ms Wilson unrelated to a future role as a property manager.
4. Further, the restriction on solicitation "for Carole Wilson's benefit" is a separate covenant to the restraint of solicitation for "the benefit of a third party in competition with Woodards". Where a restraint comprises several distinct covenants, and severance can be carried out without the addition or alteration of words, excessively broad covenants can be severed. In this case, if necessary, severance could be applied as follows:

"... with the view of soliciting for Carole Wilson's benefit, or the benefit of a third party in competition with Woodards, the business of that Client or Supplier."

1. The restriction on solicitation for "the benefit of a third party in competition with Woodards" should be construed as a restriction on solicitation for the benefit of a business engaged in similar actives to those Ms Wilson was involved when she was employed by Woodards, namely leasing and management of residential property. The employment agreement identified that Ms Wilson's involvement in Woodards' business was to be as a Property Manager, and this was borne out by the evidence at trial.

1. The plaintiff submitted that there is no need to geographically limit a restraint that is already restricted to persons with whom Ms Wilson had dealings in the course of her employment in the last 12 months. The Clients and Suppliers that Ms Wilson communicated with had properties in and around City of Manningham.
2. In response to the defendants' example that Ms Wilson would be restrained from managing the property of a Woodards' client in Darwin should she moved there, the plaintiff submitted that this may be the outcome if the restraint was designed to work in a mechanical fashion. The restraint is not absolute and Ms Wilson could seek Woodards' prior written consent to engage in such conduct. In circumstances where Woodards was not active in Darwin, there would be no reason why consent would be withheld.
3. Mr Korman accepted, however that if Woodards were to act unreasonably and refuse consent, clause 2.3(b)(ii) would have the effect contended for by the defendants, because the restraint precludes Ms Wilson from soliciting business for her benefit, not just for the benefit of a third party in competition with Woodards.
4. As such, if the Court is of the view that the option to seek consent does not prevent clause 2.3(b)(ii) from unreasonably restricting Ms Wilson's post-employment activity, the appropriate course is to sever the covenant preventing Ms Wilson soliciting business for her benefit.

1. The defendants submitted that the restraint does more than was reasonably necessary in its scope to protect W284's legitimate interest:

1. The restraint intends not only to protect the business of W284, but all entities which form part of the Woodards network, regardless of whether such companies operate in Victoria, interstate or overseas. W284 and other entities in the Woodards network operate under licence arrangements:

(a) "Woodards" ought to be given its defined meaning where it appears in the restraint; and > > (b) There is no contrary intention that reference to "Woodards" in the restraint should be anything other than a reference to "all entities, corporate or otherwise, that are related to or associated with Woodards". To find that reference to "Woodards" in the restraint is actually a reference to "W284" would be re-writing the contract impermissibly. W284 failed to lead any evidence about the number and location of other entities (aside W284) related to or associated with Woodards.

2. Giving "Woodards" its defined meaning in Schedule 3 is consistent with the introductory words to the restraint": "To reasonably protect the goodwill of the Business...". "Business" is defined "incredibly broadly" and "it is apparent that the objective [of the definition] is a broad, catch-all one". The definition "extends well beyond the employment of Ms Wilson in terms of her duties, her functions and the nature of the customers with whom she dealt".

1. The word "dealings" is not defined in Schedule 3, and thus broadly covers direct and indirect dealings. The generality of the word causes difficulty in determining whether Ms Wilson "had dealings with" Clients or Suppliers in the final 12 months of her Employment with W284.
2. W284 did not lead any evidence connecting Ms Wilson to all persons caught by the definition of "Client" and "Supplier". There are an indeterminate number of entities and persons whom Ms Wilson may have had dealings with in the final 12 months of her Employment with W284.
3. The word "business" encompasses any product or service of any Client or Supplier with whom Ms Wilson had dealings during the last 12 months of her employment, even if such product or service was unrelated to her role in leasing and/or management of residential properties at W284.
4. W284 has not justified the reasonableness of including "Suppliers" in the restraint. The restraint would, for example, prevent Ms Wilson from purchasing products and services (unrelated to leasing and/or management of residential properties) from a "Supplier" with whom she "had dealings" in the final 12 months of her Employment with W284. This inclusion is contrary to public policy because it restricts "Suppliers" rights to supply products and services to Ms Wilson in areas outside W284's business operations.

"For Carole Wilson's benefit, or the benefit of a third party in competition with Woodards"

1. The restraint seeks to prevent Ms Wilson from "operating, both for her own benefit and for the benefit of another third party business in competition with [Woodards]".
2. The phrase "for Carole Wilson's benefit" would prevent Ms Wilson from:

(a) having "any dealings" with any Client or Supplier with whom she had dealings during the last 12 months of her Employment, even if the "benefit" Ms Wilson received was not at all competitive to W284's business; and > > (b) providing any product or service to any Client or Supplier with whom she had dealings during the last 12 months of her Employment, even if such product or service was unrelated to her role in leasing and/or management of residential properties at W284.

3. This aspect of the restraint cannot be severed because it is a single restraint, it is not made up of separate servable restraints.
4. The phrase "or the benefit of a third party in competition with Woodards" is also too broad because:

(a) the prohibited contact extends to contact with Clients and Suppliers of any other entity in the Woodards network; and > > (b) in light of the definition of "Business", the prohibition extends to a wide range of activities outside of property management and leasing.

1. The geographic limitations imposed by a restraint is a critical consideration for the courts. A widely drafted clause which does not specify the area to which it applies will operate worldwide.
2. Ms Wilson's position at the time of entering into the employment agreement with W284 was based in Doncaster and the 31 properties the subject of this proceeding were located in and around the City of Manningham. The restraint seeks to prevent Ms Wilson from operating without geographic boundary, necessarily including in areas well beyond W284's business operations and the location where Ms Wilson worked and operated in the course of her employment.
3. For example, if Ms Wilson moved to Darwin, Ms Wilson would be prevented from managing a Darwin property owned by a Woodards' client (it being assumed that Woodards does not operate in Darwin).

1. In my view, the restraint does more than is reasonably necessary to protect W284's landlord customer connections in its scope. In summary:

(a) The broad definitions of "Woodards", "Business, "Client" and "Supplier", extend the prohibited contact to Clients and Suppliers of the entire Woodards network of entities with whom Ms Wilson had dealings in the course of the Employment in the last 12 months. It is not limited to Clients and Suppliers of the W284 property management business or of W284. Properly construed, the term "Woodards" as it appears in the Schedule 3 is a reference to the defined term in clause 1.1 of the Schedule 3 and not to W284. This is consistent with the objective intention of the parties reflected in: > > > (i) the introductory words to the restraint: "To reasonably protect the goodwill of the Business [as defined]..." (introductory words); and > > > > (ii) the contract being a standard form employment agreement, that was drafted to cater for every employee regardless of seniority or role. > > (b) The restraint prohibits contact in relation to activities which have nothing to do with property management or leasing. Properly construed, "the business of that Client or Supplier" is not a reference to prohibited contact in respect of property management related business only as contended for by Mr Korman. Those words of limitation do not appear in the restraint. To read in those words would be to remake the agreement contrary to the objective intention of the parties as referred to above. Mr Korman conceded that if the restraint operated to prohibit Ms Wilson from soliciting any business from Clients and Suppliers of Woodards (as defined), it is "excessive."

"And this is important because if Ms Wilson was restricted only from soliciting property management business, I'll be demonstrating how everything else falls into place and this is a reasonable restraint, but if Ms Wilson is not permitted to solicit from these other entities all sorts of things, it's excessive, for example, sales or whatever or hairdressing, its [excessive]."[35]

(c) The purpose for which contact is prohibited extends beyond a purpose competitive to W284. The restraint prohibits contact "for Carole Wilson's benefit." The words "for Carole Wilson's benefit" ought not be severed.

(d) The restraint has no geographic limitation; it operates at large. It does not limit the prohibition to the area in which Ms Wilson operated or some other reasonable area of operation. Due to the broad definitions referred to above, the limitation on the persons in respect of whom contact is prohibited being those with whom Ms Wilson had dealings during the 12 months prior to termination do not limit its operation such that it does no more than is reasonably necessary to protect W284's customer connections.

1. In my view, where "Woodards" appears in clause 2.3, a reasonable person in the position of the parties would understand it to have the defined meaning.
2. The introductory words evince an intention that the restraint have broad application, beyond the business and activities of W284.
3. "Business" is defined broadly and covers activities beyond Ms Wilson's property management role,[36] including aspects of the real estate industry in which W284 is not involved at all, for example, hotel and retirement property sales. In order to protect "Business" activities in which W284 is not involved, but in which other Woodards entities might be involved, references to "Woodards" in the restraint must be references to the defined term.
4. A reasonable person in the position of the parties would understand that the "commercial purpose or object" of the restraint is to protect not only W284's legitimate interest, but other entities which form part of the Woodards network. The standard form contract was given to many employees in different roles and the restraint of trade provisions were not tailored to meet the specific seniority or wage level of any particular employee.[37]
5. The phrase "unless the contrary intention appears" permits reference to "Woodards" in one clause in Schedule 3 to mean what is defined, and reference to "Woodards" in another clause to mean W284. Defined terms must be read in the context in which they appear in the contract, and any contrary intention:[38]

(a) With respect to the definition of "Employment", it is common sense that "employment of Carole Wilson by Woodards" means employment of Ms Wilson by W284, as Ms Wilson was only to be and only ever was employed by W284. A common-sense overlay is appropriate to understand the meaning of "Woodards" in that context. There is "good reason" to displace the defined meaning and doing so would avoid a "commercial nonsense". > > (b) The same may be said with respect to the execution clause in Schedule 3. The reference to "Woodards" could only be a reference to W284, as it was Ms Wilson's employer. A reasonable person in the position of the parties would consider the words "EXECUTED by the Parties as an Agreement" to be a reference to the definition of the parties to the employment agreement on the first page. To this extent, a contrary intention appears in respect of that particular reference to "Woodards".

6. Were it the objective intention of the parties that every reference to "Woodards" in Schedule 3 be a reference to W284, there would have been no cause for the plaintiff to have defined "Woodards" as "all entities, corporate or otherwise, that are related to or associated with Woodards" for the purpose of Schedule 3, or to have defined "Woodards" at all.
7. This interpretation is consistent with the "broad, catch-all" nature of Schedule 2 and the broad definitions contained therein.

1. In my view, the prohibition on Ms Wilson contacting Clients and Suppliers with whom she had dealings in the course of her Employment in the last 12 months of her employment with W284 does not sufficiently limit the operation of the restraint and save it from invalidity.[39] Whilst it might go some way to narrowing the "universe" from which the group of Clients and Suppliers with whom Ms Wilson had dealings is selected, it does not restrict the type of activity in respect of which contact is prohibited to residential property leasing or management.
2. The words "the business" in context (i.e. the business of that Client or Supplier) ought not be construed as limited to "the business Carole Wilson was involved in"[40] or property management business as contended for by Mr Korman. Such an approach is not supported by principle:

(a) "business" is a word of generality not ambiguity.[41] A restrictive interpretation of general words is not to be adopted simply to save a covenant from invalidity; and > > (b) to construe the words as the plaintiff contends amounts to determining, impermissibly, what degree of restriction would be justified and reading down the unduly wide clause in order to preserve its validity.[42]

3. The presence of the expansive definitions of "Woodards", "Business", "Client" and "Supplier" in Schedule 3, together with the introductory words to the restraint, are inconsistent with a reading of the words "the business" in the restricted way contended for by the plaintiff. Rather, a reasonable person in the position of the parties would understand that the words "the business of that Client or Supplier" ought to be given their full effect. Such an interpretation is necessary to achieve the objective purpose of the broad, catch all restraint encapsulated in the words: "To reasonably protect the goodwill of the Business...". "Business" including "sales, acquisitions, leasing and/or management of residential, commercial, retail, industrial, recreational, hotel, retirement and any other leasehold or real property and/or businesses" of Woodards (as defined) and any other business in which Carole Wilson provides, or provided, services in the course of the Employment. The introductory words and definition of "Business" would have no work to do were it intended to protect the residential property leasing and management aspect of W284's business only.
4. The present circumstances are distinguishable from those in Mills v Dunham in which the English Court of Appeal "read down" the general words of a restraint which placed no limit on the type of business in which soliciting by the former employee was prohibited to "a business similar to that of the plaintiff," saving the clause from invalidity. In that case, the nature of the plaintiff's business of manufacturing antiseptic substances was expressly set out in another clause of the agreement. Chitty J accepted that in context "dealing or transacting business with the old customers means business of the same or a similar kind to that which had been carried on by the plaintiffs."
5. In I.F. Asia Pacific Pty Ltd v Galbally & Ors,[43] Dodd-Streeton J noted that:

"While Mills v Dunham no longer represents an accurate statement of relevant principles, the application of the approach endorsed by Dixon CJ in Butt v Long does not exclude the possibility that in some contexts, general words might properly be held to have a narrower meaning."[44]

1. Her Honour held however that in the absence of a definition of the plaintiff's business, custom or the type of services it provided, the text of the clause displays generality rather than ambiguity. Her Honour was unable to conclude that it could be restricted by the applicable canons of construction to services, custom or business "the same as or similar to" those of the plaintiff.
2. In the present case, the broad definitions together with the introductory words put beyond doubt the objective intention of the parties to protect the goodwill of the Business (defined term) of Woodards (as defined). To incorporate the restriction contended for by the plaintiff would be to remake the restraint rather than to give expression to its real meaning.[45] The need to limit the unduly wide words by introducing words of limitation is apparent from Mr Korman's submission that "the Restraint in fact only proscribes interaction directed towards soliciting of business from Clients and Suppliers with whom Wilson had dealings in the course of her employment-related activities of leasing and managing residential property."[46] The underlined words or other similar words of limitation are absent in the restraint.
3. On that basis alone, the clause exceeds what is reasonably necessary in order to protect W284's legitimate interests in its customer connections and the restraint is unenforceable.

"For Carole Wilson's benefit, or the benefit of a third party in competition with Woodards"

1. In my view, in context, prohibiting contact "for Carole Wilson's benefit" is unreasonably broad. The word "benefit" is not limited in any way. It would prevent Ms Wilson from having prohibited contact with any Client or Supplier with whom she had dealings during the last 12 months of her Employment, even if the "benefit" Ms Wilson received was:

(a) not at all competitive to W284's business; and/or > > (b) unrelated to her role in leasing and/or management of residential properties at W284.

2. That Ms Wilson might engage in roles outside of property management is not some "improbable or extravagant contingency" that W284 could not have intended the restraint to cover in light of the wide scope of Schedule 3, in particular, the broad definitions and introductory words to the restraint. To construe the proscribed solicitation "for Carole Wilson's benefit" to be restricted to solicitation "for Carol Wilson's benefit in any future capacity as a property manager" as contended for by Mr Korman,[47] is again, an invitation to re-write words of generality.
3. The phrase "for Carole Wilson's benefit" is not amenable to severance.[48] To do so would be to engage in "curial disentanglement".[49] As already addressed, the employment agreement including Schedule 3 containing the restraint was a standard form agreement used in respect of all employees no matter what position, role or experience. To refuse severance is consistent with the intention of the parties objectively assessed that the restraint have broad application in respect of the various businesses of the various Woodards entities, as set out above.
4. In my view, the phrase "for the benefit of a third party in competition with Woodards" is also unjustifiably broad in context. In light of the definition of "Woodards", a third party may be in competition with any other entity in the Woodards network in any field of real estate, including sales of retail, industrial, hotel and retirement properties and/or businesses. To restrain Ms Wilson from contact with Clients and Suppliers in competition with entities operating in fields not covered by W284, does more than is reasonably necessary to protect W284's legitimate interest in its customer connections with landlords on its rent roll.

1. W284 conceded that a situation could arise where if Ms Wilson moved to Darwin, and a Client or Supplier of W284 with whom Ms Wilson had dealings in the last 12 months had a residential rental property in Darwin, she would be prevented from managing such property by the restraint even if it was uncompetitive with W284's business. This situation is not an "improbable or extravagant contingency" that the Court should consider was not intended to be covered by the restraint. As Mr Piccolo said, "the Woodards network, its tentacles spread far and wide and we manage property in our core areas, our primary and secondary areas...".[50]
2. W284's submission that should that situation arise, Ms Wilson could seek Woodards' consent, brings into sharper focus the unreasonable breadth of the restraint. There is nothing preventing Woodards from unreasonably withholding consent.

A2. ENFORCEABILITY OF THE RESTAINT - DURATION

"If the answer to issue 1 is "yes", was the enforceable restraint period:

(a) three (3) months from the date the Third Defendant's employment ceased as alleged by the Defendants; or

(b) twelve (12) months from the date the Third Defendant's employment ceased with the Plaintiff as alleged by the Plaintiff."[51]

1. Having determined that the restraint is unenforceable because it does more than is reasonably necessary to protect W284's legitimate interest in its scope, it is unnecessary for me to determine Issue A2. However, had I determined Issue A1 in favour of W284, I would have found that:

(a) the restraint was not limited to 3 months by virtue of the notation as contended for by the defendants; and > > (b) a 12 month restraint was longer than was reasonably necessary to protect the legitimate interests of W284. I would have found that 6 months was enforceable in duration.

1. Mr Korman submitted that, contrary to the defendants' contention that 3 months was the restraint period agreed by the parties, the notation was not a counteroffer accepted by Mr Piccolo upon his signing of the employment agreement and Schedule 3.
2. The meaning of the circle around the words "3 months" is objectively obscure. It is too uncertain to allow any application. Judged objectively, the circle may not have been intended to be a contractual term at all: it might have been the product of aimless doodling or directed study and consideration.
3. If the intention was to exclude one or more periods of time, the objectively appropriate course would have been to strike out the rejected restraint period(s) and/or amend clauses 3.2 and 3.3. The effect of clause 3.2 together with clause 1.6 is that each period in the definition of "Restraint Period" constitutes a separate restraint.
4. Ms Wilson did not alter clause 3.2 of the employment agreement, which provides:

"Each of the restraints in this Schedule are to have effect as a separate, severable and independent restraints, each form the other and as regards each Restraint Period so that the invalidity or unenforceability of any restraint in respect of any Restraint Period does not affect the validity or enforceability of any remaining restraint."

1. The effect of this is that the restraint contained in the words "12 months" at clause 1.6(a) and "6 months" at clause 1.6(b) (which were not altered) have effect as separate, severable and independent restraints.
2. Ms Wilson did not alter clause 3.3 of the employment agreement either, which provides:

"If there is any inconsistency or contradiction between the restraints in this Schedule, the restraint with the longest Restraint Period constitutes the restraint agreed between Woodards and Caroline Wilson to the exclusion of any other restraint."

