Restraint of Trade and Client-List Data in Real Estate: When can a Court enforce a nine-month post-employment non-solicitation restraint at the interlocutory stage after a departing agent downloads a CRM extract?

Based on the authentic Australian judicial case Premprop Sales Neutral Bay Pty Ltd atf Neutral Bay Sales Unit Trust t/a Belle Property Neutral Bay v Davies [2025] NSWSC 725, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales, Equity Division
Presiding Judge: Richmond J
Cause of Action: Interlocutory relief application seeking restraint of trade enforcement and protection of confidential information following resignation; alleged misuse of a customer relationship management database extract
Judgment Date: 8 July 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Interlocutory injunction
Keyword 3: Restraint of trade
Keyword 4: Customer connection and goodwill
Keyword 5: Confidential information and CRM databases
Keyword 6: Balance of convenience and undertakings

Background

A real estate agency (the Plaintiff) ran a multi-office franchise business on Sydney’s lower North Shore. Like most agencies operating at scale, it relied on a customer relationship management system to organise property listings, owner and buyer interactions, appraisals, marketing templates, and operational know-how. Access was controlled by employee logins and passwords.

A long-serving sales agent (the Defendant) resigned and moved quickly to a competing agency operating in overlapping suburbs. Before leaving, the Defendant downloaded material from the Plaintiff’s CRM. The Plaintiff commenced urgent proceedings seeking to continue interim restraints imposed earlier by another judge, including a broad restraint preventing the Defendant from soliciting or accepting instructions from a wide category of persons described as “Clients”, and orders aimed at preventing deletion or use of the downloaded material.

At this stage, the Court was not deciding the final merits. The question was whether interim restraints should continue until trial, and if so, in what form.

Core Disputes and Claims

The legal focus was narrow but commercially sharp:

1. Whether there was a serious question to be tried that the Defendant was bound by, and had breached or would breach, a valid post-employment restraint clause, such that an interlocutory injunction should continue.

2. Whether the balance of convenience favoured restraining the Defendant’s post-employment work activities pending trial, given the Defendant’s livelihood, the adequacy of damages, the breadth of the proposed restraint, and the Plaintiff’s protectable interests.

3. Whether the Court should make preservation-style orders concerning confidential information (to prevent deletion and to facilitate later inspection), and whether broader “do not use or disclose” orders were necessary.

Relief sought by the Plaintiff (in substance):
– Continuation of restraints preventing the Defendant from soliciting or accepting instructions from defined “Clients” and from dealing with properties in certain postcodes, pending trial.
– Orders compelling delivery up and preventing deletion of data taken from the CRM.
– Continuation of an order requiring the Defendant to keep lists and accounts of appraisals, sales, and new managements.

Position taken by the Defendant (in substance):
– Opposition to a broad interim restraint on competition and client dealings.
– Willingness to give undertakings not to take instructions from individuals who had entered an agency agreement with the Plaintiff during a defined recent period, and to return/delete specified CRM reports and submit devices to an independent forensic search.

Chapter 2: Origin of the Case

The dispute began as a familiar modern employment-and-data conflict: an experienced revenue-generating employee leaves with proximity to customers and with digital traces of the former employer’s customer information.

The relationship between the parties was longstanding. The Defendant had worked for the Plaintiff for many years, initially in leasing and later as a sales agent. When the Defendant moved into the sales role, a new employment agreement was signed. That agreement contained two features common in agency employment contracts:

• A confidentiality regime controlling how internal information could be used and requiring return or destruction of employer material.
• A post-employment restraint regime, framed as a non-solicitation and non-acceptance restriction for a defined “Restraint Period”, designed to protect customer connection and confidential information.

The commercial logic is not complicated. Real estate agencies invest heavily in contact networks, vendor pipelines, buyer databases, appraisal histories, marketing templates, and pricing intelligence. Individual agents develop personal rapport with local owners and repeat investors. When an agent leaves, the business risk is not merely that the agent will compete; it is that customer connection and internal datasets are used to accelerate that competition. The law, however, draws a hard line: an employer has no legitimate interest in merely preventing competition, and must justify any restraint as reasonably necessary to protect goodwill or confidential information.

