CONTRACT – contractual interpretation – breach of contract – services agreement between consultant and mortgage broking business – where applicant claimed consultant breached notice period clause – where applicant claimed consultant breached an exclusive service obligation – where applicant claimed consultant breached confidentiality obligations – where consultant made and retained various downloads of customer-related information from the business’s customer relationship management (CRM) system – applicant waived compliance with notice period – applicant not ready and willing to perform its obligations – first respondent breached exclusive service obligation by signing employment contract with another mortgage broking business during term of services agreement – first respondent breached confidentiality obligations by making one of the downloads of confidential information from CRM system – first respondent breached confidentiality obligations by using some other customer information – no loss or damage suffered by applicant – nominal damages awarded
CONTRACT – services agreement – restraint of trade clause – where first respondent prohibited from soliciting, canvassing or approaching a client, customer or patron of the company or any group company – where first respondent prohibited from interfering directly or indirectly with the relationship between the company or any group company and its clients – whether restraint clause was reasonable – whether restraint clause was severable – whether restraint clause included leads generated by the company and the consultant – restraint clause found to be unreasonable and unenforceable
CONTRACT – where services agreement provides for clawback of commission payments made to consultant by mortgage broking business when the lender requires repayment of the corresponding commission – whether business is entitled to clawback certain commission payments – whether there was evidence that the lender in fact demanded repayment of the corresponding commission – applicant entitled to clawback in respect of some customers only
CONTRACT – contractual interpretation – cross-claim for commissions owed under a services agreement – cross-claim for repayment of improper deductions under a services agreement – whether payment of commissions under services agreement depended on amounts being agreed by parties to the contract – cross-applicant entitled to payment of some trail commissions – cross-respondent made improper deductions under services agreement
TORT – economic torts – tort of inducement or procurement of breach of contract – failure to satisfy all elements of the tort – second and third respondents not found to have had the requisite knowledge and intention to procure breach of contract – no loss or damage suffered by the applicant
COPYRIGHT – alleged infringement of copyright in compilations of records in CRM – whether copyright subsisted in the compilation of records in the CRM – whether test for originality is met – whether respondents infringed copyright – whether there was a license to use the copyright in relation to a services agreement – whether an employee’s conduct that was alleged to infringe copyright can be attributed to their employer – no copyright found to subsist in the compilations of records in the CRM – no breach of copyright by the employee – no breach of copyright attributable to the employer
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca0684
For more information, see the original judgement.