1. The effect is that the separate, severable and independent restraint contained in the words "12 months" constitutes the restraint agreed between Woodards and Ms Wilson, because it is inconsistent with the restraints contained in clause 1.6(b) ("6 months") and clause 1.6(c) ("3 months").
2. Whatever the impact of the notation might be, those words "3 months" within the circle constitute a restraint that is shorter than and inconsistent with the restraint constituted by the words "12 months". Therefore, by operation of clauses 3.2 and 3.3, that 3 month restraint cannot apply.
3. It was not agreed between W284 and Ms Wilson that the restraint would be 3 months, because Mr Piccolo was not aware of Ms Wilson's notation and did not agree to it. He did not sign next to Ms Wilson's notation. Any "term" constituted by the circle and signature, if there was in fact one, should be severed from the agreement.
4. Even if the notation was a counteroffer, Ms Wilson did not communicate her counteroffer. It follows that the notations cannot constitute a term of the employment agreement or affect its construction. Absent communication of the counteroffer, the employment agreement must take effect according to its terms.
5. If Ms Wilson's counteroffer was communicated, it does not necessarily follow that the original offer was "killed". In this case Woodards' conduct in offering Ms Wilson employment after the counteroffer was made, constituted a representation that the contract remained open for acceptance by Ms Wilson and had not been "killed" by her counteroffer.[52] Ms Wilson accepted Woodards' offer of employment in accordance with the terms of the employment agreement by her subsequent conduct as a Woodard's employee.
6. In any case, Ms Wilson's conduct in making the notation without bringing it to Mr Piccolo's attention was vitiating conduct. She tried to trick Mr Piccolo. She knew that he would likely not see the notation and then she could say "Look, I only have a three-month restraint." This was a representation by silence that she had not changed anything in the agreement. She received the second copy of her employment agreement and would have known Mr Piccolo had not countersigned and had likely not seen the notation.[53] Having represented to Mr Piccolo that she made no changes to the standard terms, Ms Wilson is bound by the standard terms.
7. Alternatively, Ms Wilson is estopped from asserting that she made (or communicated) her counteroffer and is estopped from asserting that she had not accepted the employment agreement in its original form. Alternatively, Mr Piccolo made a unilateral mistake as a consequence of Ms Wilson engaging in "sharp" conduct entitling the plaintiff to rectification in the form of the removal of the notation.[54]

1. The defendants submitted that 3 months was the restraint period agreed under Schedule 3.
2. The circling and initialling by Ms Wilson of the 3 month restraint period is certain and unequivocal. It clearly and objectively identifies the selection of the 3 month restraint period as the only agreeable restraint period, to the exclusion of the other listed restraint periods. There is no other reasonable explanation. There is no uncertainty occasioned by the notation.
3. Neither clause 3.2 nor 3.3 of Schedule 3 required further alteration as the defined term "Restraint Period" had effectively been limited to only be 3 months.
4. Neither clauses 15.6 of the employment agreement nor clause 5.2 of the Schedule 3 permit the severance sought. W284 appears to concede this, given the absence of reliance of those clauses.
5. The evidence established that the parties agreed that the only potentially enforceable restraint period was 3 months. Ms Wilson's notation was effectively a counteroffer of varied terms which was made to W284 for acceptance by it. W284 was free to reject that counteroffer. W284 accepted the varied term when Mr Piccolo signed the employment agreement, including Schedule 3, after Ms Wilson.
6. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd,[55] the High Court held the general rule regarding signed documents is that:

"...where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms, and to affect legal relations, is bound by those terms, and it is immaterial that the person has not read the document."

1. This ratio can be seen as, in substance, an affirmation of the principle in L'Estrange v Graucob[56] that:

"[w]hen a document containing contractual terms is signed, then, in the absence of fraud, or, I will add, misrepresentation, the party signing it is bound, and it is wholly immaterial whether he has read the document or not."

1. If the court finds, however, that there was no acceptance of the counteroffer as contended for by the plaintiff, Schedule 3 forms no part of the employment agreement because there has been no concluded agreement. Clauses 15.6 of the employment agreement and clause 5.2 of Schedule 3 permit severance of the entire restrictive covenants from the employment agreement.
2. The general rule in Toll v Alphapharm is applicable. There was no vitiating element. The evidence cannot establish fraud, duress or misrepresentation. The plaintiff's claim in respect of estoppel is misconceived. Unilateral mistake is not made out as it requires some improper conduct on the part of the unmistaken party whereby that party seeks to prevent the other becoming aware of the mistake. That is not the situation here. The plaintiff did not plead estoppel or an entitlement to rectification.

1. It is well understood that contracts are to be interpreted objectively. In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd,[57] the High Court said:

"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 enquiry 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."

1. With respect to counteroffers, Carter on Contract states:[58]

"Necessity for knowledge of offer. Acceptance cannot occur if the offeree is ignorant of the offer. Consequently, where an offer is made for a reward to be paid in return for the doing of some act (such as, the supplying of information relating to the commission of a crime), the mere fact that a person happens to perform that act while ignorant of the offer will not result in a binding contract. As Isaacs ACJ explained in R v Clarke,[59] unless the person who performed the required act was 'acting on or in pursuance of or in reliance upon or in return for' the consideration contained in the offer, there is no contract..." (emphasis in original)

1. Cheshire and Fifoot Law of Contract states:[60]

"Counter-offer is a final rejection of original offer. To hold that there is an acceptance the offeree must unreservedly assent to the exact terms proposed by the offeror - sometimes referred to as the mirror principle. If, while purporting to accept the offer as a whole, the offeree introduces a new term which the offeror has not had the chance of examining, he or she is in fact merely making a counter-offer. The effect of this is said to destroy the original offer...

The proposition that a rejected offer is killed must depend on the circumstances. For example, if in a subsequent conversation it was obvious that the original offer was still open, then it would be possible to accept it, even though it was originally rejected. Heydon JA has commented:

A rejected offer may remain operative if in the circumstances it should be treated despite its rejection as remaining on foot, available for adoption as the basis of mutual assent manifested by conduct.[61]"

1. In my view, a reasonable person in the position of the parties would have understood the notation to be a counteroffer limiting the restraint period to 3 months. Ms Wilson's signature next to the circle is a clear indication that, of the 3 potential restraint periods, she was prepared to accept 3 months only. The presence of her signature is inconsistent with the circle being the product of aimless doodling.
2. Understood as a selection of the only agreeable restraint period to the exclusion of the other possible restraint periods, the absence of striking out of the remaining periods and amendments to clauses 3.2 and 3.3 is of no consequence.
3. However, for the reasons set out below, I find that Ms Wilson did not communicate the counteroffer. I accept Ms Tormey's evidence that the notation was not raised with her, and Mr Piccolo's evidence that he had no knowledge of the notation.

(a) she does not recall Ms Wilson calling her about her employment agreement prior to attending the Landfield office; > > (b) all of her calls go through reception - the receptionist would send her an email if she did not take a call, she would get back to them as soon as she could and she would always return calls;[62] > > (c) she does not remember receiving any emails from Ms Wilson about her employment agreement prior to attending the Landfield office;[63] > > (d) she attended the Landfield office on 8 May 2017; > > (e) she spoke to at least six employees and "would have met with [Ms Wilson]" on that day;[64] > > (f) she is "absolutely sure" Ms Wilson did not bring any issues relating to her employment at Woodards to her attention[65] and "there was no conversation about the employment agreement at all";[66] > > (g) Ms Wilson did not circle and sign the "3 months" in front of her;[67] > > (h) Ms Wilson did not hand an executed employment agreement to her on that day;[68] > > (i) the standard procedure for executing employment agreements is that Woodards gives two unsigned employment agreements to the employee, the employee signs both copies and returns them to Ms Tormey, Ms Tormey gives them to Mr Piccolo to sign, then one copy goes in the employee's personal Woodards file and the other is returned to the employee.[69]

(a) she tried to contact Ms Tormey but "she's a very busy lady";[70] > > (b) she did not send back copies of her employment agreement to Ms Tormey before 8 May 2017;[71] > > (c) when Ms Tormey attended the Landfield office on 8 May 2017, she had two copies of her employment agreement in an envelope in her bottom drawer;[72] > > (d) she had marked up one copy by circling three points she wanted to discuss with Ms Tormey,[73] specifically: > > > (i) whether she was being "demoted"[74] as her title in the employment agreement was "Property Manager" rather than "Senior Property Manger";[75] > > > > (ii) whether she "could be shipped off because somebody was sick in another office" due to the "clause in relation to being moved to another office"; and > > > > (iii) the restraint clause, because she "wanted three months as the others were unreasonable";[76] > > (e) Ms Tormey walked into the office - it was her first visit;[77] > > (f) she had to go outside the office briefly;[78] > > (g) she returned to sit at her desk and Ms Tormey came up to the left-hand side of her desk;[79] > > (h) she pulled out the envelope and pulled out the two contracts;[80] > > (i) she opened the marked up copy and went through the three points with Ms Tormey - "this was important to me, this was about my life and I wanted to make sure I covered every point";[81] > > (j) with respect to her title, Ms Tormey said "it was just a simple typo and it would be fixed";[82] > > (k) with respect to the "relocation clause", Ms Tormey said: > > > (i) "there was no chance of being moved around for the purpose of... stepping in to help people";[83] > > > > (ii) she "wouldn't get called for a day here or a day there";[84] > > > > (iii) "sometimes there is relocations but... [she] would be consulted";[85] > > (l) with respect to the restraint: > > > (i) she said she felt the 6 and 12 month restraints were "unreasonable" and Ms Tormey said "something about the six months [being] the only legally enforceable" restraint;[86] > > > > (ii) she said "well, I'm only prepared to sign three months", circled the 3 months and signed the back page of the clean copy, put it in the envelope and gave the envelope to Ms Tormey;[87] > > (m) she put the marked-up copy back in her drawer and when the Landfield office was being cleaned out in December 2017, she emptied her desk and put the marked up copy in the recycling bin.[88]

3. The plaintiff submitted that Ms Wilson's evidence about the events of 8 May 2017 ought to be rejected because, amongst other things, it is implausible to suggest that:

(a) Ms Tormey approved a change to the standard terms of Ms Wilson's employment agreement, or approved Ms Wilson's notation, without authority to do so; > > (b) Ms Tormey knew of Ms Wilson's notation but failed to bring it to Mr Piccolo's attention; > > (c) Ms Wilson "rejected as unreasonable a three-month restraint period" even though she had longstanding relationships over many years with the Woodards landlords, yet accepted a 6 month restraint if she remained at Jellis Craig for 36 months or more;[89] > > (d) Ms Wilson provided Ms Tormey only one signed copy of her employment agreement, and Ms Tormey provided Mr Piccolo only one signed copy, yet both failed to notice and/or do anything about Ms Wilson's failure to provide two signed copies despite that being their usual practice; > > (e) Ms Wilson did not receive a signed copy of the employment agreement and did not ask for it at any stage despite her concerns as to Mr Piccolo's litigious approach;[90] and > > (f) Ms Wilson was unaware that Mr Piccolo had not signed her notation.

4. The defendants submitted that Ms Wilson's evidence ought to be preferred because:

(a) Ms Wilson was very clear about the steps she took in relation to the employment agreement including giving it to Ms Tormey, raising the issues with Ms Tormey and then giving Ms Tormey one copy; > > (b) Ms Tormey was clear in stating that she could not recall meeting with Ms Wilson; ‑ > > (c) Ms Tormey was also clear in stating that she could not recall whether standard procedure was followed - she could not definitely say whether Ms Wilson returned two executed employment agreements in this case; > > (d) Ms Tormey's evidence was self-serving - despite not being able to recall whether she met with Ms Wilson, she positively stated that Ms Wilson did not raise the three issues with her that day; > > (e) on 9 May 2017, Ms Tormey sent an email to Ms Wilson stating: "Nice to finally meet you yesterday". This is consistent with a meeting occurring on 8 May 2017 that Ms Wilson recounts which Ms Tormey cannot recall; > > (f) on 4 February 2019, Ms Wilson wrote to W284's lawyers stating:

"Can you please forward me a copy of my amended Employment Contract that I signed. I did not receive a signed returned copy from Woodards."

This is consistent with Ms Wilson's account of only having returned one copy of the employment agreement to Ms Tormey, which contained the notation;

(g) when W284's lawyers wrote to Ms Wilson asserting that she had breached the restraint, they did not challenge Ms Wilson's notation.

1. I reject Ms Wilson's account. In my view, had the conversation occurred as described by Ms Wilson, one would have expected Ms Wilson to have:

(a) amended the employment agreement to reflect the outcome of the three points she said she discussed given her evidence of their importance to her. Had Ms Tormey said labelling Ms Wilson as a Property Manager rather than a Senior Property Manager was a "typo", and "... it's no problem, just change it...",[91] Ms Wilson would likely have added the word "Senior" to her title. A typo would have taken a matter of seconds to correct. Similarly, Ms Wilson did not amend the work location clause to make it clear that she did not agree to be "shipped off" to other Woodards offices; > > (b) followed up with Ms Tormey to confirm that Mr Piccolo had agreed to the three points. On Ms Wilson's version of the events, the copy of the contract she handed to Ms Tormey contained only the notation and no reference to the other two matters of importance to her; and > > (c) ensured she received a signed amended copy of her employment agreement reflecting the three matters that were of "importance to me, this was about my life and I wanted to make sure I covered every point." However: > > > (i) despite having thrown her own copy of the employment agreement containing her record of the three points she said she discussed with Ms Tormey in the recycling bin, she took no steps to obtain a signed copy for her records;[92] > > > > (ii) when Ms Wilson's mind was focussed on the issue of the 12 month restraint in W284's employment contracts in June 2018, she did not request a copy of her own employment contract. On 7 June 2018, Ms Wilson emailed Ms Tormey regarding Ms Chong's[93] departure with a draft email to be sent to landlords in which she wrote:

"...all Real Estate firms in this case Woodards have employees sign contracts when they start, Woodards has an air tight contract that prevents property managers engaging with Landlords for twelve months..."[94]

(iii) Ms Wilson gave evidence that she wrote that email because she knew that "Wendy did not alter her [employment contract]".[95] Ms Wilson said she knew Ms Chong was under a 12 month restraint "because we spoke about it".[96] Knowing she had amended her own employment agreement to limit the restraint to 3 months (on Ms Wilson's account), one would have expected her to have ensured the amendment to the restraint she considered she had made had been accepted and that she had a copy of her contract signed by Mr Piccolo;

(iv) Having received the letter from W284 dated 17 January 2019 threatening legal action "... should we become aware of any breaches of the terms of your Employment Agreement"[97], Ms Wilson did not request a copy of her employment agreement to check whether Mr Piccolo had countersigned the notation. It was not until after W284's lawyers wrote to Ms Keleher on 1 February 2019 that Ms Wilson requested a copy of her "amended Employment Contract that I signed" on 4 February 2019.[98]

1. Had the notation been raised with Ms Tormey, I consider it likely that Ms Tormey would have raised it with Mr Piccolo and it would have been the subject of discussion with Ms Wilson. Although Ms Tormey could not specifically recall seeing or meeting with Ms Wilson on 8 May 2017, she agreed she would have met with Ms Wilson.[99] Had the meeting occurred as described by Ms Wilson, Ms Tormey would likely have remembered it, being something out of the ordinary. I accept Ms Tormey's evidence that she would not have unilaterally approved a change to the restraint. This is consistent with the employment agreement being a standard form agreement (other than Schedule 1 which she filled out based on information given to her) and Ms Tormey's position.
2. I find that Ms Wilson's failure to raise the notation with Ms Tormey was with a view to avoiding Mr Piccolo's rejection of her position. Ms Wilson was aware of the significance of both parties signing a change to a written contract. She agreed that when "signing up" vendors and purchasers to a sales contract, she takes care to ensure that every change is signed by both parties to ensure every change was agreed to by the parties.[100]
3. Ms Wilson's failure to raise the notation with Ms Tormey for Mr Piccolo's attention is consistent with her evidence that she felt she was being bought and sold:

"... I did not approach Woodards, Woodards were unknown to me. If I had only lasted three weeks, five weeks, seven weeks, there was no way I was prepared to sign a 12 month restraint, a six month restraint, that was unfair and totally unreasonable..."[101]

1. Although Ms Wilson denied that that she held a view that Mr Piccolo would not agree to a 3 month restraint period,[102] in light of:

(a) Ms Wilson's knowledge and experience regarding countersigning of sales contracts; > > (b) her awareness that "... the employer would have had to agree to [a change to an employment contract];[103] and > > (c) the significance of the issue of the restraint period to her,

it is inconceivable that she would have made the notation, signed it and then done nothing to ensure Mr Piccolo was aware of it and had accepted it by counter signing the change,[104] unless she had not wanted to draw his attention to it.

1. As such, I find that the counteroffer was uncommunicated.
2. I am also satisfied that Ms Wilson likely knew that Mr Piccolo was unaware of the notation. It is more likely than not that Ms Wilson received a returned copy of her employment agreement signed by Mr Piccolo, but without Mr Piccolo's counter-signature of the notation, and was therefore aware that Mr Piccolo was likely unaware of the notation[105]:

(a) Although Ms Tormey could not say with certainty that she gave two versions of Ms Wilson's contract to Mr Piccolo to sign,[106] in the context of her usual practice of producing two copies of an employment agreement on hundreds of occasions, having the employee sign both, then Mr Piccolo sign both, it is likely that Ms Tormey would remember if only one contract was produced by Ms Wilson for Mr Piccolo's signature. Her evidence that "I think if she had only provided me back one copy, I would have asked her where the other one was" rings true.[107] Her acceptance of the proposition that she could not recall whether in fact she did that (that is, collect two signed copies from Ms Wilson) is to her credit. It was a forthright answer. > > (b) Mr Piccolo gave evidence he had signed thousands of contracts and he could not recall a single case where one contract was given to him and not two.[108] > > (c) That Ms Wilson likely had a copy of her employment agreement is supported by her evidence that she told Simone Bermingham, Head of Jellis Craig's Property Management Department (Ms Bermingham),[109] and Mr Keleher, that she was subject to a 3 month restraint.[110] I consider it likely that at the time she spoke to Ms Bermingham, she had a copy of her employment agreement with Mr Piccolo's signature at the end of the contract, albeit without his countersignature of the notation and was content not to raise the absence of the countersignature. Had Ms Wilson not had a copy, one would have expected her to tell Ms Bermingham and Mr Keleher that whilst she made the notation, she was not sure whether it had been accepted by Mr Piccolo as she had never received a signed copy of her employment agreement. > > (d) Further, Ms Wilson gave evidence that at the time she gave notice to Mr Piccolo, she understood her notice period was 2 weeks (having worked for Woodards for 18 months). Notice periods are contained in Item 10 of Schedule 1 to the employment agreement. The notice period varies depending on length of service. In my view, it is more likely than not she had reference to her employment agreement at that time to know how long her notice period was. Ms Wilson's speculation as to who she may have spoken to obtain that information was unconvincing.[111] Had she spoken to Cathy about her notice period as she said she may have and had never received a signed copy of her employment agreement, one would have expected her to have asked for it. Ms Wilson could not explain why she had not asked for it. > > (e) In my view, Ms Wilson's explanation that she retained her marked up copy of the employment agreement but put it in the recycling bin when cleaning up the office in December, lacked credibility. It is unlikely that Ms Wilson would have thrown out her only copy of her agreement which, on her account, contained the only record of all three issues that were important to her and that she had raised with Ms Tormey.