The “decisive moment” occurred around the resignation and immediate move to a competitor. The Plaintiff alleged that prior to resigning the Defendant downloaded CRM material. The Defendant accepted that downloaded material should be returned or destroyed and proposed undertakings dealing with specific reports, deletion steps, and later forensic inspection. The Plaintiff, however, sought a broader interim restraint—effectively a working prohibition across a wide population of individuals captured in the CRM extract and in the contract’s “Client” definition.

This mismatch—between a targeted “return/delete and do not poach recent vendors” approach and a broad “do not deal with many people in the area” approach—became the core practical dispute on the interlocutory application.

Chapter 3: Key Evidence and Core Disputes

Plaintiff’s Main Evidence and Arguments

1. Director affidavit describing the business and the CRM system
   The Plaintiff’s director gave evidence about:

– The Plaintiff’s operations across multiple offices.
– The CRM’s contents: vendors, potential purchasers, appraisal material, photographs, agency agreements, sale contracts, floorplans, marketing templates, sale statistics, and commission structures.
– Access controls: unique login and password for employees.
– The alleged downloading of CRM material by the Defendant, including compiled downloaded lists attached confidentially to the director’s affidavit.

Strategic purpose: to establish that the Plaintiff had legitimate protectable interests in goodwill and confidential information, and that the Defendant had access and took material capable of misuse.

1. Employee affidavits supporting urgency and risk
   Two employees provided evidence to support the Plaintiff’s position on:

– The Defendant’s role, customer connection, and knowledge of the Plaintiff’s client base.
– The practical risk of solicitation and the difficulty of detection and quantification if an interim restraint were not imposed.

Strategic purpose: to reinforce that damages might be difficult, and that interim protection was needed.

1. Reliance on contractual clauses
   The Plaintiff framed the restraint claim primarily around the post-employment restraint clause and the confidentiality clause in the employment agreement:

– Non-solicitation and non-acceptance of instructions from “Clients” during the restraint period.
– Restrictions on use and disclosure of confidential information.

Strategic purpose: to anchor relief in contract and to present an injunction as enforcing negative covenants.

Respondent’s Main Evidence and Arguments

1. Two affidavits from the Defendant explaining what happened to the downloaded material
   The Defendant gave a detailed explanation of:

– What was downloaded or printed from the CRM.
– What was kept, what was deleted, and what remained.
– Willingness to return and delete specific reports and to swear compliance affidavits.

Strategic purpose: to reduce perceived risk and to support the position that broader “do not use or disclose” interim orders were unnecessary.

1. Evidence about employment consequences and livelihood
   The Defendant gave evidence that:

– The competitor stood the Defendant down and did not permit work while proceedings were on foot.
– The Defendant was no longer paid by the Plaintiff and would suffer significant financial harm if restrained from working pending trial.

Strategic purpose: to shift the balance of convenience against a broad interim restraint.

1. Proposed undertakings as an alternative to the Plaintiff’s proposed orders
   The Defendant offered undertakings:

– Not to accept instructions involving individuals who had entered an agency agreement with the Plaintiff during a defined period from 1 January 2025 to 2 June 2025, expiring on 1 April 2026.
– To return specified printed reports and delete specified electronic reports by set dates.
– To swear an affidavit confirming deletion and return.
– To submit devices to a reasonable independent forensic search.

Strategic purpose: to offer targeted protection of goodwill and data without a broad restraint that would prevent legitimate competition.

Core Dispute Points

1. Scope of “Client” and whether it captured non-customers
   The contract defined “Client” broadly, including persons to whom the employer provided services, persons with whom the employer had dealings, referrers, and persons with whom the employee had direct dealings. The Plaintiff’s proposed interim restraint imported that definition. The dispute was whether that breadth made the interim restraint unreasonable and disconnected from legitimate protectable interests, particularly where the CRM lists included open-home attendees and other individuals who were not “customers” in any real sense.

2. Area limitation and practical compliance
   A major practical issue was that the contract restraint was not framed by area, and the Plaintiff’s proposed interim order attempted to narrow by postcode but still captured properties and individuals in ways that could extend far beyond true customer connection.

3. Confidential information versus the employee’s “know-how”
   The dispute included whether names of property owners and properties were truly confidential or were part of the Defendant’s skill, experience, and market familiarity. This mattered because an interim order preventing use of broad categories can overreach and operate as a de facto non-compete.

4. Adequacy of damages and the utility of record-keeping
   The Court considered whether damages could be quantified as lost commission, especially because an existing order required the Defendant to keep lists and accounts of appraisals, sales, and new managements.