3. In my view, the carve out to the general rule in Toll v Alphapharm that a person who signs a document which is known by the person to contain contractual terms and to affect legal relations is bound by those terms and it is immaterial that the person has not read the document, is engaged in the circumstances of this case. The general rule is subject to there being no suggestion of a vitiating element, and no claim for equitable or statutory relief.[112] Significant to the decision in Toll v Alphapharm was that Finemores "did not set out to conceal from him the terms and conditions on the document...".[113] Although Mr Piccolo accepted that there was nothing preventing him from reviewing and considering the document in its entirety[114] in the circumstances, I consider Ms Wilson's conduct was deliberately surreptitious, constituting a vitiating element.
4. By her conduct in making the notation on the standard form contract but saying nothing about it, Ms Wilson would have led a reasonable person in the position of Mr Piccolo to believe the standard form contract had been signed unaltered. In my view, in the circumstances of this case, there was a reasonable expectation that Ms Wilson would have brought the notation to Mr Piccolo's attention.
5. Had the issue needed determination, I would have found that Ms Wilson's conduct was "sharp practice". Mr Piccolo operated under a unilateral mistake entitling the plaintiff to relief by way of rectification.[115]

1. W284 pleaded and submitted that a 12 month restraint was reasonable and enforceable. W284 did not plead, nor did it contend, that should the court find the 12 month restraint to be unenforceable, a 6 month restraint was enforceable in the alternative.[116]
2. Mr Korman contended the 12 month restraint did no more than was necessary to protect the plaintiff's legitimate interest because Ms Wilson had very close relationships with the landlords on W284's rent roll:

(a) 19 landlords owned the 31 properties that transferred from W284 to Jellis Craig during the 12 month period after Ms Wilson's employment terminated (transferring landlords); > > (b) Ms Wilson signed up most of the transferring landlords to rental management agreements at Landfield;[117] > > (c) the longest of Ms Wilson's relationships with transferring landlords dated back 14 years to the commencement of her role as a property manager at Landfield;[118] > > (d) many other transferring landlords had worked with Ms Wilson for over 10 years;[119] and > > (e) the average duration of Wilson's relationship with each transferring landlord was 7.8 years.[120]

3. It would take at least 12 months for a reasonably competent replacement employee to show their effectiveness and establish a rapport with the landlords, sufficiently strong to replace the bonds that Ms Wilson had carefully and skilfully crafted over a 14-year period, because:

(a) there were only two Property Managers at any given time in W284's Property Management Department: > > > (i) Ms Wilson, the Senior Property Manager who oversaw the department; and > > > > (ii) a Junior Property Manager who reported to Ms Wilson; > > (b) Ms Wilson was expected to be on top of what was happening with all landlords, not just those she managed directly; > > (c) even if properties were directly managed by the Junior Property Manager, Ms Wilson was ultimately responsible for them; > > (d) there was only infrequent contact with some of the landlords;[121] > > (e) according to Ms Mojaled, Ms Wilson was a "pretty effective and efficient property manager";[122] > > (f) Ms Wilson gave evidence that she established personal relationships with landlords by "getting in their head, to give them the service that they want",[123] "you need to get into the owner's head";[124] and > > (g) by her own admission, Ms Wilson was "very well liked".[125]

4. The authorities establish that the test for a reasonable duration is the length of time it will take for the connection between the ex-employee and the customers to die away, or the time it will take for a replacement to be hired and to have a reasonable opportunity to demonstrate his or her effectiveness to the customers.[126] The retention period that was negotiated by a vendor and purchaser has no relevance to the test that the Court must apply. In agreeing to a 3 month retention period, Landfield and W284 struck a bargain which reflected their commercial considerations.
5. One consideration was the expectation that Landfield's existing employees would remain as transferring employees, so that there was no reason why landlords would seek to take their business elsewhere. To the public at large, all that would be occurring was a "rebrand".[127] Mr Van Gulick, whom Mr Piccolo knew and trusted, undertook to Mr Piccolo that all the employees would be staying on.[128] The transfer from Landfield to W284 was seamless and did not affect Ms Wilson's ongoing client relationships.
6. Ms Wilson was a "Senior" Property Manager at W284, ultimately responsible for all properties on W284's rent roll. In any event, there is no issue with imposing a restraint on a low-earning employee. Ms Wilson "could do whatever she wanted just for 12 months", she just needed "not to approach the Woodards' [W284's] clients and that's not a very big ask".[129]
7. Whilst Ms Wilson's salary may not have changed between Landfield and W284, the employment agreement embodied an exchange of consideration: Ms Wilson received employment and the agreed remuneration as consideration for the personal service she was bound to provide to W284 and her acceptance of the restraint.

1. The defendants submitted that the evidence does not permit the Court to hold, and W284 has failed to and cannot establish, that the 12 month restraint was reasonable in its duration. The maximum enforceable period is 3 months.
2. At the time Ms Wilson's employment was transferred from Landfield to W284, the landlords were not bound by contract to retain W284 to manage their properties for more than 3 months.
3. It can clearly be inferred from the rent roll sale contract between Landfield and W284 that W284 believed 3 months was an adequate and appropriate amount of time for it to establish rapport with landlords, even if Ms Wilson was not continuing on as their Property Manager. The evidence of W284's expert witness, Mr Brindley, supports the defendants' case:

(a) when a rent roll is sold, it is impossible to gauge exactly how many landlords will transition from the vendor agency to the purchaser agency; > > (b) landlords will be contacted to be notified of the change and given the opportunity to review the new property manager;[130] > > (c) for this reason, rent roll sale contracts usually include a buffer period from the end of settlement, called the retention period:[131] > > > (i) the retention period allows the purchaser agency the time needed to establish relationships with landlords and displace any former influence or hold the vendor agency had over the landlord; > > > > (ii) the retention period is the period of time the parties agree is appropriate for relationships to be fostered between the properties the subject of the rent roll and their landlords and the purchaser; > > > > (iii) 3 months is a common retention period;[132] and > > > > (iv) the retention period in the rent roll sale contract between Landfield and W284 was 3 months; > > (d) alongside the retention period, there is money or some kind of financial security retained in the interests of the purchaser agency to protect it against loss of landlord in the retention period, called the retention sum: > > > (i) the retention sum is usually about 10% of the quantum of the rent roll;[133] > > > > (ii) the retention sum in the rent roll sale contract between Landfield and W284 was 15% of the purchase price; and > > (e) after the retention period has passed and any adjustment to final payment are made, the purchaser agency of the rent roll assumes the risk of landlords departing.

4. At the time the rent roll sale contract between Landfield and W284 was agreed, including the retention period of 3 months, there was no guarantee that the employees who had been servicing the rent roll at Landfield would agree to employment with W284. Ms Wilson had not orally agreed to employment with W284 or entered into the employment agreement. As an employment relationship is a personal relationship between the employer and the employee, under general contract law principles, Ms Wilson's employment with Landfield could not unilaterally be "transferred" to W284. Therefore, there was no guarantee that Ms Wilson would continue to service the rent roll for the 3 month retention period or at all.
5. Ms Wilson's evidence, which is not contradicted, is that there were about 280 properties on the rent roll at Landfield when it was acquired by W284. Noting that the retention sum represented 15% of the purchase price, it is instructive that the properties the subject of this proceeding represent only about 11% (i.e. less than 15%) of the number of properties on the rent roll.
6. When considering the duration of the restraint, the Court should also consider Ms Wilson's position. Ms Wilson's position as a Property Manager at W284 was of relatively low level in a seniority and remunerative sense. Ms Wilson was not paid any consideration for a 12 month restraint period. Her salary did not increase when her employment was transferred from Landfield to W284, and she was not subject to any restraint period when employed by Landfield.

1. In Wallis Nominees (Computing) Pty Ltd v Pickett, the Victorian Court of Appeal set out the principles for determining whether a restraint did more than was reasonably necessary to protect a legitimate interest in its duration:[134]

"The principles as to how to determine a reasonable duration for a restraint clause are uncontroversial and not in dispute. The matter is not one that is capable of being settled by direct evidence.[135] An opinion 'can only be formed on a broad and common sense view' after informing oneself fully of 'the facts and circumstances relating to the employer's business, the nature of the employer's interest to be protected, and the likely effect on this of solicitation'.[136]

The relevant question, as noted by the trial judge, is:

what is a reasonable time during which the employer is entitled to protection against solicitation of clients with whom the employee had contact and influence during employment and who were not bound to the employer by contract or by stability of association?[137]

The question has also been reformulated as the length of time it would have taken a reasonably competent replacement employee to show their effectiveness and establish a rapport with the client, displacing the former employee's influence with the client[138] or as how long the employee's hold over the client is expected to last before weakening.[139]"

1. In Hanna v OAMPS Insurance Brokers Ltd (OAMPS),[140] the New South Wales Court of Appeal considered that there is no legally required test in assessing the reasonableness of the duration of the restraint period.

"... The use of one test or another depends on the facts and the evaluation of the approach that is reasonable. The judge is required to evaluate the evidence about connections and adopt an approach to assessing what is required to protect reasonably the connection of the former employer."

1. Had the restraint not been unenforceable by reason of its scope, I would have found that 12 months was unenforceable in duration. I would not have found that 3 months was the maximum enforceable period as contended for by the defendants. In my view, in the circumstances of this case, 6 months would have been enforceable in duration.
2. The plaintiff has not established that 12 months does no more than is reasonably necessary to protect W284's legitimate interest in its landlord customer connections. I am not satisfied that it was no longer than necessary for a new property manager to demonstrate his or her effectiveness or for the connection between Ms Wilson and the landlords to die away.

(a) Whilst the evidence disclosed that Ms Wilson developed close relationships with some of the landlords, it does not, however, support the plaintiff's contention that Ms Wilson was "the face" of the property management portfolio purchased by W284 from Landfield.[141] There were about 280 properties on the rent roll at Landfield when it was acquired by W284. Ms Wilson was one of two property managers in respect of the portfolio purchased by W284, having direct responsibility for about 50% of the portfolio, with a supervisory role over the other 50%: > > > (i) Ms Wilson gave evidence that:

"You talked earlier about a ratio of sort of responsibility within the portfolio of 50 per cent being with the other property manager and 50 per cent with you?---Correct, yes.

Was that maintained throughout your employment, that same sort of ratio, with the Doncaster portfolio?---Yes, yes."[142]

"Wendy Chong kept responsibility for the properties she had previously managed at Landfield when they came across to the plaintiff, didn't she?---Under the oversight of Carole Wilson."[143]

(b) In respect of some properties, Ms Wilson had one or two interactions with a landlord per year. She made it her practice to give a "good news call" every 6 months or so.[144] Otherwise, rental statements went out automated with her name on them.[145] In relation to her contact with landlords, Ms Wilson said:

"... Some owners are needy and some owners you don't have to talk to at all. So a lot of owners you don't have to talk to for a long time. But when you talk to them you give them time. So say, I haven't spoke to somebody for eight or 10 months, I would give them that time when I'm speaking to them. So you have a catch up call as well. So you're not talking to them all the time, you couldn't possibly do that. So it can be - as I said, it can be a long time before you speak to somebody. But moreover you're speaking to them when there is maintenance at the properties. So depending if they've got good quality properties, it is not very often."[146]

(c) Having regard to the nature of her role, I am not satisfied that it would take 12 months for a reasonably competent replacement employee to show their effectiveness and establish a rapport with the client, displacing Ms Wilson's influence with the client:

(i) In response to Mr Korman's question in cross-examination, "what is it that you have done to earn that respect or affection from your clients?", Ms Wilson said:

"I return calls, I'm friendly to people. I listen, and I think that's the key with property management, you need to listen. And everything's not regiment, it is just not the same. You need to get into the owner's head, once you get into the owner's head and know how they think you know how to - do you know what I mean? You know how they are so that you can give them the service that they want."[147]

(ii) In my view, 12 months is longer than is necessary for a replacement employee to make a "good news" call, return the calls of the landlords of properties managed by Ms Wilson, be friendly to the landlords and to listen to be able to "get into their heads" to give them the service that they want.

(d) These circumstances are distinguishable from those in Birdanco in which the departing employee, Mr Money, was employed by an accounting firm as a trainee accountant and later in a para-professional book-keeping role. Robson AJA referred to a passage in the Honourable Justice Heydon's text "The Restraint of Trade Doctrine", in which his Honour cited a Canadian judge who said:

"The chartered accountant is also an expert and consultant in regard to income taxation and has come to occupy, vis-a-vis his client, a relation almost as confidential as that of a solicitor. Therefore, the personal element is a very important actor in this profession; the client having bared, if not his soul [sic], at least his records, to an accountant, has established a confidential relationship which he will not lightly change, because, for one thing, a change involves making the same sort of revelations to another person new and strange to him."[148]

(e) Robson AJA considered that "... the services provided must go further than ad hoc or isolated services, and must involve the employee providing those services on a continuing or recurring basis such as to create with the client an element of professional goodwill. "[149] In that case, given the services provided by Mr Money, he "... would have a degree of knowledge of the client's affairs that would avoid the client having to explain and disclose if it retained somebody unaware of its circumstances."[150]

(f) On the evidence of the services provided by Ms Wilson, it could not be said that the returning of calls, organising of maintenance, paying of bills etc at times on an ad hoc basis, gave her such a knowledge of the landlord's affairs that they would avoid having to "bare their soul" to a replacement property manager. In my view, it would not take 12 months for a reasonably competent replacement employee to show their effectiveness and establish a rapport.

1. Mr Korman pointed to the fact that 19 landlords did transfer to Jellis Craig in support of the reasonableness of a 12 month restraint. The fact that 19 landlords and 31 properties did transfer to Jellis Craig does not, in my view, support the proposition that a 12 month restraint was reasonably necessary to protect W284's legitimate interest in its landlord customer connections. As Mr Galbraith submitted, "[i]t neglects the other 250 properties that didn't move."[151]
2. Mr Korman relied on the transfer of a number of properties "after a few months before Woodards had a chance to replace that incredibly strong bond that Ms Wilson had with them"[152] as supportive of the view that there ought to have been a bigger window of opportunity afforded of at least a year. In my view, the evidence supports an inference that at least some landlords left because:[153]

(a) they were unhappy Mr Piccolo told them Ms Wilson was on long service leave when she had resigned: > > > (i) Before Ms Wilson finished at W284 on 5 October 2018, Mr Piccolo sent an email to the landlords:[154]

(ii) Ms Wilson prepared the first draft. Mr Piccolo amended it including by adding the final paragraph. At that time, Ms Wilson had resigned effective 5 October 2018.[155] Although Mr Piccolo maintained that "there was no specific statement that was made that she was definitely returning or not retuning",[156] the clear impression created was that Ms Wilson would be returning. Mr Piccolo finally accepted that "... it may have been a better draft, to be more precise".[157]

(iii) Mr Korman put to Ms Wilson:

"You were in general, happy for the lands lords to be told you were on long service leave because they would then continue ringing you on your private mobile, correct?---I was not happy with that email.

You were happy for the lands lords to believe you were on long service leave?---No."[158]

(iv) In my view, it is not to the point that Ms Wilson prepared the first draft after meeting with Mr Piccolo, replied to a landlord in a text message in October that she was on long service leave consistent with Mr Piccolo's email, or that Mr Piccolo understood that Ms Wilson may be considered for a different role at a later time. The email was sent under Mr Piccolo's email signature as CEO of Woodards, telling his clients that Ms Wilson was going on long service leave when she was not, rather she had resigned.

(v) George Coletti informed Mr Piccolo by email on 13 March 2019 that:

"5. As I was expecting Carole Wilson to resume management of my properties on her return, I was extremely surprised to see an advert in the Manningham Leader in January welcoming Carole Wilson to Jellis Craig. I was extremely annoyed that Woodards had not had the decency or courtesy to advise their clients that Carole would not be returning to manage their properties. I immediately rang Carole to discuss changing the management of my properties to Jellis Craig."[159]

(vi) On 6 February 2019, Ms Lagos emailed Mr Piccolo informing him she wanted to transfer management of her two rental properties to Jellis Craig, Doncaster. She wrote "I saw the Jellis Craig advertisement in the local paper and feel that I was somewhat deceived by your communications below."[160] The communication was the email from Mr Piccolo.

(b) some were unhappy with the level of service then provided by Ms Wilson's replacement.[161]

1. Even if the restraint were not unenforceable in scope, it is still nevertheless broad. There is no geographic limitation, and it prohibits both "approaching" and "accepting an approach" from Clients and Suppliers in circumstances where the landlords were free to move at any time. Further, Ms Wilson's position as a Property Manager at W284 was of a relatively low level in a remunerative sense.[162] Her salary did not increase when she accepted employment with W284 from Landfield, where she was not subject to any restraint period. The relationship between quantum of the benefit received by the covenantor and the duration of the restraint was addressed in Amoco Australia Pty Ltd v Rocco Bros. Motor Engineering Co Pty Ltd,[163] in which the court observed:

"But, although it was held from early times that the court would not inquire into the adequacy of the consideration for a restraint, nevertheless, I am of opinion that the quantum of the benefit which the covenantor receives may be taken into account in determining whether the restraint does or does not go beyond adequate protection for the interests of the covenantee. For example, if a large sum is advanced a longer period of restraint may be held to be required to give adequate protection to the covenantee than that which would be appropriate in the case of a small advance."

1. Having regard to all the facts and circumstances relating to W284's business and W284's interest in protecting the landlord customer connections, in my view 12 months is a longer period than is reasonably necessary to protect W284 against solicitation of landlords whom Ms Wilson had contact and influence during her employment.
2. Mr Galbraith relied on the 3 month retention period in the sale between Landfield and Woodards to support his contention that 3 months is the maximum enforceable period. In my view, the correct approach to determining the duration of a restraint that does no more than is reasonably necessary to protect the legitimate interest of the employer is as set out above. On the above analysis, I would not have found 3 months to be the maximum enforceable period.

A3. ALLEGED BREACH OF THE RESTAINT BY MS WILSON

"If there was an enforceable restraint of trade for a period of three (3) or twelve (12) months, did the Third Defendant breach any such enforceable restraint of trade as alleged?"

1. The plaintiff submitted that Ms Wilson breached the 12 month restraint by accepting approaches from landlords on W284's rent roll during that period.
2. Ms Wilson admitted that she accepted approaches from all 19 landlords, in respect of the management of all 31 properties, during the 12 month period after her employment with W284 terminated:

"I can tell you that... each one had a different story as far as the conversation I had with had owner, but each and every owner contacted me. Each and every one. I then asked them for the information, it was then transferred and I did exactly the same thing with this, I prepared the authority, set it out - there you go."[164]

"... would you agree that in relation to all of the 31 landlords, that you accepted an approach from them?---Yes, I accepted an approach from them.

And you facilitated, you did all that was necessary in order for them to shift over from Woodards to Jellis Craig?---Yes, sir.

And I understand your evidence is that you did that outside the restraint period?---Yes, sir.

And your understanding was that you were prohibited from doing that within the restraint period?---Correct, sir."[165]

1. It must therefore follow that Ms Wilson breached the restraint with respect to all the landlords and properties the subject of this proceeding.
2. W284 accepted that if the maximum duration of the restraint was three months, Ms Wilson did not breach it.

1. Mr Galbraith's submission that Ms Wilson did not breach the restraint was focused on the assumption of a 3 month enforceable restraint. Mr Galbraith submitted:

"The landlords approached Ms Wilson after the 3 months restraint. There's no suggestion of a breach in that, and approaches were accepted after that."[166]

1. Although not expressly conceded, Mr Galbraith did not press that had there been an enforceable 12 month restraint, it would not have been breached.[167]

"I think this is agreed between the parties, if there's no restraint, obviously there's no breach but if it's three months there's no breach on the evidence either."[168]

1. Given my findings above, this issue does not need to be determined.
2. Had I determined that a 12 month restraint was enforceable as contended for by W284 above, I would have found that Ms Wilson breached the restraint with respect to the transferring landlords listed in W284's 'Table of Properties', except for Bruce James.[169] Ms Wilson admitted that she accepted approaches from all 19 landlords, in respect of the management of all 31 properties, between 3 and 12 months after her employment with W284 terminated on 5 October 2018.[170]

ISSUE B - ALLEGED BREACH OF THE ESTATE AGENTS (PROFESSIONAL CONDUCT) REGULATIONS BY MS WILSON[171]

"If the answer to issue 3 is "yes", did the Third Defendant breach:

(a) Regulation 10(1) of the Estate Agents (Professional Conduct) Regulations 2018 (Regulations); and/or

(b) Regulation 13(2) of the Regulations."

B1. REGULATION 10(1)

1. W284 alleges that Ms Wilson breached regulation 10(1) of the Estate Agents Regulations, which provides:

"An estate agent or an agent's representative must at all times act fairly, honestly, in good faith and to the best of the estate agent's or agent's representative's knowledge and ability in performing the functions of an estate agent or agent's representative."

1. The parties agreed that if the plaintiff's restraint claim failed, its claim in respect of regulation 10(1) would fail.[172]

1. The plaintiff submitted that Ms Wilson did not "act fairly, honestly, [and] in good faith... in performing the functions of an... agent's representative" on behalf of W284
2. Mr Korman contended that Ms Wilson deceived W284 by surreptitiously modifying the terms of her employment agreement, with the intention that she would be employed by W284 on the basis of a 3 month restraint, in circumstances where W284 believed the standard employment agreement terms applied.
3. In his reply submissions, Mr Korman submitted the breach was that she poached the clients. Surreptitiously circling the contract was one part of it. The conduct relevant to the Estate Agents Regulations was signing up the clients.[173]

1. The defendants submitted that there is no evidence that Ms Wilson did not act fairly, honestly, or in good faith in carrying out her functions as an agent's representative on behalf of W284.
2. Ms Wilson's functions as an agent's representative related to property management. Ms Wilson was not performing the functions of an agent's representative when she made the notation in her employment agreement. W284's assertions with respect to Ms Wilson surreptitiously modifying the terms of her employment agreement are not made out on the evidence.

1. In light of my finding that the restraint is unenforceable, the claim for breach of regulation 10(1) also fails. Had I found the restraint was enforceable, I would not have been satisfied that Ms Wilson breached regulation 10(1). When she made the notation on her employment agreement, she was not "performing the functions of an... agent's representative".[174]
2. The Estate Agents Regulations were made under section 99 of the Estate Agents Act. Section 4 of the Estate Agents Act provides definitions of "agent's representative" and "estate agent":

(i) is employed by, or who acts for or by arrangement with, a licensed estate agent; or

(ii) is a director, member or officer of a corporation that is a licensed estate agent; and

(b) who performs for that estate agent any of the functions of an estate agent (other than work ordinarily performed by clerks, cashiers or accountants) -

regardless of whether his or her remuneration is by way of salary, wages, commission or otherwise;

estate agent or agent means any person (whether or not he carries on any other business) who exercises or carries on or advertises or notifies or states that he exercises or carries on or that he is willing to exercise or carry on or in any way holds himself out to the public as ready to undertake the business of -

(a) selling buying exchanging letting or taking on lease of or otherwise dealing with or disposing of;

(b) negotiating for the sale purchase exchange letting or taking on lease of or any other dealing with or disposition of;

(c) collecting rents for -

any real estate or business on behalf of any other person;" (emphasis added)

1. It is clear from these definitions that the "functions" an agent's representative:

(a) are performed for the estate agent who employs the agent's representative; and > > (b) relate to the selling, leasing and otherwise dealing with real estate or business on behalf of any other person (i.e. a client).

2. When Ms Wilson made the notation on her employment agreement:

(a) she was not employed by W284, and therefore could not have been performing a function for W284 as an agents representative; > > (b) she was not performing a function related to selling, leasing and otherwise dealing with real estate or business; and > > (c) she was not acting on behalf of any other person.

3. Although I found above that Ms Wilson surreptitiously modified the terms of her employment agreement, regulation 10(1) has no application to the conduct which W284 alleges constitutes a breach.

B2. REGULATION 13(2)

1. W284 alleges that Ms Wilson breached regulation 13(2) of the Estate Agents Regulations, which provides:

"An estate agent or an agent's representative must not engage in conduct that is unprofessional or detrimental to the reputation or interests of the estate agency industry."

1. Mr Korman agreed that W284's claim in relation to regulation 13(2) is contingent upon W284 succeeding in its restraint claim.

1. Ms Wilson "engaged in a pre-meditated, planned, and sustained course of conduct while employed by Jellis Craig intended to raid [W284]'s rent roll in breach of the restraints lawfully imposed by agreement with her employer on her post-employment conduct" (the plot).[175]
2. The intended result of that course of conduct was that 95 rental management contracts, which W284 had purchased from Landfield for consideration of 3.5 times their annual management income, would be acquired by her new employer, Jellis Craig, at no cost.[176]
3. The Court can be satisfied that Ms Wilson more likely than not engaged in the plot because she surreptitiously modified the terms of her employment agreement and gave false testimony at trial. Ms Wilson lied in the witness box and those lies are evidence of a "consciousness of guilt". She lied about the notation, about not having received the second copy of her employment agreement, denied using the landlord contact information and gave evidence that the email referring to 71 more landlords to come was just a random number.[177]
4. Mr Keleher's involvement in the plot started on or about 6 February when the solicitors provided a copy of Ms Wilson's contract and he saw it.[178] Once he saw the notation without Mr Piccolo's countersignature, Mr Keleher chose to close his eyes to what was in the contract. Mr Keleher was hiding something from the court. The story of Ms Wilson not being a property manager when the contemporaneous evidence establishes that she was, that she was not given a portfolio to manage when she joined, then managed a portfolio of former W284 landlords supports the plot.
5. Ms Wilson's course of conduct was "detrimental to the... interests of the estate agency industry" because it undermined the operation of the rent roll market, an essential component of that industry. Estate agents need certainty that they can protect their rent roll and goodwill by entering into agreements with their employees that include enforceable and appropriate post-employment restraints. Purchasers of rent rolls will perceive themselves as being vulnerable to attack by outgoing rental managers, irrespective of the post- employment restraints that are in place.
6. There is no need to adduce expert evidence on whether Ms Wilson's conduct was detrimental to the interests of the estate agency industry. The existence of a rent roll market was established by the expert evidence of Mr Brindley.[179] The evidence of Mr Brindley,[180] Mr Piccolo[181] and Mr Keleher[182] established that the sale and purchase of rent rolls is a characteristic feature of practice in the estate agency industry. It can readily be inferred, without expert evidence, that Ms Wilson's course of conduct could cause a loss of confidence that property managers will abide by the terms of their post-employment restraints and thus reduce potential purchasers' willingness to risk acquiring rent rolls.

1. The evidence does not establish that Ms Wilson engaged in the plot. Instead, the evidence shows that Ms Wilson endeavoured to assist W284 after her departure by answering queries from Ms Mojaled and referring landlords who contacted her in the first 3 months back to W284.
2. It is a mischievous submission that Mr Keleher colluded with and assisted Ms Wilson to commit any breach. Mr Keleher had a reasonable basis for understanding and believing Ms Wilson's restraint was 3 months. Mr Keleher spoke with Ms Wilson about her restraint and made it clear to her that she was not being offered employment to bring W284 clients across. Ms Wilson advised Mr Keleher that her restraint was 3 months and this seemed reasonable to Mr Keleher given her 18 month employment with W284. When Mr Keleher requested and received a copy of Ms Wilson's employment agreement in February 2019, there was no indication given from the solicitors for the plaintiff that 3 months was not the agreed restraint period as indicated by Ms Wilson.
3. W284 did not lead any evidence to support its assertion that Ms Wilson's alleged course of conduct was detrimental to the interests of the real estate industry.

1. I have found that the restraint is unenforceable and thus W284's claim for breach of regulation 13(2) fails.
2. Had the issue needed determination, I would have found that regulation 13(2), like regulations 10(1) and 7, does not contemplate the conduct alleged.[183] The "conduct" sought to be regulated by regulation 13(2) is conduct relevant to selling, leasing and otherwise dealing with real estate or business on behalf of a client. Regulation 13 should be read in its entirety:

"13 Good practice of estate agents and agents' representatives

(1) An estate agent or an agent's representative must exercise all due skill, care and diligence in performing the functions of an estate agent or an agent's representative (as the case requires).

(2) An estate agent or an agent's representative must not engage in conduct that is unprofessional or detrimental to the reputation or interests of the estate agency industry.

(3) An estate agent or an agent's representative must complete all work on behalf of a principal as soon as is reasonably possible.

(4) An estate agent or an agent's representative must be timely and courteous in all dealings in the course of carrying out the duties of an estate agent or an agent's representative.

(5) Unless a landlord otherwise instructs in writing, if -

(a) an estate agent is managing a rental property on behalf of a landlord, the estate agent must promptly notify the landlord of any breach of a tenancy agreement; or

(b) an agent's representative, who is acting for or on behalf of a licensed estate agent, is managing a rental property on behalf of a landlord, the agent's representative must promptly notify the landlord of any breach of a tenancy agreement.

(6) If an estate agent is acting for the seller of, or if the principal of an agent's representative is the seller of, real estate or a business and a contract of sale for the real estate or business has been entered into and, contrary to the terms of the contract, a deposit has not been received, the estate agent or agent's representative must immediately inform the seller of this fact." (emphasis added)

1. Regulation 13(1) speaks of "functions of... an agent's representative" which I have found to relate to selling, leasing and otherwise dealing with real estate or business on behalf of another person. Regulation 13(4) refers to "duties of... an agent's representative" which in my view, ought be construed in the same or similar, manner. Regulations 13(3), (5) and (6) relate to dealings between estate agents/agent's representatives and clients (specifically principals, landlords and sellers).
2. Had it been necessary to determine, I would not have been satisfied on the balance of probabilities that Ms Wilson engaged in the plot. Mr Korman acknowledged that "[t]he evidence doesn't allow the court to really understand what it was that was going on between them [Mr Keleher and Ms Wilson] other than something was."[184] I am not satisfied that the "something" was the plot. Whilst Ms Wilson's evidence lacked candour at times, which does not reflect well on her integrity, I am not satisfied the inference ought to be drawn on all of the evidence and having regard to Ms Wilson's lack of candour, that she engaged in the plot.[185]
3. Ms Wilson's conduct and unsatisfactory evidence are consistent with Ms Wilson being embarrassed at having led Mr Keleher to believe she had a 3 month restraint in circumstances where:

(a) she had surreptitiously amended her employment agreement; > > (b) she knew it was likely Mr Piccolo was unaware of the notation; > > (c) she was advertised as a property manager for Jellis Craig at the expiration of 3 months after leaving W284; > > (d) Jellis Craig accepted approaches from landlords after the 3 months;

her conduct and assertion of a 3 month restraint was then challenged by W284, embroiling Mr Keleher in litigation.

1. Ms Wilson's refusal to accept commission on the transfer of the properties to which she was otherwise entitled is consistent with her embarrassment at having put Mr Keleher in the position of defending litigation:

(a) Pursuant to the "Jellis Craig Commission Policy - Property Management", she was entitled to $250 commission for each new rental property she listed.[186] Ms Wilson gave evidence, supported by Mr Keleher's evidence, that she had not been paid commission for the 31 properties that transferred from W284's to Jellis Craig's rent roll.[187] She stated: "we got the legal letter and I said, 'I don't want anything at all, don't give me - I don't want any money', I was embarrassed about the whole situation that was going on."[188] > > (b) Mr Korman relied on the entitlement to commission as part of Ms Wilson's motive to engage in the plot. However, Ms Wilson's employment agreement with W284 contained a similar provision.[189]

2. I am not satisfied that Ms Wilson's conduct in making the notation and not bringing it to Mr Piccolo's attention with a view to "sliding it under the radar" supports a finding that she engaged in the plot. I accept that Ms Wilson did not agree to work for W284 "with a plan of leaving."

"You don't work for somebody with a plan of leaving... And that's the same when I agreed to work with Woodards."[190]

1. Her conduct is consistent with having been unhappy with the takeover and wanting to keep her options open.

"When a rent roll is being bought and sold you feel that you're being bought and sold. I didn't select to apply for a job with Woodards, these people were unknown to me. I felt that if I was with Woodards for two weeks I would have been held to restraint for 12 months, six months; unreasonable. Had I been with Woodards for a life-time, had I been happy at Woodards, it would have been totally irrelevant. So if I was unhappy why would I restrain myself for any longer than 3 months? These people were unknown people."[191]

1. In context, Ms Wilson's email of 30 April 2019, in which she wrote "See they will just keep coming... I still have 71 pending, slowly but surely !",[192] is equally consistent with confidence that landlords would continue to approach Ms Wilson of their own accord and that she was waiting for that to happen:

(a) The email was written after some landlords had already transferred management of their properties to Jellis Craig. The language of the email does not assist in forming a view whether they were "coming" because she was soliciting their business, or because they were contacting her because they wanted her to continue managing their properties. They were under no obligation to stay with Woodards. Ms Mojaled gave evidence that when she spoke to a number of the landlords, their response was "... they didn't stay because they wanted to move across to Jellis Craig to be with Carole".[193] > > (b) Ms Wilson's evidence that the number 71 was "pulled out of [her] head"[194] and was "just a key that [she] hit on the keyboard"[195] was unconvincing. However, there was no evidence that the number 71 was significant by reference to the total number of properties managed by her while she was employed by W284. The number itself does not support an inference of poaching or solicitation as opposed to an expression of confidence that some landlords would approach her of their own accord. In my view, a conclusion of "consciousness of guilt" of the plot ought not be drawn on the balance of probabilities.

2. The likelihood that landlords would ring Ms Wilson's personal mobile phone to follow up on her whereabouts after her departure from W284 and "come" of their own accord was increased significantly by Mr Piccolo telling the landlords that Ms Wilson had gone on long service leave. As Mr Korman put to Mr Keleher, it was likely that any landlord that wanted to continue doing business with Ms Wilson would ring her phone, that they had been in the habit of ringing that number whenever they had property issues.[196] This was a near inevitability as the end of her so-called long service period expired.
3. That landlords contacted Ms Wilson is unsurprising given the placement of the advertisement in the Manningham Leader Newspaper.[197] The advertisement contained a photograph of Ms Wilson and stated the following:

"Jellis Craig Manningham welcomes Carole Wilson

We are thrilled to welcome Carole Wilson to Jellis Craig. As one of the area's most senior and experienced property managers, Carole will enhance the finest property management team in Manningham.

With over 20 years of experience and a no-nonsense approach, landlords can be confident that their best interests are looked after.

Contact Carole today for all of your property management needs." (emphasis in original)

1. In my view, the placing of the advertisement by Jellis Craig tends to undermine the plaintiff's case in respect of the plot. Had Ms Wilson retained landlord contact information with a view to soliciting landlords' property management business to build a portfolio of W284 managed properties at Jellis Craig[198], there would likely have been no need to advertise. One might also have expected there to have been evidence of contact with landlords of properties managed by her beyond the 19 landlords that transferred to Jellis Craig.
2. The fact that 31 properties did transfer does not of itself support Ms Wilson's engagement on the plot. Mr Brindley gave evidence that on the sale of a rent roll, about 10% of the purchase price is usually retained as an adjustment to reflect the risk that landlords will fall off the rent roll or take their business elsewhere. Although in a different context, the concept supports the likelihood that upon a property manager such as Ms Wilson departing, some landlords will fall off the rent roll or take their business elsewhere even in the absence of prohibited contact by the departing property manager. As Mr Brindley said:

"Losses can occur through various reasons. A change of sentiment of the property owner and the sentiment might be they know another agent who they would prefer to deal with, but that gets back to the purchasing agent following a process of persuading those new landlords in their business to retain or stay with them."[199]

1. In this case, there was evidence some landlords were unhappy with the service they were receiving at W284 despite efforts made by W284 to retain them:

(a) Landlords expressed concerns with Ms Wilson's successor: > > > (i) George Coletti emailed Mr Piccolo on 13 March 2019,[200] stating:

"The reasoning behind my decision to change the management of my rental properties was as follows: ...

4. Between October and February a number of issues arose re 13a Jonquil Crt which highlighted that it "was not business as usual":

(b) Incorrect details on received contract resulting in further delay

(c) Tenant not paying rent on 1st of the month as per agreement

(d) Tenant not paying the correct monthly rent as per new agreement

(e) Issue with disputed invoice from electrical contractor.

I was not happy with the service as in all the above instances it required a number of follow-ups and weeks to resolve issues.

Issues (c),(d) and (e) were still not resolved at time of management changeover."

(ii) Demi Lagos wrote to Ms Wilson on 16 May 2019,[201] stating:

"I told [Mr Piccolo] that Carole's response and service was exceptional and quite frankly since she left I had not been happy for a number of reasons and for me it was a trial period that was coming to end and had I not found Carole, I would have started looking elsewhere because... (emphasis added)..."[202]

(iii) In text messages to Ms Wilson after Ms Wilson had left, Ms Mojaled noted "more complaints" and "Refer all complaints to me..."[203]

(b) The landlords left despite W284's best efforts to convince them to stay, as described by Ms Mojaled:

"So that's standard procedure where landlords are contacted after a transfer letter is received?---Yes.

Part of that process is to obtain feedback perhaps as to why that was happening including feedback on a staff member?---Yes, feedback as in hopefully to try to retain the management if we can. But most of all it is to get the feedback.

When you say try to retain the management if you can, that would include discussing what can be done about improving the service that was being provided to those landlords?---Just anything really.

So anything, so Woodards would be prepared to discuss and would discuss reducing fees that are being charged for the management of that property?---Yes, yes.

And talk about assigning the management of the property to another staff member if there were difficulties or performance issues with the staff member managing the property at that time?---Correct, we offer them another property manager.

And so when you say do anything, Woodards were open to and explored all options with trying to retain the business as part of that procedure?---Of course, you don't want to lose properties, I mean, that's our job, that's what it revolves around, properties, managing them.

That was a process that was adopted with regards to the 31 properties in this matter given it was a standard procedure?---Yes, the clients were contacted, yes...