5. Whether undertakings were sufficient
   The Defendant’s undertakings were central to the balance of convenience: they offered meaningful protection for recent agency-agreement customers while avoiding a broad “no dealing” restriction across hundreds or thousands of people.

Chapter 4: Statements in Affidavits

Affidavits are not merely storytelling documents; they are strategic evidentiary engines. They decide what risks are “real” and what risks are “asserted”. In this case, the affidavits operated in two competing modes.

First, the Plaintiff’s affidavits constructed a risk narrative:
– The CRM was portrayed as a protected, internal, business-critical system holding layered data: not only names, but appraisal material, templates, sale statistics, and commission structures.
– The Defendant’s access and downloading was framed as a breach-adjacent act with a high capacity for misuse.
– The practical difficulty of detecting solicitation was implicit: the very point of CRM exploitation is that it can be used quietly.

Second, the Defendant’s affidavits constructed a containment narrative:
– The Defendant described precisely what was downloaded and what was done with it.
– The Defendant presented undertakings that converted uncertainty into checkable steps: return printed reports, delete electronic reports, swear compliance, and allow forensic inspection.

The most important comparative feature was the difference between abstract risk and concrete controllability.

• On the Plaintiff’s account, the risk was structural: access plus resignation plus competitor equals imminent misuse.
• On the Defendant’s account, the risk was operationally manageable: the material could be returned, deleted, and independently checked.

That difference mattered because interlocutory relief is not granted to punish or to “send a message”. It is granted to preserve the position until trial when the risk of injustice without interim relief outweighs the risk of injustice with it.

Strategic Intent Behind Procedural Directions Regarding Affidavits

The Court’s handling of the affidavit evidence reflected classic interlocutory discipline:
– Where a party gives detailed evidence and is not cross-examined, the Court may treat that evidence as carrying significant weight at this stage, particularly when it goes to practical risk and necessity.
– By focusing on undertakings and device inspection, the process moved from broad accusations to verifiable compliance mechanisms. This aligns with equity’s preference for tailored relief that protects legitimate interests while avoiding unnecessary restraint of trade.

Chapter 5: Court Orders

Before the final hearing, the procedural architecture included:

• Urgent short service and interim orders made by an earlier duty judge, including restraints about data preservation and restrictions that were continued by consent without admissions for a limited period.
• Confidentiality protections restricting dissemination of the Plaintiff’s confidential exhibit, limiting who could see the CRM extract material.
• An order requiring the Defendant to keep lists and accounts of appraisals, sales, and new managements pending trial, aimed at traceability and later quantification.

At the interlocutory hearing ultimately determined by Richmond J, the Court:
– Considered whether earlier interim restraint orders should continue until trial.
– Considered whether to replace them with narrower orders.
– Considered whether to accept and record undertakings offered by the Defendant.
– Made directions for future procedural management, including listing before the Equity Registrar for directions and costs orders.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The interlocutory hearing was the legal equivalent of a quick-draw contest: not a full trial, but a decisive contest about interim control.

Two forces shaped the courtroom dynamic.

First, the Plaintiff pressed hardest on the “restraint on solicitation” order. That was the commercial heart. A data-preservation order protects proof; a non-solicitation order protects revenue and pipeline.

Second, the Defendant responded by framing the Plaintiff’s proposed order as overbroad and practically unjust, while offering undertakings that targeted the most plausible protectable interest: recent agency-agreement customers.

Process Reconstruction: Live Restoration

The Court approached the legal framework through established interlocutory principles for injunctions, informed by restraint of trade doctrine in New South Wales:

• The Plaintiff needed to show a serious question to be tried.
• The Court then had to consider the balance of convenience.
• The Court also considered discretionary factors.

In restraint matters, the “serious question” analysis required the Plaintiff to show a prima facie case that:
– A valid contractual restraint existed,
– There was a breach or apprehended breach,
– The Court would likely grant injunctive relief as a matter of discretion.

The Court engaged closely with the scope of the clause and with whether the restraint was reasonably necessary to protect a legitimate interest, referencing the Restraints of Trade Act 1976 (NSW) and authorities including Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 and John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995.

The logical “break points” in the Plaintiff’s case emerged around overreach:
– “Client” captured people not meaningfully customers, including open-home attendees and persons with no dealings with the Defendant.
– The proposed order could restrict the Defendant from dealing with large numbers of people without giving the Defendant access to the list needed to know who those people were, creating a compliance trap.
– The restraint appeared to move from protecting goodwill and confidential information to preventing competition.

Core Evidence Confrontation

The decisive evidentiary confrontation was not a dramatic “gotcha” document. It was a conceptual confrontation between:

• A broad population captured by a CRM extract and a broad contractual definition, versus
• A narrower, objectively identifiable category of people who had actually entered agency agreements with the Plaintiff during a recent period.

The Defendant’s undertakings operated like a measured lock on the Plaintiff’s most plausible goodwill interest. The Plaintiff’s proposed order operated like a wide perimeter fence around an entire suburb-level marketplace.

Judicial Reasoning with Judicial Original Quotation

Context: The Court analysed why the Plaintiff’s proposed non-solicitation order was problematic because it reached beyond true customers and imposed an unworkable restraint at an interim stage.

“First, it extends through the definition of ‘Client’ to persons with whom the defendant never had any personal dealings during his employment with the plaintiff.”

This statement was determinative because it identified the core overbreadth defect: a restraint justified by customer connection loses force when it restrains dealings with people who are not connected to the former employee in a way that could plausibly be treated as the employer’s protectable goodwill.

Context: The Court then explained the practical injustice of restraining dealings with a vast group when the restrained party cannot retain the list needed to comply.

“It is difficult to see what legitimate interest there is in restraining the defendant from dealing with such a large number of people in circumstances where he is to be denied the opportunity to retain a copy of the lists recording their names.”

This mattered because equity does not favour interim orders that set a party up to fail compliance. A restraint must be capable of being understood and obeyed without forcing guesswork.

Context: On the balance of convenience, the Court accepted that damages could be quantified, in part because record-keeping was already ordered.

“For the defendant it was submitted that damages will be an adequate remedy… being the lost commission on sales made by the defendant… because of the records he is required to keep… I accept this submission.”

This passage was pivotal because it neutralised a common pro-injunction argument: that losses in client poaching cases are too difficult to quantify. Here, the Court treated the combination of record-keeping and commission-based loss as making damages a realistic remedy if breach were later found.

Chapter 7: Final Judgment of the Court

The Court’s orders at the interlocutory stage can be summarised as follows:

1. The Court made a preservation-style order restraining deletion or steps likely to impede recovery or inspection of confidential information contained in compiled downloaded lists identified in the Plaintiff’s evidence, pending trial, subject to compliance with the Defendant’s undertakings.

2. The Court vacated earlier broad interlocutory restraint orders that had restrained the Defendant more extensively.

3. The Court continued the existing order requiring the Defendant to keep lists and accounts of real estate market appraisals, sales, and new managements involving the Defendant, pending trial.

4. The Court otherwise dismissed the Plaintiff’s application for broader interlocutory relief.

5. The Court recorded undertakings from the Defendant to the Plaintiff and to the Court, including:

– Not to accept instructions to enter, or cause the competitor to enter, an agency agreement with any individual who had entered an agency agreement with the Plaintiff between 1 January 2025 and 2 June 2025, expiring on 1 April 2026.
– To return specified printed reports and delete specified electronic reports by set dates.
– To swear an affidavit confirming compliance and lack of possession of derived information.
– To submit mobile phone and personal computer to a reasonable independent forensic search by a forensic expert, at the Plaintiff’s cost in the first instance, for the purpose of ensuring the Defendant did not retain downloaded CRM information.

1. The matter was listed before the Equity Registrar for directions, with costs of the interlocutory application ordered to be costs in the cause.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

The Court’s reasoning is best understood through a five-link structure:

1) Statutory provisions and governing legal tests
2) Evidence chain and practical risk assessment
3) Judicial original quotation capturing the decisive logic
4) How the losing position failed against the test
5) Why tailored alternatives, such as undertakings, achieved justice

The “victory” at this stage was not a final victory on liability. It was a victory on the shape of interim relief: the Plaintiff secured evidence preservation and device-inspection mechanisms, but did not secure a broad interim restraint preventing the Defendant from working or dealing with a wide population.

Special Analysis

1. The Restraints of Trade Act 1976 (NSW) pushes the Court toward calibrated restraint, not all-or-nothing enforcement
   New South Wales operates under a statutory framework where restraints can be valid to the extent they are not against public policy, even if not drafted in severable terms. The Court described the two-step approach: first construe whether the alleged breach infringes the restraint’s terms; then consider whether the restraint, in its application, is contrary to public policy. This statutory structure makes “read down” reasoning and tailored interim outcomes more likely than in jurisdictions without a similar statute.