And despite that procedure, landlords for the properties the subject of this proceeding did not stay?---No."[204]

(c) In Ms Mojaled's words: "No, [the landlords] didn't stay because they wanted to move across to Jellis Craig to be with Carole".[205]

1. Mr Korman submitted that Mr Keleher became involved in the plot from 6 February 2019 when the solicitors for W284 provided a copy of Ms Wilson's contract and he saw it. It was put that Mr Keleher he did not follow up on the veracity of Ms Wilson's claim to the 3 month restraint because he didn't want to interfere with the flow of the properties.[206] Mr Korman relied on aspects of Mr Keleher's evidence in support of his submission that "Mr Keleher was hiding something from the court."
2. In my view, Mr Keleher's evidence that the advertisement describing Ms Wilson as a Senior Property Manager was "Probably a bit of naivete, whoever wrote the ad probably just assumed that's her role"[207] was unconvincing. However, it is not, in my view, evidence from which his involvement in the plot ought be inferred. Mr Keleher's unconvincing evidence about the drafting of the advertisement is consistent with an awareness of how the advertisement and Ms Wilson's role upon employment as a team leader not a property manager might be perceived in the context of the dispute. It is indicative of a lack of candour on that topic, however I am not satisfied it supports an inference of involvement in the plot.

(a) By 6 February 2019, Ms Wilson had worked for Jellis Craig for 2 months. There is no evidence to contradict Mr Keleher and Ms Wilson's evidence that during that time, she worked as a team leader and trainer. > > (b) In February 2019, Mr Keleher purchased a small rent roll of about 45 properties and made the decision then to embed Carole in the business by managing those properties.[208] The rent roll was purchased, however, after the advertisement advertising Ms Wilson as a Senior Property Manager was published. > > (c) In my view, the more likely explanation for the wording of the advertisement is that there was an expectation that Ms Wilson would move into a property manager role at the expiration of 3 months after she had left W284, Mr Keleher being of the belief, having been told by Ms Wilson, that her restraint period was 3 months. This is consistent with the timing and wording of the advertisement.

3. Had I found that Ms Wilson engaged in the plot, I would not have been satisfied that the plaintiff proved it was detrimental to the interests of the real estate industry.
4. Mr Brindley gave evidence that when a rent roll is sold, it is impossible to gauge exactly how many landlords will transition from the vendor agency to the purchaser agency. When a landlord engages an estate agent to manage their rental property, the landlord usually signs an exclusive leasing authority, which gives the estate agent exclusive rights to lease the property for a specified period of time. If the exclusive leasing period for these landlords has expired, they are free to move agencies at their choosing.

(a) This was the case with respect to all rental properties W284 acquired from Landfield. The landlords the subject of this dispute had signed 60 to 120 day exclusive leasing authorities with Landfield, which had long expired when W284 acquired Landfield's rent roll. > > (b) Mr Piccolo acknowledged this at trial:

"It is true the landlords, the subject of this proceeding, were free so ceased managed arrangement of their property with Woodards at any time they chose to?---That applies to all landlords.

Yes, there is no exclusivity in the management of the properties beyond the exclusive leasing period, is there?---No."[209]

(c) Rent roll sale contracts usually include a retention period and retention sum for this reason.

1. Any conclusion about the impact of the plot (had I been so satisfied) on the rent roll market, and any loss of confidence purchasers of rent rolls may experience, when landlords are free to move estate agencies after their exclusive leasing period has expired is, on the evidence, speculative.

ISSUE C - ALLEGED BREACH OF CONFIDENTIALITY BY MS WILSON[210]

"Did the Third Defendant breach clause 14 "Confidential Information" of the Employment Agreement as alleged?"

1. W284 claims that Ms Wilson breached clause 14 of the employment agreement which is headed "Confidential Information", and provides as follows:

"14.1 For the purposes of this Agreement, "Confidential Information" includes, but is not limited to:

(a) information that is by its nature confidential, or is designated by Woodards as confidential, or which You know or ought reasonably be expected to know is confidential to Woodards; and

(b) all information regarding the current or future business interests, methodology or affairs of Woodards, including matters of a technical nature, notes, products, know how, trade secrets, intellectual property, tools, equipment, engineering or other data, planning or marketing procedures, techniques or information, accounting procedures or financial information, detailed information, records and lists relating to clients, prospective clients, suppliers and staff and parties with whom Woodards deals commercially, computer programs, software and data, forms and documents, training manuals and techniques, products, services, the identities of the current, past and prospective clients, fees and commissions charged by or to Woodards, marketing and sales plans or strategies and financial information relating to Woodards;

but excluding any information which is in or enters the public domain or becomes public knowledge other than through Your fault or the fault of those for whom You are responsible.

14.2 You acknowledge that in the course of Your employment You may obtain access to, or become aware of, Confidential Information which is of commercial value to Woodards and which is owned by and will at all times remain the property of Woodards.

(a) only use Confidential Information for the purposes of performing, and to the extent necessary to perform, Your duties in the course of the Employment;

(b) keep in strictest confidence all Confidential Information;

(c) not disclose to any person any Confidential Information without the consent of Woodards or as otherwise required by law;

(d) not grant or permit any person to have access to or possession of the Confidential Information, other than as required by law;

(e) make any written notes, copy, reproduce, retain, store, record, computerise, documents or duplicate any part of the Confidential Information which appears in written, computerised or other recorded form, except as required in performing Your duties in the course of the Employment; and

(f) promptly at the request of Woodards at any time, disclose and deliver up to the Company, all Confidential information including copies in Your possession, custody and control." (emphasis in original)

1. The plaintiff submitted that the landlords' phone numbers constitute "Confidential Information" that falls within the scope of clause 14. Ms Wilson retained those contact details in her phone when she left Woodards.[211] The plaintiff's case in relation to use of Confidential Information was that:

"Phone records demonstrate Wilson retained Woodards' confidential information - landlord mobile phone numbers - and used it to initiate the transfer of nine of those contracts." [212] (emphasis added)

1. Mr Korman contended that the Court should find that Ms Wilson breached clause 14.3 by using "Confidential Information" "constituted by the phone numbers of"[213] the following transferring landlords, other than for the purpose of performing her duties in the course of her employment with W284:

(a) Demi Lagos - Ms Wilson called Ms Largos on 17 January 2019; > > (b) Lisa Humble - Ms Wilson called Ms Humble on 8 February 2019; > > (c) George Pietrobon - Ms Wilson called Mr Pietrobon on 19 October 2018, then Mr Pietrobon called Ms Wilson back and they had an 11 minute conversation; and > > (d) Peter Layton - Ms Wilson called Mr Layton on 1 May 2019.

1. Clause 14.1(a) applies because landlord contact information constitutes information that was by its nature confidential, or was designated by W284 as confidential, or which Ms Wilson ought reasonably be expected to have known is confidential to W284.
2. Ms Wilson was well aware that she was not permitted to store and retain confidential information, due to clause 14.3(e). This is why Ms Wilson fabricated evidence in relation to the deletion of phone numbers from her mobile phone by Ms Tormey.
3. It was also clear at trial that Ms Wilson knew the client phone numbers was confidential information. She was at pains to emphasise that she did not make first contact with any landlords, which would have necessarily implied use of the confidential information.
4. In any event, Ms Wilson ought reasonably be expected to have known transferring landlords phone numbers were confidential to W284.
5. Further, clause 14.1(b) applies because client phone numbers constitute:

(a) "information regarding the current... business interests" of W284; or > > (b) "records... relating to clients".

1. The defendants submitted that W284 abandoned most of its claims regarding the alleged "Confidential Information", save for what it now describes as the client phone numbers. This is indicative of the speculative nature of W284's breach of confidentiality claims. In its Further Amended Statement of Claim, W284 had pleaded at [12A]:

"The Confidential Information included, but was not restricted to:

1. the contact details of the Woodards Clients including but not limited to their telephone numbers and/or email addresses;

c. knowledge that the Woodards Clients were in possession of Wilson's personal mobile phone number;

1. the property management services required by the Woodards Clients; and
2. the commission currently paid by the Woodards Clients to Woodards for provision of property management services."

1. The plaintiff now relies on the four landlord mobile phone numbers which it contends was used to initiate the transfer of the properties of the four landlords.
2. As W284 is alleging that Ms Wilson breached clause 14 after her employment ceased, W284 must prove that clause 14 is enforceable as a restraint of trade. W284 has not led any evidence to establish the clause 14 goes no further than is reasonably necessary to protect its legitimate business interest with respect to confidential information.
3. In any case, client phone numbers do not fall within the scope of clause 14.1. Clause 14.1 is expressed generally and generically, resulting in obvious ambiguity. The clause does not specifically list client phone numbers as a type of "Confidential Information".
4. With respect to clause 14.1(a), W284 has not proven that the client phone numbers were:

(a) confidential to W284 by their nature; > > (b) confidential due to being designated as such by W284 - there is no evidence from W284 that staff were told, or it was made plainly known to staff, that client phone numbers were confidential; or > > (c) confidential because Ms Wilson ought reasonably be expected to have known they were confidential.

5. With respect to clause 14.2(b), W284 has not proven that the client phone numbers are "information regarding the current and future business interests, methodology or affairs" of W284, and "records and lists relating to clients...the identities of current, past and prospective clients...".
6. Thirdly, even if the client phone numbers did fall within the scope of clause 14.1, it is still necessary for the protected information to be "truly confidential", which it is not. In Wright v Gasweld Pty Ltd (Wright),[214] Kirby P (as he then was) set out a list of factors for identifying truly confidential information:

"• How much skill and effort was expended to acquire the information? A lot of skill and effort suggests confidentiality;

• Has the employer jealously guarded the information? If not, it is unlikely to be confidential;
• Did the employer communicate the confidential nature of the information to the employee? The obligation depends on a personal obligation to keep a secret, so it is important that the employee is made aware of that obligation;
• Is there any industry practice in keeping this kind of information confidential?;
• Has access to the information been restricted only to senior staff? Wide dissemination suggests a lack of any intention to keep information confidential."

1. With respect to these criteria, the defendants submitted:

(a) there is no evidence to establish that W284 expended skill and effort in acquiring the client phone numbers; > > (b) W284 did not jealously guarded the information: > > > (i) there was no evidence that client phone numbers were not readily available to employees of W284; > > > > (ii) W284 did not provide Ms Wilson with a mobile phone, instead permitting her to use her personal mobile phone for work purposes;[215] > > > > (iii) W284 did not have any ownership or control over Ms Wilson's mobile phone,[216] and therefore could not restrict how she used her mobile phone;[217] > > > > (iv) W284 did not restrict how third parties could use Ms Wilson's mobile phone;[218] and > > > > (v) W284 did not review the information on Ms Wilson's mobile phone during her employment;[219] > > > > (vi) W284 did not know what information was on Ms Wilson's phone and cannot say when Ms Wilson would have acquired such information;[220] > > (c) W284 did not make it plainly known to its employees that client phone numbers were confidential; > > (d) W284 did not lead any evidence about usages and practices the real estate industry in relation to confidential information, to support the assertion of confidentiality over client phone numbers; and > > (e) Ms Wilson did not have access to the client phone numbers because of purported seniority or high responsibility at W284.

1. In its written reply submissions, the plaintiff submitted that its claim for breach of confidentiality relates to "the composite data comprising of the identity of Woodards' clients and their contact numbers",[221] not just client phone numbers.
2. There is no ambiguity as to whether clause 14.1 includes this information, given it refers to:

(a) "records... relating to clients"; and > > (b) "'the identities of the current, past and prospective clients".

3. The defendants have misconstrued Wright - there is nothing in that case to support the proposition that contractually protected information must be truly confidential. In fact, Kirby P stated that the reason why employers may contractually protect their information, confidential or not, was because, "[t]he Law will restrain the employee from securing a springboard by which to compete with his former employee".[222]
4. The relevant principles to be applied in determining the validity of a contractual restraint that seeks to protect information were summarised by Gordon J in Zomojo Pty Ltd v Hurd (No 2) (Zomojo).[223] Her Honour held that:

"a. an obligation can be imposed by contract to keep information confidential and that obligation can extend to cover subject matter which is not protected by an equitable duty of confidence;

1. employers are entitled to protect by contractual covenant the use of information that is the result of work, experimentation and expense; and
2. in determining whether a restraint is reasonable the court should consider what is necessary to protect the legitimate interests of the person asserting the restraint in the circumstances of the case, assessed from the date of making the contract and making the best possible estimate of probabilities and contingencies then foreseeable;"

1. Applying Zomojo, Ms Wilson was legitimately constrained by the employment agreement from storing, retaining, or using the contact phone numbers for the four landlords with whom she initiated post-employment contact.
2. The information as to the identity of the landlords and their contact details was part of the rent roll that W284 acquired at substantial expense, and W284's protection of this information from disclosure was necessary to protect its legitimate interests.

1. In my view, in the circumstances of this case, the landlord contact information is not "Confidential Information" within the meaning of clause 14.1.

Clause 14.1(a) - "information that is by its nature confidential"

1. The landlord contact information is not "information that is by its nature confidential" within the meaning of clause 14.1(a). In Wright, Kirby P articulated considerations which the courts have found to be relevant in determining what is confidential in quality.[224] Having regard to those considerations:

(a) Whilst effort was expended to acquire the Landfield business including Landfield rental authorities recording names and contact details of landlords, there is no evidence of "skill or ingenuity of the human brain"[225] having been applied to the landlord contact information such that it was confidential by its nature. > > > (i) In DC Payments Pty Ltd & Anor v Next Payments Pty Ltd & Ors,[226] on which Mr Korman relied, there was a Master Customer List that was a detailed and carefully drafted document of considerable value to a competitor. The fact that the document contained the names of customers, information in the public domain together with sensitive commercial information, did not detract from its essential characteristic as being confidential.[227] > > > > (ii) Mr Korman relied on the observations of Campbell JA in Del Casale v Artedomus (Aust) Pty Ltd,[228] referring to comments of Megarry J in Coco v AN Clark (Engineers) Ltd[229] that:

"... the information is 'of a confidential nature' if it is not 'public property and public knowledge', or if it is 'constructed solely from materials in the public domain', to which 'the skill and ingenuity of the human brain' has been applied. ... This is a fairly undemanding test."[230]

(iii) In the present case, there is evidence of landlord contact information being in the public domain (dealt with below), no evidence of the equivalent of a Master Customer List or that the landlord contact information alleged to have been used by Ms Wilson[231] was compiled from W284 lists or records or had "the skill and ingenuity of the human brain" applied in any way.[232]

(b) The landlord contact information was not information jealously guarded by W284. Ms Wilson used and was permitted to use her personal mobile phone as she was when she was employed by Landfield. Mr Piccolo never restricted the use of her personal mobile phone.[233] Ms Wilson agreed that:

(i) before leaving Landfield she used her personal mobile phone to communicate with all the landlords;[234]

(ii) at the time she was at W284, she had contact details of most of the Landlords of the 31 properties in her phone;[235] and

(iii) sometimes they (the landlords) rang her and sometimes she rang them.[236]

(c) W284 could not have said what contact information was or was not in Ms Wilson's phone, when any contact information in her phone was provided to her or by whom.[237] Mr Piccolo was not even sure whether Ms Wilson used her personal mobile phone at work. He did not think he provided her with a mobile phone back then. When it was put to him that Woodards did not have any ownership or control over Mr Wilson's personal mobile phone, he said he did not know. Ms Tormey accepted W284 did not exercise any ownership or control over her personal mobile phone[238]. She did not know what, if any contact information was in that phone, when it was provided or by whom it was provided.[239]

(d) There was no evidence that W284:

(i) instructed Ms Wilson that despite her use of her personal mobile phone, landlord mobile phone numbers were to be treated as confidential; or

(ii) reviewed the information in her personal mobile phone. Mr Piccolo said he never did.[240] Ms Tormey agreed that W284 did not review the information in the phone during her employment;[241] or

(iii) had a mobile phone use policy.

(e) The information could readily be acquired by others.

(i) The usage and practice of the real estate industry in recording names, mobile phone numbers and property holdings and retaining them across sales and property management departments does not support the assertion that the landlord contact information was confidential information.[242] Real estate agencies have databases where contact information is logged and updated as additional information is provided.[243] Mr Piccolo agreed that real estate agencies in a local area might have the contact information for the same people on each of their databases through interactions with those people in the marketplace.[244]

(ii) Jellis Craig has a database recording names, contacts details and property holdings of many of the transferring landlords before their properties came over from W284, well before Ms Wilson resigned from W284. This database could be accessed by every staff member that works at Jellis Craig in any of its 26 offices.[245] Peter Humble's name, mobile phone number and other property details were first recorded on the Jellis Craig database on 13 November 2017, when consultant Aaron Yeats sent him a Report Letter.[246] Demi Lagos' name and mobile phone number appear on the Jellis Craig database from 12 May 2012.[247] Other transferring landlords not the subject of the allegation of use of confidential information also appear on the Jellis Craig database including Loretta and Frank York's name and mobile phone number from 11 November 2015.[248]

Clause 14.1(a) - "designated by Woodards as confidential"

1. In my view, the landlord contact information was not "designated by Woodards as confidential". W284 did not restrict the use of Ms Wilson's phone to protect landlord contact information.

Clause 14.1(a) - "ought reasonably be expected to know is confidential"

1. In my view, the landlord contact information was not information that Ms Wilson "ought reasonably be expected to know is confidential" to W284 in light of the matters set out above.[249]

Clause 14.1(b) - "information regarding the current or future business interests of Woodards," "records and lists relating to clients...identities of the current, past and prospective clients..." and

1. In my view, a reasonable person in position of the parties would understand the matters specifically enumerated in 14.1(b) to be read in light of 14.2:

"You acknowledge that in the course of Your employment You may obtain access to, or become aware of Confidential Information which is of commercial value to Woodards and which is owned by and will at all times remain the property of Woodards."

1. A reasonable person in the position of the parties would understand a reference to "records and lists relating to clients" to be, consistent with clause 14.2 a record or list created or owned by or the property of W284, as opposed to a mobile phone number in a mobile phone in circumstances where it is unknown how or when that number came to be in the mobile phone.
2. It was common ground that given the nature of mobile phones, when a person rings a mobile phone, that number is recorded in the mobile phone. If, for example, a landlord rang Ms Wilson before commencing employment with W284, or she obtained the number from a source other than a list or record of W284, in my view it could not be said to be information owned by and the property of W284. As noted above, W284 could not say how or when the landlord contact information came to be in Ms Wilson's phone, by whom the information was provided or from where she obtained the information.
3. There was no evidence that Ms Wilson accessed a W284 database, management authorities of Landfield or authorities of W284 which recorded landlord mobile numbers, a list or record of W284 and copied them into her phone. The evidence suggests the contrary:

(a) the mobile phone number for the Humbles recorded on the Landfield management authority[250] is different from the mobile phone number W284 relied on as evidence of use of confidential information by Ms Wilson calling Lisa Humble.[251] There is no evidence of that mobile number being information held by W284. > > (b) The same is the case in respect of Ronald Layton's mobile phone number.[252]

4. In my view, the placing of the advertisement in the Manningham Leader Newspaper[253] tends to support an inference that Ms Wilson did not retain landlord contact information with a view to approaching landlords to solicit their business to build a portfolio of W284 managed properties at Jellis Craig as contended for by the plaintiff. One might have thought had that been the case, there would have been no need to advertise. As Mr Piccolo said:

"In your experience had you ever seen estate agents putting ads in newspapers to publicise the fact that they have a new property manager?---It is not usual practice. We haven't done it from my recollection. I can't remember the last - I can't remember the last time we would have promoted a property manager in print."[254]

1. Even if the landlord contact information was caught by clause 14.1, in my view it would have been "any information which is in or enters the public domain..." and thereby excluded from the operation of clause 14.1. As set out above, Jellis Craig's database contained the names and numbers of landlords on their system, including the landlord contact information.
2. In my view, to attract protection of an express covenant, it is necessary for information the information the subject of the express covenant to be confidential in nature. In Wright, a case involving an express covenant, all three members of the court considered the character of the information said to be protected by the express covenant as confidential[255] and whether it had a "confidential quality" warranting protection. Although an express covenant may protect information which would not, in absence of an express covenant have attracted protection at equity, nevertheless, "Determining what is confidential involves a decision on a question of fact in each case where that quality is asserted."[256] Gleeson CJ highlighted the importance of "a close examination and accurate categorisation of the nature of the alleged... confidential information."[257] This approach is consistent with the passages in Zomojo relied upon by Mr Korman.
3. Having regard to the analysis set out above, in my view, the landlord contact information did not have a confidential quality warranting protection.
4. Given my findings, it is not necessary for me to determine whether the clause 14 restraint on the use of confidential information is unenforceable. Had I determined the issue, I would have accepted the defendant's submission that the plaintiff has not shown that the clause goes not further than is reasonably necessary to protect W284's legitimate interest.