This is jurisprudentially significant because it encourages:
– Close attention to the exact conduct to be restrained.
– Skepticism toward restraints that operate as general non-competes.
– A focus on whether the restraint is reasonably necessary to protect a legitimate interest.

1. The Court treated “open-home attendee data” as a red-flag category for overreach
   The Court identified that a real estate CRM can contain information about people who attend inspections and make enquiries. Capturing those people as “Clients” for restraint purposes risks converting a goodwill protection clause into an industry-wide restraint.

This matters beyond real estate. In many industries, CRMs include leads, casual enquirers, newsletter subscribers, and third parties. The judgment highlights a practical principle: the broader and less “customer-like” the CRM category, the harder it is to justify restraint enforcement—especially on an interlocutory basis.

1. The Court gave weight to verifiable containment mechanisms over abstract restraint
   The Court’s acceptance of undertakings and forensic inspection as sufficient protection reflects an equity-driven preference: if the real risk is misuse of confidential information and poaching of recent contracted customers, that risk can often be addressed with:

– Return and deletion obligations,
– Device inspection,
– Narrow no-instruction undertakings tied to objectively identifiable transactions,
– Record-keeping to support later damages.

This is a disciplined approach that prevents interlocutory injunctions becoming de facto final relief.

Judgment Points

1. A serious question can exist even where the prima facie case for broad injunctive enforcement is not strong
   The Court accepted there was a serious question to be tried, but explicitly assessed the Plaintiff’s case for enforcing the restraint clause or the proposed narrower injunction as “not a strong one” because the restraint appeared to go beyond what was reasonably necessary to protect goodwill or confidential information.

Practical lesson: “serious question” is not a guarantee of the order sought. It opens the door; the balance of convenience determines whether the Court walks through it.

1. Area-free client restraints are vulnerable, especially where “Client” is drafted as a business-wide catch-all
   The judgment underscores a drafting risk: a restraint clause that is not geographically limited, combined with an expansive “Client” definition, can become unreasonable as between the parties. In industries with broad lead-capture, the clause may restrain dealings with individuals who are not properly customers.

2. The Court is alert to compliance impossibility, especially where confidentiality orders prevent the restrained party from seeing the list
   A restraint that prevents dealing with people listed in a confidential exhibit, while also preventing the Defendant from seeing the list, creates an unfair compliance environment. The Court treated this as a serious difficulty and compared it with authority emphasising practical fairness in enforcement.

3. “Confidential information” is not a label that automatically attaches to contact names and addresses
   The Court indicated that some information, such as names of property owners and property names, may be part of an employee’s know-how rather than information with the necessary quality of confidence. This is not a licence to steal data, but it is a warning that restraint orders must be tailored to protect information truly confidential in equity or under contract.

4. Adequacy of damages can defeat a broad interlocutory restraint in commission-based markets when record-keeping is in place
   The Court accepted that damages could be readily quantifiable as lost commission, supported by record-keeping obligations. This is a meaningful counterpoint to the common argument that solicitation breaches are inherently hard to quantify.

5. Undertakings can provide sufficient protection for goodwill without imposing an anti-competitive interim injunction
   The Defendant’s undertaking not to accept instructions from individuals who had entered agency agreements with the Plaintiff during a defined recent period provided “reasonable protection” for goodwill. The Court treated additional broader restraint as veering into prevention of legitimate competition, inconsistent with the policy of restraint law.

6. Livelihood consequences weigh heavily where the competitor stands the employee down
   The Court accepted evidence that the competitor stood the Defendant down pending proceedings. This made the practical effect of a broad interim restraint particularly harsh: it would prevent income in the Defendant’s field of expertise while the matter awaited final hearing.

7. Preservation orders are easier to justify than wide non-solicitation orders
   The Court made a preservation order preventing deletion or impediment to recovery or inspection. That order protects evidence and reduces forensic risk. By contrast, broad behavioural restraints are more likely to be refused when overbroad or when damages and undertakings provide adequate protection.

Legal Basis

Key principles and sources applied by the Court included:

• Interlocutory injunction principles and the “serious question to be tried” test, drawn from Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 and applied in restraint contexts by authority including John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995.