1. Even if the information was confidential information protected by clause 14.1, I am not satisfied that an inference ought to be drawn that when Ms Wilson used the four landlord numbers (as shown on the phone records), she used a record of their phone numbers saved in her mobile phone before she left W284, thereby using confidential information in the way alleged:

(a) As previously noted, in relation to Ms Humble, the mobile phone number used by Ms Wilson on 8 February 2019 was not the mobile number on the Landfield authority relied upon by W284. Peter Humble first made contact with Ms Wilson on 7 December 2018.[258] Ms Wilson's evidence that he called her to give her his condolences on the passing of Ms Wilson's ex-husband is consistent with the date of his passing.[259] > > (b) In relation to Ms Wilson's call to George Pietrobon on 19 October 2018, in my view the evidence supports an earlier conversation having occurred during which they spoke about Ms Wilson going on a cruise. Her evidence that she rang Mr Pietrobon about having her first drink on the cruise when docked in Sydney harbour is corroborated by the call having originated from "Glebe Island" in Sydney Harbour. Absent an earlier conversation about her going on a cruise, it is unlikely Ms Wilson would have rung Mr Pietrobon "out of the blue" from a cruise ship in Sydney Harbour. It is unlikely that the call was about the transfer of property management to Jellis Craig given the context and because the Pietrobon properties did not transfer to Jellis Craig until 9 April 2019, over 6 months and 27 June 2019, 9 months after the telephone call. > > (c) The phone records show that Ms Wilson called Ms Lagos on 17 January 2019. Ms Wilson maintained that Ms Lagos called her first, she did not initiate contact.[260] She said she may have been returning a call.[261] The phone records do not show a mobile phone call from Ms Lagos to Ms Wilson preceding Ms Wilson's call although Ms Lagos' email to Ms Wilson on 6 February 2029 started with the statement "I'm so glad I found you." In relation to Mr Leyton, the phone records do not show a call from Mr Leyton to Ms Wilson preceding her call to him, although Ms Wilson maintained she would have been returning a message because she didn't have his contact number.

2. For the reasons set out below, the evidence does not permit me to find what landlord contact information was or was not in or deleted from Ms Wilson's phone when she left W284:

(a) Whilst Ms Tormey said, and I accept that she did not delete the contacts in Ms Wilson's mobile phone manually, she gave evidence there was "really no need" for her to delete those contacts because the W284 "... IT people can just log people out remotely and change the password. So the next time they try to access their exchange, their emails, they don't have the new password."[262] Either the IT consultants or Ms Tormey can do it.[263] She could not recall who logged Ms Wilson out and changed the password when she left, however, Ms Wilson would not have had access after she left, "as a matter of course we change the password".[264] > > (b) As far as Ms Tormey knew, before Ms Wilson left W284, she could access the email system on her personal mobile phone as she could from her desktop.[265] If contacts were part of her exchange program Ms Wilson "would have no access...".[266] If contacts were provided by people in the course of her employment, Ms Tormey agreed they would be bound up in that exchange email system.[267]

"It is an Outlook exchange program, so there is a calendar, there is emails, there is contacts... So if we had changed the password she wouldn't have had access to any of those."[268]

(c) Mr Korman submitted Ms Wilson's evidence on this topic was a blatant lie and I should reject it. I am not satisfied Ms Wilson's evidence was "a blatant lie" and therefore I should infer that she used confidential information. When Ms Wilson first responded to the allegation of misuse of confidential information in an email to Ms Borg, solicitor on 8 February 2019, she said:

"On 5 October 2018, the Woodards email account and contacts were removed by Stephanie, employed by Woodards. I advised Stephanie that this process also removed most of my own personal contacts... Because the contacts were removed from my personal mobile phone by Woodards, I cannot tell who is calling me... This entire situation has been exacerbated by Woodards decision to advise their clients that I was on Long Service Leave rather than no longer employed, accordingly clients thought they could call me..."[269]

(d) The raising of the issue in the email of 8 February 2019 supports a genuine perception on Ms Wilson's part that Ms Tormey had done something that had the effect of removing contacts from her phone. On Ms Tormey's evidence, something would have been done to remove Ms Wilson's access to the server, but she could not recall whether she had done it or the IT people had done it.

"Further or alternatively, did the Third Defendant breach an equitable duty of confidence owed to the Plaintiff as alleged?"

1. In light of the submissions above and my findings, I am not satisfied Ms Wilson has breached any equitable duty of confidence owed to W284.

"Further or alternatively, did the Third Defendant breach Regulation 7 of the Regulations as alleged?"

1. W284 alleges that Ms Wilson breached regulation 7 of the Estate Agents Regulations, which provides:

"An estate agent and an agent's representative must not at any time use or disclose any confidential information obtained while acting on behalf of a principal, unless authorised by the principal or required by law to do so."

1. The plaintiff submitted that the mobile phone numbers of Demi Lagos, Lisa Humble, George Pietrobon and Peter Layton were "confidential information obtained while acting on behalf of a principal", being Landfield (whose rights in that information were assigned to W284).
2. Ms Wilson used the phone numbers after her employment with W284 ceased without the authority of either principal (either Landfield or W284) and without being required by law to do so.

1. W284's claim for breach of regulation 7 cannot succeed if W284's claim for breach of confidentiality fails.
2. For the same reasons relied on for issue C1, the defendants submitted that the mobile phone numbers of the four landlords were not "confidential information obtained while acting on behalf of a principal".

1. I am not satisfied that Ms Wilson breached regulation 7 of the Estate Agents Regulations.
2. W284's claim is that Ms Wilson used the mobile phone numbers of four landlords which were "confidential information obtained while acting on behalf of a principal", with the principal being Landfield (whose rights in that information were assigned to W284).
3. W284's claim is inconsistent with the definition of "Principal" contained at regulation 5 of the Estate Agents Regulations:

(a) in relation to an estate agent, the person who engages the services of the estate agent to act on the person's behalf;

(b) in relation to an agent's representative, the person who engages the services of the estate agent, for whom the agent's representative is performing the functions of an estate agent, to act on the person's behalf;"

1. Landfield/W284 cannot be a "principal" within the meaning of regulation 7 as it is not a "person who engages the services of the estate agent... to act on the person's behalf". W284's claim for breach of regulation 7 is therefore misconceived and must fail.
2. The definition of "principal" further demonstrates that the Estate Agents Regulations are directed towards the protection of consumers (people who engage the services of estate agents), rather than a situation where a real estate company has been "wronged" by a departing employee.
3. Even if Landfield/W284 did fall within the definition of "principal", I have found that the landlord contact information was not by its nature confidential, designated by W284 as confidential, or ought reasonably be expected to be confidential.[270] I note that the phrase "confidential information" is not defined in the Estate Agents Regulations, and W284 did not make any submissions on how it should be construed. In any event, the landlord contact information does not attract the protection of confidentiality in any respect and therefore Ms Wilson cannot be said to have used "confidential information" contrary to the Estate Agents Regulations.

ISSUE D - ALLEGED BREACH OF THE ESTATE AGENTS ACT BY MR KELEHER[271]

"8. If the Third Defendant breached regulation 7, 10(1) and/or 13(2) of the Regulations as alleged, did the Second Defendant breach the following sections of Estate Agents Act 1980 (Act) as alleged:

(a) section 29B(2)(c) of the Act;

(b) section 29B(2)(d) of the Act;

(c) section 29B(2)(e) of the Act; and/or

(d) section 29B(2)(f) of the Act.

[Note: Breach of Regulation 14 by the Second Defendant is no longer pressed]

1. If the Third Defendant contravened regulation 7, 10(1) and/or 13(2) of the Regulations as alleged, was the Second Defendant "involved in" the Third Defendant's contraventions of the Regulations because he was, for the purposes of section 217(7) of the Australian Consumer Law and Fair Trading Act 2012 (ACLFT Act), as modified by section 93A of the Act, in some way, directly or indirectly, knowingly concerned in the Third Defendant's contravention of:

(b) regulation 10(1) of the Regulations as alleged; and/or

(c) regulation 13(2) of the Regulations as alleged."

1. Given my findings above, issues 8 and 9 do not need to be determined.

ISSUE E - ALLEGED BREACH OF THE ESTATE AGENTS REGULATIONS BY JELLIS CRAIG[272]

"If the answer to issue 9(a), 9(b) and/or 9(c) is "yes", was:

(a) the Second Defendant's state of mind when engaging in the conduct alleged the state of mind of the First Defendant pursuant to section 196(1) of the ACLFT Act; and

(b) was the Second Defendant's conduct (including his omissions to act) as alleged:

(i) within the scope of his actual or apparent authority; and

(ii) consequently, pursuant to section 196(2) of the ACLFT Act, conduct engaged in by the First Defendant?"

1. Given my findings above, issue 10 does not need to be determined.

ISSUE F - LOSS, DAMAGE AND REMEDY[273]

"If the answer to issue 3, 4(a), 4(b), 5, 6 and/or 7 is "yes" what, if any:

(a) loss and damage did the Plaintiff suffer as a result?; and

(b) claimed remedy is it entitled from the Third Defendant?" (emphasis added)

1. Issue 3 in the Joint Statement related to Ms Wilson's alleged breach of the restraint.
2. W284 claims compensation for:

(a) the lost management income from the rental properties which transferred to Jellis Craig - $21,666.26; > > (b) the capital value of the rental management contracts which were lost to Jellis Craig - $160,929.84; and > > (c) the loss of a chance to receive commission from the sale of the rental properties which transferred to Jellis Craig - $101,899.50.

3. Given my findings above, issue 11 does not need to be determined. However, had I determined that a 12 month restraint was enforceable and Ms Wilson breached it with respect to all transferring landlords except for Bruce James, I would have made the following findings with respect to loss and damage.

1. The plaintiff submitted that it is entitled to compensation for the lost management income from the rental properties.
2. 19 landlords with 31 properties moved from W284 to Jellis Craig in the 12 month restraint period, causing W284 to lose $20,791.26 in management income between the dates of transfer and expiration of the 12 month restraint.
3. The table handed up by Mr Korman in the course of closing submissions, which puts the lost management income figure at $21,666.26, is the correct calculation. It includes lost statement preparation fees which total $875.
4. It is unclear where the data in respect of monthly commissions noted in the defendants' amended table of "Correct calculations for loss and damage allegedly suffered by Plaintiff" has been drawn.

1. The defendants submitted that it is appropriate to assess damages on the basis of lost income from the management of the rental properties from the time they were taken away from W284 to the cessation of the enforceable restraint period (i.e. 3 months or 12 months).
2. The loss of commission is $19,471.38, as set out in the defendants' amended table of "Correct calculations for loss and damage allegedly suffered by Plaintiff". Mr Galbraith explained the basis of the calculations in oral closing submissions:

"If you look at the second column in it says, 'Date Woodards paid to as per rental statements'. Previously that column had dates for the dates our management authorities were signed. Now, the reason I changed the dates was because in the evidence of Araf Mojaled it was agreed that Woodards had been paid management fees up to the final date in the rental statements for each property. So I've then included the final date they were paid up to, that is, there's no loss suffered prior to those dates because they're the dates the evidence suggests that rental or management commission is still being received on the properties by Woodards. So whether you agree to my assessment or my friend's assessment, those dates are the relevant dates for that assessment to start."[274]

1. The evidence of Ms Mojaled that Mr Galbraith referred to is the following:

"Sitting here now you can't give the dates of when any of those 31 properties were lost?---I would have to refer to the date on the letter, takeover letter.

Which was the first property lost?---The Manningham.

If we go to the court book then, p425, tab 50, do you see that there?---January 2019.

And that's the letter from Jellis Craig seeking the transfer, do you agree?---Correct.

And if you go back to the rental statement which appears at p423 of the court book, do you see that there?---Yes. There is a column in that that says, 'Paid to' and it's got the date 22 January 2019, do you see that?---Correct, yes.

And that date, 22 January 2019, was the period up to which Woodards received management income for managing this property?---No, rent, they received rent up until that date.

Yes, and the agent fees are calculated as a commission percentage on the rent that is received, correct?---Correct.

So the commission received was calculated up to that date?---Correct, because rent is paid one month in advance.

So the date that that property, I suppose, comes off the books at Woodards is 22 January 2019 onwards?---Correct, from the takeover letter...

But you're paid to 22 January 2019?---Correct."[275]

1. In summary, loss of commission for each property should be calculated from the date W284 was paid commission to the date any enforceable restraint expired.

1. W284 would have been entitled to damages for the lost management income of the subject properties from the time they were taken away from W284 to the cessation of the enforceable restraint period.
2. I would have accepted that W284 received commission for each property up to the date rent was last received from the tenants, and therefore accept the calculation in the defendants' amended table of "Correct calculations for loss and damage allegedly suffered by Plaintiff".
3. I would not have accepted that W284 is entitled to lost statement preparation fees in the sum of $875. W284 did not lead any evidence about statement preparation fees and how they are calculated.

1. W284 is entitled to compensation for the capital value of the lost rental management contracts, valued at the price for which those assets were acquired.
2. A plaintiff who establishes breach of contract is to be restored to the position it would have been in had the defendant not breached the contract.[276] The damages the plaintiff should receive are those that fairly and reasonably would be considered to arise from the breach, or may reasonably be supposed to have been in the contemplation of the parties at the time the contract was formed, as the probable result of the breach.[277]
3. In a case involving rental management contracts where a restraint has been breached, the former employer has a prima facie entitlement to compensation for the loss that directly flows from the outgoing property manager's actions. Adequate countervailing evidence must be adduced to rebut the prima facie entitlement.
4. The former employer will not be compensated for the capital value of the lost rental management contracts if it can be demonstrated that the landlords would have followed the outgoing property manager despite the restraint or the landlords would inevitably been lost. Instead, the former employer is only entitled to compensation for lost management income during the restraint period.
5. In Helensburgh Property Management Pty Ltd v Brady (Helensburgh),[278] the plaintiff sought the capital value of management contracts it lost to the defendant. The defendant in Helensburgh adduced a substantial body of evidence from 16 landlords who all testified that, had the defendant not dealt with them during the restraint period, they would have in any event transferred their custom to the defendant when it expired.[279] The defendants in this case did not call any of the transferring landlords to testify that, irrespective of the level of service provided by W284 and the quality of the relationship they developed with Ms Wilson's successor, they would have inevitably followed Ms Wilson to Jellis Craig after her restraint expired. In this situation, a Jones v Dunkel[280] inference can be drawn that the testimony of the landlords would not have assisted the defendants.
6. In Westpac Banking Services v Jamieson,[281] the Queensland Court of Appeal held that the defendant bears an evidential burden to show that if it had not engaged in the impugned conduct, the plaintiff would nevertheless have incurred a loss. Morrison JA noted that a contention that the claimant would have suffered a loss in any event "must be pleaded with specificity and proven rigorously".[282] The defendants have not done this. There is also no evidence that the transferring landlords left W284 because of "mere dissatisfaction".
7. There is a market for rent roll contracts in Victoria. The prevailing way by which their value is set is by application of a multiplier to the recurring income (i.e. annual management fees) generated by the contract. Mr Brindley stated in his report that:

"The multipliers for the purchase of management contracts will range from a low of 2.8 to a high of 4 times the reoccurring income generated by the management agreements associated with a property management business."

1. The price W284 paid Landfield for its rent roll, that included the 31 properties that were transferred from W284 to Jellis Craig, was based on a multiplier of 3.5 times annual rental management fee income.[283] There was no evidence of any diminution in the value of the assets. In light of this, the capital value of the rental management contracts which W284 lost should also be calculated based on a multiplier of 3.5, totalling $160,929.84.

1. W284's submission that Ms Wilson is entitled to the loss of capital value of the rental management contracts, applying a multiplier of 3.5, is erroneous and misconceived.
2. The defendants agreed with the plaintiff that when assessing damages, it is necessary for the Court to determine the degree of probability of the landlords leaving W284 in any event.[284]
3. Helensburgh Property, including the cases of AMP Services Ltd v Manning[285] and AMP Services Ltd v Manning (No 2) (AMP v Manning),[286] supports the defendants' position:

"In AMP Services Ltd v Manning [2006] FCA 256 and AMP Services Ltd v Manning (No 2) [2007] FCA 82, a case in which many of the plaintiff's clients moved their business to the competitor that the defendants had joined after leaving the plaintiff, Finkelstein J considered the bases on which damages could be awarded. The plaintiff claimed that the capital worth of the business had been diminished by about $4.3 million and sought to recover that amount from the defendants. Although dismissing a number of the plaintiff's claims, his Honour was satisfied that the first defendant had breached her duty to the plaintiff in approaching its clients to entice them to deal with her once she went to work with the competitor ([2006] FCA 256 at [60]). His Honour referred to Southern Real Estate Pty Ltd v Dellow and Arnold and determined that the critical question was the plaintiff's actual loss due to the defendant's breach ([2006] FCA 256 at [64]).

Finkelstein J was satisfied that the plaintiff would not have been able to convince any of the subject clients to remain with it ([2006] FCA 256 at [70]). I am satisfied that this is also the position in the present case. In that case the relevant period before the clients could have moved to the competitor was one month. In the present case the relevant restraint period is six months. Finkelstein J addressed three possible heads of compensation: (1) capital loss arising from the loss of the clients; (2) the income lost in the one month period; and (3) the value of the lost opportunity to retain the clients ([2007] FCA 82 at [5]). His Honour was satisfied that it would not be possible for the plaintiff to recover the capital value of its lost clients because the clients would have been lost even if there were no breach ([2007] FCA 82 at [6]). His Honour assessed damages on the basis of the lost income for the relevant period. In a passage relevant to the circumstances of this case his Honour said ([2007] FCA 82 at [29]):

The value of the lost clients must be considered from the perspective of a potential purchaser who ... is willing to pay for an income stream that he is confident will continue to be received in the foreseeable future. From the moment Ms Manning tendered her resignation no reasonable purchaser would so regard the income received from Ms Manning's clients. Nor would a reasonable purchaser be encouraged into thinking the income was maintainable by the type of strategy Mr Regan had in mind [including writing to clients and holding meetings with them and the defendant]. A purchaser might be willing to pay a token amount for the client list, but he would do so more as a wager than as payment of a reasonable amount for an asset.