• Restraints of trade validity and enforceability in New South Wales under the Restraints of Trade Act 1976 (NSW), including the approach to reasonableness as between the parties, public interest considerations, and statutory reading down principles, with reference to Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343 and Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Ltd [2001] NSWCA 111.

• Legitimate interests capable of protection by restraint: goodwill and confidential information, and the prohibition on restraints aimed merely at preventing competition, informed by authority including Tullett Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 852 and Lindner v Murdock’s Garage (1950) 83 CLR 628.

• Balance of convenience considerations, including adequacy of damages, livelihood, delay, third-party impact, “eyes wide open” employment decisions, and undertakings, with reference to Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 and HiTech Group Australia Ltd v Riachi [2021] NSWSC 1212.

• Treatment of information as “know-how” versus confidential information with the necessary quality of confidence, with reference to Optus Networks Pty Ltd v Telstra Corporation Limited [2010] FCAFC 21 and Riteway Express Pty Ltd v Clayton (1987) 10 NSWLR 238.

Evidence Chain

The Court’s interim outcome followed a clear evidence chain:

1. The Plaintiff established the existence of a CRM system, the Defendant’s access, and the act of downloading material.

2. The Plaintiff relied on a contract restraint clause framed around “Clients” and a cascading restraint period, but the clause lacked clear geographic limitation and used an expansive “Client” definition.

3. The evidence showed the downloaded lists included categories such as open-home attendees and others not properly “customers” in the relevant goodwill sense.

4. The Defendant gave detailed evidence about what had been downloaded and what would be returned/deleted, and offered undertakings with objective boundaries.

5. The Defendant’s evidence about being stood down and suffering livelihood harm was not undermined at this stage.

6. The existing order requiring record-keeping reduced uncertainty about quantifying damages.

7. In combination, these elements led to a tailored approach: preserve evidence and impose compliance mechanisms for data, but refuse broad interim restraints on solicitation.

Judicial Original Quotation

Context: The Court articulated why the Plaintiff’s proposed restraint operated beyond legitimate protection of goodwill, especially given the breadth of “Client”.

“Those persons are not customers of the plaintiff simply because they attended an open for inspection of the property owned by a customer of the plaintiff.”

This was determinative because it set a boundary line for customer connection in a real estate context. A person’s mere attendance at an inspection does not automatically convert that person into the agency’s protectable customer relationship for restraint purposes.

Context: The Court then described the policy concern of using interim restraints to prevent legitimate competition where undertakings sufficiently protect goodwill.

“To provide, in addition, an injunction in the terms sought appears to serve only to prevent legitimate competition, which is inconsistent with the policy of the Act.”

This statement was decisive because it located the proposed order on the wrong side of the restraint-of-trade line: protection of legitimate interest versus suppression of competition.

Analysis of the Losing Party’s Failure

At this interlocutory stage, the Plaintiff’s broader restraint application failed for reasons that can be stated plainly:

1. Overbreadth in the restrained population
   The proposed order restrained dealings with people who were not meaningfully customers, including open-home attendees and others with no direct dealings with the Defendant.

2. Overbreadth in property-based consequences
   The proposed order risked restraining dealings with purchasers and others in relation to properties in the suburbs even when those people were not customers of the Plaintiff.

3. Practical unfairness and compliance difficulty
   The Plaintiff’s position depended on lists that the Defendant could not retain and might not be able to see due to confidentiality orders, making compliance risky and uncertain.

4. Weakness in confidential information justification for broad restraint
   The Court accepted that much of the information in issue might be “know-how”, making it harder to justify broad behavioural restraints on an interim basis.

5. Adequacy of damages supported by record-keeping
   The Court accepted that damages could be quantified as lost commission, reducing the need for an interim behavioural restraint.

6. Undertakings provided a proportional alternative
   The Defendant’s undertakings offered reasonable protection for goodwill, making additional broad restraint look like competition suppression rather than legitimate protection.

7. Livelihood impact was significant and immediate
   The Defendant was stood down by the competitor, meaning a broad interim restraint would effectively bar the Defendant from earning income in the field pending trial.

Reference to Comparable Authorities

• Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
  Ratio: Interlocutory injunction requires a serious question to be tried and a balance of convenience favouring relief; the strength of the case is assessed at a preliminary level, not as a final determination.

• John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995
  Ratio: In restraint cases, the applicant must show a prima facie case of a valid restraint, breach or apprehended breach, and that the Court would grant injunctive relief as a matter of discretion; reasonableness is assessed at contract formation, but discretion considers circumstances at hearing.

• Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343
  Ratio: Under the Restraints of Trade Act 1976 (NSW), restraints can be valid to the extent they are not against public policy; the analysis involves construction of the restraint and public policy reasonableness as between the parties and in the public interest.

• Optus Networks Pty Ltd v Telstra Corporation Limited [2010] FCAFC 21
  Ratio: Not all commercially useful information has the necessary quality of confidence; courts distinguish between genuinely confidential information and general know-how.

• Shire Real Estate Pty Ltd v Kersten [2021] NSWSC 1255
  Ratio: In some post-employment restraint contexts, damages may be an adequate remedy and interlocutory injunctions may be refused where relief sought is disproportionate to legitimate interests.

Key to Victory

At the interlocutory stage, the “successful” strategy was the one that looked most like justice between the parties:

• For the Plaintiff: securing evidence-preservation relief and enforceable compliance mechanisms, including recorded undertakings, deletion and return steps, and forensic inspection.

• For the Defendant: defeating a broad interim restraint by showing overbreadth, offering narrower undertakings targeted to recent agency-agreement customers, and establishing disproportionate livelihood harm.

Implications

1. If you are an employee, treat CRM extraction as radioactive
   Even if you believe you “built the relationships”, downloading CRM reports before resignation tends to be viewed as a high-risk act. Courts can respond with preservation orders, forensic inspections, and obligations that affect your ability to work while proceedings run.

2. If you are an employer, your restraint clause must match your legitimate interest
   A restraint drafted as a wide “no dealing with Clients” clause risks being treated as overreach if it captures non-customers such as inspection attendees. Drafting that mirrors true customer connection, with objective boundaries, tends to be more defensible.

3. Goodwill is protectable; competition is not
   Courts can and do protect genuine goodwill. But when a restraint looks like a broad ban on competing rather than a shield around customer connection, it tends to be resisted, especially at the interim stage.

4. Undertakings are not weakness—they are a litigation tool
   Targeted undertakings can give a court confidence that the employer’s interests are protected without freezing the employee out of the market. They can also reduce cost and shorten the dispute.

5. Evidence management can decide the interim outcome
   When there is a realistic pathway to quantify loss, such as commission-based markets with record-keeping orders, a court may lean away from broad interim restraints and toward damages as a practical remedy.

Q&A Session

1. If a restraint clause says “do not solicit any Client for nine months”, will the Court enforce it automatically?
   Not automatically. The Court assesses whether the restraint protects a legitimate interest, such as goodwill or confidential information, and whether it goes no further than reasonably necessary. If the clause captures people who are not properly customers or operates without workable boundaries, enforcement may be limited, especially on an interlocutory basis.

2. Is a list of property owners always “confidential information”?
   Not always. Courts distinguish between information with the necessary quality of confidence and information that is part of an employee’s know-how and market familiarity. The context, how the information was obtained, the extent of confidentiality controls, and whether the information is otherwise publicly available can all matter.

3. Why would a Court prefer undertakings and forensic inspection instead of a broad injunction?
   Because interim relief must be proportionate. If targeted undertakings and device inspection can reasonably protect goodwill and prevent misuse of data, a broad restraint that blocks livelihood and risks suppressing legitimate competition may not be justified pending trial.

---

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Employment Contract Post-Employment Restraint and Confidential Information Dispute in the Real Estate Industry
Judgment Nature Definition: Interlocutory Judgment concerning continuation and scope of interim injunctions, with recorded undertakings and evidence-preservation orders

2. Self-examination of Core Statutory Elements

This case most closely aligns with Category ③ Employment and Workplace Disputes (Industrial Relations Law). The following core tests are general reference standards. Outcomes tend to depend on specific facts, the governing statute, and the evidentiary record, and should be considered in context.

Core Test: Unfair Dismissal under the Fair Work Act 2009 (Cth)

Step 1: Identify coverage and jurisdiction
– Confirm the person is protected from unfair dismissal, including minimum employment period and earnings threshold or award coverage. Jurisdictional coverage tends to be determinative at an early stage.

Step 2: Valid reason related to capacity or conduct
– Assess whether there was a valid reason connected to the employee’s capacity or conduct. A valid reason tends to require more than a mere preference or convenience.

Step 3: Notification of reason
– Consider whether the employee was notified of the reason. Lack of clear notification can increase unfairness risk.