I am satisfied that it is not appropriate to assess damages on the basis contended for by the plaintiff as this would be awarding damages for the capital value of the lost clients. Having regard to my findings that the clients would have been lost after 6 months irrespective of the defendant's breach of the Contract, the plaintiff is not entitled to recover the capital value of its lost clients: AMP Services Ltd v Manning (No 2) [2007] FCA 82 at [6].

It is appropriate to assess damages on the basis of the commissions lost..."[287] (emphasis added)

1. The Court can be satisfied that even if Ms Wilson left W284's employment and complied with the alleged restraint, it is highly probable that the landlords would still have moved their business to her. W284 has not adduced any evidence that attrition rates after Ms Wilson's departure could not have been accounted for by "mere dissatisfaction".
2. Like the defendant in Helensburgh Property, Ms Wilson was clearly an "effective and efficient property manager with a loyal following" constituted by the 19 landlords who moved the management of their properties to Jellis Craig.
3. Even if Ms Wilson remained a property manager at W284, there was no guarantee that the landlords would continue to have W284 manage their properties. Mr Piccolo and Ms Mojaled gave evidence that the landlords were not obliged to remain with W284 after the exclusive leasing period expired, and that landlords might leave for any number of reasons without warning and at any time.
4. With respect to the multiplier, there is no proper basis to apply a multiplier of 3.5 to the capital value. Mr Brindley was not provided with the rental management contracts for the purpose of rendering his advice, and therefore had no evidence that would enable him to value the rental management contracts for the 31 properties which moved to Jellis Craig.
5. Mr Brindley also gave evidence that:

(a) the size of the rent roll could affect its price or value; > > (b) the income generated from a rental management contract is usually a monthly fee calculated by reference to a percentage of the rent charged on the property; > > (c) that income is gross revenue and not all profit as there will be running expenses incurred in servicing the management contracts as part of the business; and > > (d) the immediate loss of income to the agency when a landlord departs (which it is free to do at any time) is the management fees.

6. There have also been sales of rent rolls with even lower multipliers than the range given by Mr Brindley. In February 2019, Jellis Craig purchased a "small rent roll of 45 properties" that were located "all through Manningham, [Jellis Craig's] local area".[288] The multiplier in that sale was 2.7 times.[289]

1. W284 would not have been entitled to the capital value of the rental management contracts which were lost to Jellis Craig.
2. I would have considered the degree of probability whether the 19 landlords would have left W284 in any event to be high. I would have been satisfied that even if Ms Wilson had complied with the 12 month restraint, it is highly likely that the landlords would have eventually moved their business to Jellis Craig, or to another estate agency. This is so in absence of direct evidence from the landlords:

(a) The landlords were free to move their rental properties to another estate agency at any time of their choosing, and this was acknowledged by Mr Piccolo. > > (b) Ms Wilson was an "effective and efficient property manager and it is obvious that she has a loyal following".[290] Ms Mojaled agreed in cross-examination that Ms Wilson was a "pretty effective and efficient property manager".[291] Ms Wilson gave unchallenged evidence she was "very well liked".[292] > > (c) Landlords expressed concerns with Ms Wilson's successor, as set out above.[293] > > (d) A further factor is the movement of the management of the landlord properties from Doncaster to Camberwell by W284. > > > (i) The rent roll W284 purchased from Landfield largely consisted of properties situated in Doncaster. Mr Piccolo moved the portfolio of Doncaster properties Ms Wilson managed, from the Woodards Doncaster office to the Woodards Camberwell office. In cross-examination, Mr Piccolo gave the following evidence:

"... that would mean that Doncaster portfolio was then - instead of moving a kilometre down the road to the new office, it was moving from Doncaster all the way into Camberwell, correct?---You make it sound like a long way, it is not that far.

I have driven it, they are not neighbouring suburbs, are they, Mr Piccolo?---Well, the Woodards network, its tentacles spread far and wide and we manage property in our core areas, our primary and secondary areas. As long as you provide a level of service that is satisfactory to an owner, you won't lose the property."[294]

(ii) Despite Mr Piccolo's evidence, W284's relocation from Doncaster to Camberwell was a factor that influenced Ms Lagos' decision to move to Jellis Craig. In her email to Mr Piccolo on 6 February 2019, she stated "the protection of my assets are of key importance to me and I feel that I can be better served by an agency with a physical presence in the area".[295]

(iii) In cross-examination, Ms Mojaled acknowledged that the location of an estate agency could affect whether a property remains on its rent roll:

"Where the property manager employee, so the employee managing the property moves away to another office of the agency away from the area where the property is located. That might be another reason why a person leaves the rent roll, correct?---Correct.

And also where the agency office closest to the property moves or shuts its doors and it is sent to another office further away, that might be another reason someone leaves?---Could be but - yes."[296]

(iv) Ms Mojaled also agreed that in the text messages between her and Ms Wilson, "there are references to properties that are going to other agencies other than Jellis Craig".[297]

(e) The landlords left despite W284's best efforts to convince them to stay, as described by Ms Mojaled.[298]

(f) In Ms Mojaled's words: "No, [the landlords] didn't stay because they wanted to move across to Jellis Craig to be with Carole".[299]

1. If I am wrong and W284 would have been entitled to the capital value of the lost rental management contracts, W284 has not established a proper basis for applying a multiplier of 3.5 to the annual rental management fee received for each property. W284 did not adduce evidence that the rent roll market in Victoria remained stable in the approximate 18 month period between W284 purchasing the rental management contracts and the properties moving to Jellis Craig. Further, Mr Brindley gave evidence of a number of factors that affect the value of rent rolls and the multiplier to be applied. Mr Brindley did not consider the W284 rent roll:

"The multipliers that are applied generally in the industry will vary somewhat due to variations in demographics and social economic factors characteristic of the location.

The size of the portfolio will also impact on price/value purely for quantum reasons.

The potential for rental growth will also impact on portfolio value.

The level of arrears will also impact on portfolio value..."

1. The plaintiff submitted that it is entitled to compensation for the loss of a chance to receive commission from the sale of the rental properties.
2. Damages for loss of a business opportunity may be recovered as consequential loss.[300] Loss is ascertained by reference to the Court's assessment of the prospects of success had the opportunity been pursued.[301]
3. Ten of the 31 properties that transferred from W284 to Jellis Craig have since been sold. Seven of those properties were listed with Jellis Craig. Three chose to list elsewhere.
4. This is consistent with Mr Piccolo's evidence that in his experience, "assuming that there is a good relationship with the owners, it would fall in that 70 to 80 per cent conversion rate" from rental management to sales.[302]
5. Had these properties not transferred to Jellis Craig, W284 would have had the opportunity to sell them and charge commission at a rate of 1.5% plus GST:

"... applying your internal policies for sales commissions, for a property of this kind what sort of sales commission would Woodards have obtained from the vendor, Woodards being the agent that sold the property?---We have a landlord rate but notwithstanding that, that's at our Camberwell office, but it would be at 1.5 per cent plus GST."[303]

1. The loss may be calculated as 1.5% of the seven properties actually sold by Jellis Craig, as the seven properties would be approximately 70% of the ten rental properties which were transferred to Jellis Craig and subsequently sold. Such loss would be $104,899.50.
2. A more accurate method of calculating the loss might have been to calculate the total sale value for the 10 properties, calculate the lost commission, then apply a discount of say 75% to account for the likelihood of earning commission income from those properties. However, there is no evidence as to the sale price for Bruce James' property at 17/316-318 Manningham Road, Doncaster which was not sold by Jellis Craig.
3. There is no issue with the plaintiff seeking damages for both loss of a rental management contract and loss of the opportunity to sell that property. A property being sold does not necessarily mean it will no longer need to be managed as a rental. The buyer may wish to continue leasing out the property and retain the same property manager. In any event, there is a limit to how far the Court can take account of hypothetical possibilities.

1. Firstly, there is no evidence to show that Ms Wilson contacted the former W284 landlords about selling their properties. Even if Ms Wilson remained at W284 and the properties in question were not moved to Jellis Craig, Estate Agents at Jellis Craig could have contacted the landlords about selling.
2. Demi Lagos' properties at 3/243 Blackburn Road, Doncaster East and 5 George Street, Doncaster East were sold by Tony Tuccitto, Jellis Craig Estate Agent & Auctioneer in 2020. The email from Mr Tuccitto to Ms Wilson dated 27 July 2020 shows that "it's the landlord [Ms Lagos] reaching out to the [Jellis Craig] sales department, and the sales department going to Ms Wilson, not a contact the other way":[304]
3. Mr Humble's other property at 19/1-25 Bellevue Avenue, Doncaster East was sold by Kristy Djordevic, Estate Agent at Jellis Craig in 2020. Ms Djordevic reached out to Mr Humble regarding selling, not Ms Wilson.[305]
4. In the period between ceasing employment at W284 and commencing employment at Jellis Craig, Ms Wilson encouraged W284 to sell L T Liauw and S L Lai's property at 22 Oakwood Court, Templestowe, which was later sold by Rod Yam, Estate Agent at Jellis Criag on 24 December 2020. Ms Wilson texted Ms Mojaled about the property "telling Woodards essentially to get on and sell the property":[306]

"Ms Wilson: ... Also don't forget about Oakwood crt :D

Ms Mojaled: ... YES! So should someone contact the landlord for Oakwood?

Ms Wilson: ... For Oakwood, it should nearly be finished getting painted, I told Tania to get photos and sent to the owners, there are loads of emails going back and forth re sale. Just tell them now it's time to sell"[307]

1. Secondly, the evidence does not permit the Court to determine that the claimed loss of a chance to receive commission from the sale of the identified rental properties was anything more than speculative. Landlords may not choose the same estate agency to manage their rental property and subsequently sell such property. This is clear on the evidence.
2. Peter Humble's other property at 17/1-25 Bellevue Avenue, Doncaster East was sold by Ms Djordevic on 23 November 2019. This property "is said to have been managed by Landfield since 2001".[308] The property report for this property, shows in the "For Sale History" that "despite [Landfield] having the management of it, it was listed for sale by Harcourts in Croydon at the same time that it was being managed by Landfield":[309]

1. A property report for 3/243 Blackburn Road, Doncaster East "shows that this property was listed for sale by Ray White Manningham during the period it was in management of the plaintiff and the plaintiff's Landfield".[311]

1. Thirdly, awarding commissions on those sales in the amounts claimed would provide a windfall gain in circumstances where W284 did not market or invest in achieving a commission. Mr Galbraith said in oral closing submissions:

"A commission is not all profit. You need to expend money to earn the commission... The same with the loss commissions on the sales, they didn't spend the money marketing it. Invest the human capital and result in internal expenditure. So to give 1them the full commission means that it's a windfall in the sense that they are being recompensed for expenses in earning the commission which they didn't spend..."[313]

1. Fourthly, the defendants took issue with W284 claiming compensation for both lost capital value and lost commission on sales:

"If the property's sold to... a purchaser to live in, it no longer becomes a property for them to manage. It's no longer an asset of theirs that sits on the book to attain some capital value. So how, on the one hand, can you say, 'I'm entitled to the capital value of a management contract consistent with the value of that asset to me if I had of sold it' when there is an intervening event where the property is sold to someone else and you lose management of the contract and then you also want to claim the commission..."[314]

1. I would have agreed with the defendants that W284's claim for compensation for the loss of a chance to receive commission from the sale of the rental properties is speculative and would provide W284 with a windfall gain.
2. The property reported tendered by the defendants shows that it is not uncommon for one estate agency to manage a property and for another estate agency to sell it. Based on the evidence, it is speculative as to whether W284 would have had the opportunity to sell the properties, even if they had remained on their rent roll.

"If the answer to issue 3, 4(a), 4(b), 5, 6 and/or 7 is "yes" what, if any:

(a) loss and damage did the Plaintiff suffer as a result?; and

(b) claimed remedy is it entitled from the Third Defendant?" (emphasis added)

1. Given my findings above at issue B of this judgment, issue 11 of the Joint Statement does not need to be determined with respect to:

(a) issue 4(a) - regulation 10(a); and > > (b) issue 4(b) - regulation 13(2).

F3. ISSUE C - CLAUSE 14, EQUITABLE DUTY OF CONFIDENCE AND REGULATION 7

"If the answer to issue 3, 4(a), 4(b), 5, 6 and/or 7 is "yes" what, if any:

(a) loss and damage did the Plaintiff suffer as a result?; and

(b) claimed remedy is it entitled from the Third Defendant?" (emphasis added)

1. Given my findings above at issue C of this judgment, issue 11 of the Joint Statement does not need to be determined with respect to:

(a) issue 5 - clause 14 of the employment agreement; > > (b) issue 6 - equitable duty of confidence; and > > (c) issue 7 - regulation 7.

F4. ISSUE D - BREACH OF ESTATE AGENTS ACT BY MR KELEHER

"12. If the answer to issue 8(a), 8(b), 8(c) and/or 8(d) is "yes", what, if any:

(a) loss and damage did the Plaintiff suffer as a result?; and

(b) claimed remedy is it entitled from the Second Defendant?

1. If the answer to issue 9(a), 9(b) and/or 9(c) and both issue 10(a) and issue 10(b) is "yes", what, if any:

(a) loss or damage did the Plaintiff suffer as a result?; and

(b) claimed remedy is it entitled from the First Defendant?" (emphasis added)

1. Given my findings above at issue D of this judgment, issues 12 and 13 of the Joint Statement do not need to be determined.

F5. ISSUE E - BREACH OF ESTATE AGENTS ACT BY JELLIS CRAIG

"If the answer to issue 9(a), 9(b) and/or 9(c) and both issue 10(a) and issue 10(b) is "yes", what, if any:

(a) loss or damage did the Plaintiff suffer as a result?; and

(b) claimed remedy is it entitled from the First Defendant?" (emphasis added)

1. Given my findings above at issue E of this judgment, issue 13 of the Joint Statement does not need to be determined.

1. The plaintiff's claim is dismissed.
2. Subject to any matters that the parties bring to my attention on the question of costs, I propose to order that the plaintiff pay the defendants' costs of the proceeding (including reserved costs) on the standard basis, in default of agreement.
3. I invite the parties to prepare draft orders to give effect to these reasons.

I certify that these 334 paragraphs are a true copy of the judgment of Her Honour Judge Brimer delivered on 17 February 2023.

A. Claims for breach of restraint of trade by the Third Defendant

1. Did the contract of employment between the Plaintiff and the Third Defendant contain an enforceable restraint of trade in the form of clause 2 of the 'Restricted Activity Agreement' at Schedule 3 of the employment agreement signed by the Plaintiff and Third Defendant (Employment Agreement)?
2. If the answer to issue 1 is "yes", was the enforceable restraint period:

(a) three (3) months from the date the Third Defendant's employment ceased as alleged by the Defendants; or > > (b) twelve (12) months from the date the Third Defendant's employment ceased with the Plaintiff as alleged by the Plaintiff.

3. If there was an enforceable restraint of trade for a period of three (3) or twelve (12) months, did the Third Defendant breach any such enforceable restraint of trade as alleged?

B. Alleged breach of the Regulations 10(1) and/or 13(2) by the Third Defendant

1. If the answer to issue 3 is "yes", did the Third Defendant breach:

(a) Regulation 10(1) of the Estate Agents (Professional Conduct) Regulations 2018 (Regulations); and/or > > (b) Regulation 13(2) of the Regulations.

C. Alleged breach of confidentiality obligations by the Third Defendant

1. Did the Third Defendant breach clause 14 "Confidential Information" of the Employment Agreement as alleged?
2. Further or alternatively, did the Third Defendant breach an equitable duty of confidence owed to the Plaintiff as alleged?
3. Further or alternatively, did the Third Defendant breach Regulation 7 of the Regulations as alleged?

D. Alleged breach of the Estate Agents Act 1980 by the Second Defendant

1. If the Third Defendant breached regulation 7, 10(1) and/or 13(2) of the Regulations as alleged, did the Second Defendant breach the following sections of Estate Agents Act 1980 (Act) as alleged:

(a) section 29B(2)(c) of the Act; > > (b) section 29B(2)(d) of the Act; > > (c) section 29B(2)(e) of the Act; and/or > > (d) section 29B(2)(f) of the Act.

2. If the Third Defendant contravened regulation 7, 10(1) and/or 13(2) of the Regulations as alleged, was the Second Defendant "involved in" the Third Defendant's contraventions of the Regulations because he was, for the purposes of section 217(7) of the Australian Consumer Law and Fair Trading Act 2012 (ACLFT Act), as modified by section 93A of the Act, in some way, directly or indirectly, knowingly concerned in the Third Defendant's contravention of:

(a) regulation 7 of the Regulations as alleged; > > (b) regulation 10(1) of the Regulations as alleged; and/or > > (c) regulation 13(2) of the Regulations as alleged.

E. Alleged breach of the Estate Agents Act 1980 by the First Defendant

1. If the answer to issue 9(a), 9(b) and/or 9(c) is "yes", was:

(a) the Second Defendant's state of mind when engaging in the conduct alleged the state of mind of the First Defendant pursuant to section 196(1) of the ACLFT Act; and > > (b) was the Second Defendant's conduct (including his omissions to act) as alleged: > > > (i) within the scope of his actual or apparent authority; and > > > > (ii) consequently, pursuant to section 196(2) of the ACLFT Act, conduct engaged in by the First Defendant?

1. If the answer to issue 3, 4(a), 4(b), 5, 6 and/or 7 is "yes" what, if any:

(a) loss and damage did the Plaintiff suffer as a result?; and > > (b) claimed remedy is it entitled from the Third Defendant?

2. If the answer to issue 8(a), 8(b), 8(c) and/or 8(d) is "yes", what, if any:

(a) loss and damage did the Plaintiff suffer as a result?; and > > (b) claimed remedy is it entitled from the Second Defendant?

3. If the answer to issue 9(a), 9(b) and/or 9(c) and both issue 10(a) and issue 10(b) is "yes", what, if any:

(a) loss or damage did the Plaintiff suffer as a result?; and > > (b) claimed remedy is it entitled from the First Defendant?

[1] Dated 1 May 2017 and signed by John Piccolo on behalf of W284: CB 214-231.

[2] Until W284 "found someone to take over the licence". T 99.10-21 (Piccolo XN).

[3] First in accounts and then as a property manager from 2004. T 166.27, T 51.13-17 (Tormey XN).

[4] T 42.17-18, T 43.4-5 (Tormey XN). T 125.18-25 (Piccolo XXN).

[15] Part A of the Joint Statement: "Claims for breach of restraint of trade by the Third Defendant".

[16] Plaintiff's Reply Closing Submissions dated 5 September 2022, [6]-[7] (Plaintiff's Reply Closing

Submissions). Mr Korman submitted that the evidence demonstrates that Ms Wilson had direct contact with all transferring landlords expect Bruce James during the 12 months prior to termination of her Employment: Plaintiff's Closing Submission dated 18 August 2018, [58] (Plaintiff's Closing Submissions). "It is convenient, then, to focus the analysis on the narrower restraint at cl 2.3(b)(ii) in order to determine whether the restraint is enforceable": [7].

[19] J D Heydon, The Restraint of Trade Doctrine (3rd ed, LexisNexis, 2008) 94.

[20] Plaintiffs closing submissions at [46].

[22] [2012] VSCA 64, [37]-[38] (Maxwell P, Redlich JA and Robson AJA).

[23] [2016] VSCA 334, [38] (Beach and Ferguson JJA and Riordan AJA).

[24] [2004] HCA 52; (2004) 219 CLR 165, [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

[25] Electricity Generation Corp v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, [35] (French CJ,

Hayne, Crennan and Kiefel JJ), cited more recently in Rinehart v Hanock Prospecting Pty Ltd [2019] HCA 13; (2019) 267 CLR 514, [44] (Kiefel CJ, Gageler, Nettle and Gordon JJ).

[26] See Nordenfeldt v Maxim Nordenfeldt Guns and Ammunition Co [1894] UKLawRpAC 52; [1894] AC 535, 565; Lindner v

Murdock's Garage [1950] HCA 48; (1950) 83 CLR 628, 633 (Latham CJ); Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353; Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd [1973] HCA 40; (1973) 133 CLR 288, 376.

[27] [2004] VSC 248.

[30] See, for example, Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449, [53].

[31] Mr Korman relied on Mills v Dunham [1891] UKLawRpCh 16; [1891] 1 Ch 576.

[33] Plaintiff's Reply Closing Submissions, [17] and footnote 13 citing Macquarie Dictionary.

[34] Just Group Ltd v Peck [2016] VSCA 334; (2016) 344 ALR 162, [38(b)(ii)].

[36] And beyond all aspects of W284's business.

[38] Wright v David John Neale Lemon as executor of the estate of Michael John Maynard Wright (No 2)

[2021] WASC 159, [365]-[367].

[39] In this respect, the present circumstances are distinguishable from those in Birdanco Nominees Pty Ltd

v Money [2012] VSCA 64; (2012) 36 VR 341. There was no issue in that case that the restraint was in respect of clients of the firm and for whom he had provided account services within a specific time frame before his employment ceased.

[41] I.F. Asia Pacific Pty Ltd v Galbally & Ors [2003] VSC 192, [108]: While "evident ambiguity appearing

from the text" may justify a narrow construction of literal terms, mere generality does not constitute ambiguity."

[43] [2003] VSC 192.

[46] Plaintiff's Reply Closing Submissions, [15].

[48] Unlike cl 2.3(b)(i) which was a separate and distinct covenant.

[49] Just Group Ltd v Peck [2016] VSCA 334; (2016) 344 ALR 162, [39].

[51] In its Further Amended Statement of Claim dated 11 March 2020, the plaintiff defined "a period of 12

months from the date her employment by Woodards ceases" as the "Restraint Period" [6(b)]. The plaintiff did not plead an enforceable restraint period of 6 month in the alternative.

[52] N Seddon, R Bigwood, and M Ellinghouse, Cheshire and Fifoot Law of Contract (10th ed, LexisNexis,

2012. [3.25] (Cheshire and Fifoot) citing Brambles Holdings Ltd v Bathurst CC (2001) 53 NSWLR 143, [80].

[53] Bourseguin v Stannard Bros. Holdings Pty Ltd (1994) 1Qd R 231, 240.

[55] [2004] HCA 52; (2004) 219 CLR 165, [57].

[56] [1934] 2 KB 394, 403.

[57] [2015] HCA 37; (2015) 256 CLR 104, 116-7 [46]-[51] (citations omitted).

[58] J W Carter, Contract Law in Australia (7th ed, LexisNexis Butterworths, 2018) [3-39].

[59] [1927] HCA 47; (1927) 40 CLR 227, 231. See also Gjergja v Cooper [1987] VicRp 15; [1987] VR 167, 206, 208-11 per Ormiston J

acceptance must be 'truly responsive' to the offer).

[61] Brambles Holdings Ltd v Bathurst CC [2001] NSWCA 61; (2001) 53 NSWLR 153, [80].

[68] "And Carole didn't post her contract back to you, did she, she handed it to you on 8 May? -

[90] "When I was at Woodards I had a conversation with Mr Piccolo, and in that conversation he talked about

a previous court case, or going to court, and he said, 'I will go to court, no problems', I will do this, I will do that, and he struck me as quite - what is the correct word, is it litigious or -". T 356.8-15 (Wilson XXN).

[92] The plaintiff's position based on its usual practice was that Ms Wilson would have given both signed

copies to Ms Tormey, who would have returned one copy to Ms Wilson after Mr Piccolo signed the two contracts.

[93] Ms Chong was a Property Manager who worked with Ms Wilson at Landfield, then at W284. After Ms

Chong resigned from W284, she set up her own real estate agency. W284 received a takeover letter from Ms Chong's agency with respect to one of the properties on its rent roll. See T 50.10-25 (Tormey XN).

[104] On Ms Wilson's evidence, she did not know what Mr Piccolo had signed. She said she never received

a copy of her employment agreement signed by her from W284 with Mr Piccolo's signature.

[105] That there was no challenge to the notation at the time W284 sent a copy of the contract upon request

to the defendants in February 2019, is in my view, consistent with Mr Piccolo being unaware of the notation.

[112] Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, [57].

[115] See Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422;The Commonwealth of Australia v V.L. Investments Pty.

Ltd. (1987) VR 226. It is unnecessary for me to address the plaintiff's claims of misrepresentation giving

[116] Mr Galbraith's submitted that based on the pleadings and the way the plaintiff put its case, "it is either

three or it's 12 on the pleadings between the parties. There is no discussion of the 6 months. So I would say if the plaintiff fails to establish the 12, the pleaded case on the restraint of trade itself fails." T 15.22-31.

[118] Peter Humble: CB 479, CB 480; Donald Mcleod: CB 554.

[119] S L Lai: CB 454; George Coletti: CB 467; Loretta York: CB 550; Vincenzo Molluso: CB 601; Danos Shukuroglou: CB 627; Ronald and Peter Layton: CB 702.

[120] Schedule 1, Column 8 of the Plaintiff's Closing Submissions.

[121] Mr Korman relied on Cactus Imaging Pty Ltd v Peters (2006) 71 NSWLS 9, [39] in support of the

proposition that where there was infrequent contact with a customer it may take a replacement longer to prove his or her competence and develop a rapport.

[126] N E Perry Pty Ltd v Judge [2002] SASC 312; (2002) 84 SASR 86, [28]-[30], [63], [72], [101], [103] (Doyle CJ).

[134] [2013] VSCA 24, [54]-[56] (Warren CJ, Redlich JA and Davies AJA).

[135] Stenhouse Australia Ltd v Phillips [1973] UKPC 1; [1974] AC 391.

[137] Ibid 402 cited in approval in Birdanco Nominees Pty Ltd v Money [2012] VSCA 64; (2012) 36 VR 341, [81].

[138] Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449, [88] (Brereton J); Cactus

Imaging Pty Ltd v Peters [2006] NSWSC 717; (2007) 71 NSWLR 9, [36] (Brereton J); Stacks Taree v Marshall (No 2) [2010] NSWSC 77, [1] (McDougall J).

[139] Cactus Imaging Pty Ltd v Peters [2006] NSWSC 717; (2007) 71 NSWLR 9, [36]; Stacks Taree v Marshall (No 2) [2010]

NSWSC 77, [82]-[83]; Birdanco Nominees Pty Ltd v Money [2012] VSCA 64; (2012) 36 VR 341, [82]; J D Heydon, The Restraint of Trade Doctrine (3rd ed, 2008, Lexis Nexis Butterworths) 169.

[140] [2010] NSWCA 267, [43].

[141] On the assumption the restraint was confined to the W284 property management business, which I

[148] Birdanco Nominees Pty Ltd v Money [2012] VSCA 64; (2012) 36 VR 341, [45].

[153] Considered in more detail with respect to loss and damage below.

[155] There was evidence of discussions regarding the possibility of Ms Wilson's return to W284 in

another role. However, there was no issue Ms Wilson resigned on 28 August 2018 effective 5 October 2018 and was paid out her entitlements including her long service leave on termination. CB 254.

[161] This is dealt with further below.

[162] Her "wage rate" was $68,452.80 (gross) per annum: Item 7, Schedule 1 of the Employment Agreement.

[163] [1973] HCA 40; (1973) 133 CLR 288, 306.

[167] At [10A(b)] of the Amended Notice of Defence to Further Amended Statement of Claim dated 2 April

2022, the defendants pleaded that "...if there was an enforceable restraint of trade, which is denied, Wilson did not canvass, solicit, approach and/or accept approaches from Woodards Clients during the agreed and/or maximum enforceable restraint period of 3 months or at all." Mr Korman, in the Plaintiff's Reply Closing Submissions noted that "The defendants do not dispute the proposition that if Wilson was bound by an enforceable 12 months restraint of trade, it must follow that she breached it...": [47]. No issue was taken with that proposition.

[169] Given W284's concession that Ms Wilson did not have direct dealings with him during the final 12

[170] Mr Galbraith's submission that Ms Wilson did not breach the restraint was focussed on the assumption

of a 3 month enforceable restraint. Mr Galbraith submitted "[t]he landlords approached Ms Wilson after

the 3 months restraint. There's no suggestion of a breach in that, and approaches were accepted after that.": T 600.4-6. Mr Galbraith did not expressly address not did he press that had there been an enforceable 12 month restraint, it would not have been breached.

[171] Part B of the Joint Statement: "Alleged breach of the Regulations 10(1) and/or 13(2) by the Third

[174] The alleged breach the Regulations by "signing up clients" at Jellis Craig is dealt with below in

[175] Plaintiff's Closing Submissions, [95].

[177] On 30 April 2019, Ms Wilson sent an email to Ms Bermingham stating: "See they will just keep coming

... still have 71 pending, slowly but surely !": CB 360. Ms Wilson gave evidence that the email "was [an] officer banter type email" and the number 71 was "a completely random figure", "just a key that I hit on the keyboard": T 208.14-23 (Wilson XN), T 293.12-26 (Wilson XXN). Ms Wilson denied that it was her plan to bring over 95 properties from W284 to Jellis Craig: T 320.3-7 (Wilson XXN).

[179] Expert Report of Mr Brindley, Exhibit B, response to question 5a.

[180] Expert Report of Mr Brindley, Exhibit B, response to question 6: he was aware of "a number" of rent

[181] Mr Piccolo had been involved in the purchase and sale of numerous rent rolls: T 98.4-9 (Piccolo XN).

[182] Mr Keleher had purchased two rent rolls: T 455.31 (Keleher XXN).

[183] Neither counsel was able to find any cases in which these issues and the Regulations have been

considered. This includes the allegations of surreptitiously amending the employment agreement and of signing up clients in circumstances where they were poached in contravention of a restraint.

[185] I have had regard to all of the criticisms of Ms Wilson's conduct and evidence set out in footnote 1 of

the Plaintiff's closing submissions. I deal specifically with the issues focussed most on by the Plaintiff.

[186] CB 277-282, general condition 3.5.

[187] T 241.17-22, 315.7-10 (Wilson XXN), T 486.2-8 (Keleher XN). There was no evidence to the contrary.

[188] T 315.11-16 (Wilson XXN). Mr Keleher gave the following evidence: "So when we got the first letter she

was a bit embarrassed that John was going down this path with her... she said to me at that time, 'I don't want to be paid for any of these properties' which I thought was odd... But she made it really clear, 'I don't want to be paid, it is not about the money' and she was quite upset that we were being put through this.": T 436.12-26 (Keleher XN).

[189] Schedule 2 of the employment agreement provides "you will receive $250 for each new management

[191] T 237.31-T238.9 (Wilson XXN). Also "I was being bought and sold, I did not approach Woodards,

[198] The allegation of 'Use of Confidential Information' is dealt with below.

[202] Mr Korman put to Ms Wilson that she encouraged Ms Lagos to write a letter of complaint to Mr

Piccolo, which was denied: T 353.15-19 (Wilson XXN). Mr Korman submitted that Ms Lagos' email was false and misleading. As she was not called to give evidence, I ought give no weight to her self-serving email. In my view, the complaints raised by Ms Lagos in her email are consistent with other evidence of complaints made. I reject Mr Korman's submission.

[209] T 153.7-13 (Piccolo XXN). Ms Mojaled made the same acknowledgment: T 36.17-22 (Mojaled XXN).

[210] Part C of the Joint Statement: "Alleged breach of confidentiality obligations by the Third Defendant".

[211] Plaintiff's Closing Submissions, [99].

[212] Plaintiff's Closing Submissions, [3]. Mr Korman itemised four names and mobile phone numbers set out

below. In his opening address, Mr Korman stated that "the allegation is specifically customer contact details... mobile phone number, or phone numbers": T 8.21-22. In his closing submissions, Mr Korman identified the confidential information as "more than just the phone numbers, it's the identity of the clients": T 587.6-7. The Plaintiff's Reply Closing Submissions on this point are set out below. In the Plaintiff's Responses to Questions from the Court and Remaining Closing Submissions dated 14 September 2022 at [59]-[60], Mr Korman submitted: "It is not the names, or even the phone numbers, that are inherently confidential. Rather, the confidentiality inheres in the fact that certain individuals happened to be Woodards landlords. That was a fact unknown to Jellis Craig. And it was this fact which transformed what would otherwise be random names or potential contacts into a confidential customer list stored in Wilson's mobile phone.". However, Mr Korman relied on Ms Wilson's "use" of the four mobile phone numbers as the alleged breach of clause 14.

[213] Plaintiff's Closing Submissions, [109].

[214] (1991) 22 NSWLR 317, 334.

[215] T 61.18-20 (Tormey XXN). See also T 141.2-9 (Piccolo XXN).

[216] T 61.21-22 (Tormey XXN). See also T 141.10-13 (Piccolo XXN).

[219] T 61.23-24 (Tormey XXN); T 141.14-15 (Piccolo XXN).

[220] T 61.30-62.11 (Tormey XXN); T 141.18-27 (Piccolo XXN).

[221] Plaintiff's Reply Closing Submissions, [55].

[222] (1991) 22 NSWLR 317, 338.

[223] [2012] FCA 1458, [179].

[224] (1991) 22 NSWLR 317, 334. In Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458, 70, the Court set out

the circumstances to be considered where the restraint concerns confidential information which largely reflect those set out by Kirby J.

[225] Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587.

[226] [2016] VSC 315; (2016) 51 VR 151.

[228] [2007] NSWCA 172; (2007) 73 IPR 326.

[229] (1968) 1A IPR 587.

[231] The four landlord mobile numbers the plaintiff contended were in her mobile phone.

[232] There was no evidence of a particular database or repository of the information. In the Plaintiff's

responses to questions from the court and remaining closing submissions, Mr Korman shifted the focus of his submission in relation to the the alleged confidential information from being "the Transferring landlords' mobile phone numbers" ([104] Plaintiff's closing submissions) and submitted that it was the fact that certain individuals happened to be Woodards landlords that transformed what otherwise would be random names or potential contacts into a confidential customer list stored in Wilson's mobile phone. For the reasons set out below, the late shift in focus does not alter the analysis and conclusion that the landlord contact information was not confidential information within the meaning of clause 14.1.

[235] T345.16-19 (Wilson XXN). Ms Wilson ultimately accepted that she had the contact details for all but one

of the 19 transferring landlords in her phone prior to leaving W284: T 346.5-347.11.

[237] T 141.18-24 (Piccolo XXN). There is no evidence the landlord contact information was compiled from

W284 lists or records. This is analogous to the diary, as opposed to the address book, in N P

Generations Pty Ltd v Feneley [2011] SASC 185.

[242] Mr Piccolo agreed that name and phone numbers are typically recorded or collected when dealing with

people in the course of their business such as at open for inspections: T 141-142 (Piccolo XXN). Mr Keleher said it is very normal for clients to have dealings with multiple agencies in the same suburb or area and to retain information in particular of names, phone numbers and email addresses: T 440.17-22 (Keleher XN).

[249] Schedule 3 is directed to contacting landlords for the purpose of soliciting their business. That Mr

Keleher and Ms Wilson's evidence was consistent with them holding a view that the landlord phone numbers ought not be used by Ms Wilson, is not the determinant of whether the information is confidential in nature.

[250] CB 477-478. The W284 management authority lists only a landline phone number, not a mobile phone

number: CB 479-480. In the case of Demi Lagos, the plaintiff relied on a Landfield management authority.

[251] Defendants' Closing Submissions, [136].

[255] (1991) 22 NSWLR 317, 276 (Samuels JA).

[260] In respect of all of the landlords. T 266.3-7 (Wilson XXN).

[263] "Are you the person that puts these steps into practice?---I can, it's usually our IT consultants that do it,

[271] Part D of the Joint Statement: "Alleged breach of the Estate Agents Act 1980 by the Second Defendant".

[272] Part E of the Joint Statement: "Alleged breach of the Estate Agents Act 1980 by the First Defendant".

[273] Part F of the Joint Statement: "Loss, damage and remedy".

[276] Commonwealth v Amman Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 80.

[277] Hadley v Baxendale (1854) 9 Exch 341, 354.

[278] [2016] NSWSC 253. The plaintiff sued the defendant, its former property manager, for breaching the

terms of her employment agreement, including an implied duty of loyalty and good faith. Whilst still employed by the plaintiff, Brady set up a competing company called "All Over Rentals". Ultimately, 20 landlords and 50 properties moved from the plaintiff to All Over Rentals in the period before the defendant resigned in September 2015 and during the 6 month period of her restraint.

[279] The New South Wales Supreme Court considered "the degree of probability whether the subject clients

would have left the plaintiff in any event". The Court held that the defendant was an extremely effective and efficient property manager with a very loyal following, and even if she complied with her obligation during and after her employment, it is highly probably that the landlords would still have moved their properties to All Over Rentals. The Court awarded damages to the plaintiff on the basis of the commissions lost.

[281] [2015] QCA 50; [2016] 1 Qd R 495, [153]. The plaintiff submitted that while that case concerned misleading or deceptive

conduct rather than breach of contract, the guiding principles are indistinguishable.

[282] Ibid [22]. See also Geju Pry Ltd v Central Highlands Regional Council [2016] WSC 159, [27]-[29].

[284] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 643 (Deane, Gaudron and McHugh JJ) cited with

approval in Helensburgh Property Management Pty Ltd v Brady [2016] NSWSC 253, [103] (Bergin CJ).

[285] [2006] FCA 256.

[286] [2007] FCA 82.

[287] [2016] NSWSC 253, [11]-[13].

[290] Helensburgh Property Management Pty Ltd v Brady [2016] NSWSC 253, [104].

[293] CB 473; CB 452-453.

[300] David Securities Pty Ltd v Commonwealth Bank of Australia [1990] FCA 148; (1990) 93 ALR 271, 295; Chaplin v Hicks

[1911] UKLawRpKQB 104; [1911] 2 KB 786.

[301] Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 335; Hart Security Australia Pty Ltd v Boucousis

[2016] NSWCA 307, [131]-[134]; Howe v Teefy [1927] NSWStRp 41; (1927) 27 SR (NSW) 301.