Step 4: Opportunity to respond
– Determine whether the employee was given a real opportunity to respond before the dismissal decision was made.

Step 5: Harsh, unjust, or unreasonable assessment
– Evaluate whether the dismissal was harsh, unjust, or unreasonable considering all circumstances, including proportionality, personal circumstances, procedural fairness, and the gravity of alleged conduct.

Relevance to the present case: Although this judgment concerns a post-employment restraint and confidentiality dispute rather than unfair dismissal, practitioners often see these disputes in parallel, especially where resignation, termination, and data allegations overlap. Parties should be alert that employment-law pathways and contract-equity pathways can interact.

Core Test: General Protections under the Fair Work Act 2009 (Cth)

Step 1: Identify adverse action
– Determine whether the employer took adverse action, such as dismissal, demotion, injury in employment, or discrimination.

Step 2: Identify workplace right
– Determine whether the employee exercised, proposed to exercise, or had the ability to exercise a workplace right, including making a complaint or inquiry.

Step 3: Causation and prohibited reason
– Assess whether the adverse action was taken because of the workplace right. The reverse onus of proof means the decision-maker’s reasons become central.

Step 4: Evidence focus
– Evidence tends to centre on contemporaneous documents, internal communications, and decision-maker testimony about reasons.

Relevance to the present case: In restraint disputes, parties sometimes attempt to frame employer conduct, such as threatening proceedings, as adverse action. That path tends to require careful proof of prohibited reasons.

Core Test: Sham Contracting

Step 1: Characterisation of the relationship
– Examine whether the worker is genuinely an independent contractor or a disguised employee.

Step 2: Indicators of employment versus contracting
– Tools and equipment provision, financial risk, ability to delegate, control over work, integration into business, exclusivity, and ability to work for multiple clients.

Step 3: Substance over form
– Labels in contracts tend not to be determinative; courts examine practical reality.

Relevance to the present case: In real estate, remuneration structures and “contractor agent” models can create classification disputes that overlap with restraint enforcement.

3. Equitable Remedies and Alternative Claims

Where statutory law is inapplicable or incomplete, equity and common law doctrines can offer alternative or supplementary pathways. The availability and strength of these pathways tends to depend on precise facts and the quality of evidence.

Promissory Estoppel and Proprietary Estoppel

Step 1: Identify a clear and unequivocal representation
– Did one party make a representation about future conduct, such as promising continued access to leads, ownership of a book of business, or allocation of a territory?

Step 2: Reliance and detriment
– Did the other party rely on the representation by acting to their detriment, such as turning down other opportunities, investing time and money, or making business changes?

Step 3: Unconscionability
– Would it be against conscience for the representor to depart from the representation?

Potential result
– Relief tends to be tailored to avoid unconscionability, and may include orders preventing resiling from the promise, or compensation-like relief.

Application lens for this case type
– Estoppel arguments sometimes arise where an employer encouraged an employee to build a “personal book” and later claims exclusive ownership, or where the employer represented that restraints would not be enforced. These arguments tend to require strong evidence.

Unjust Enrichment and Constructive Trust

Step 1: Benefit to the other party at your expense
– Has one party received a benefit, such as unpaid labour or transferred value, without a legal basis?

Step 2: Unjust factor
– Mistake, failure of consideration, unconscionability, or other recognised unjust factors.

Step 3: Remedy selection
– Restitution or equitable proprietary relief may be considered where appropriate.

Application lens for this case type
– In restraint disputes, constructive trust claims may arise if confidential information or database material was misappropriated and used to generate profits, particularly where tracing is possible. Outcomes tend to be fact-sensitive.

Procedural Fairness

Although more common in administrative law, procedural fairness concepts can appear in workplace contexts, particularly where contractual or policy-driven processes were promised:
– Opportunity to be heard
– Absence of apprehended bias
– Rational decision-making

This is more likely to be relevant where disciplinary procedures or internal investigations are disputed.

Ancillary Claims

If one claim fails, parties sometimes consider reframing:
– If a broad restraint injunction is refused, a narrower claim focused on confidential information misuse and targeted customers may remain viable.
– If contractual restraint is weak, equitable duty of confidence may still provide relief, depending on the confidentiality quality of the information.

4. Access Thresholds and Exceptional Circumstances

Hard thresholds vary by pathway. The following are common indicators and exceptions relevant to employment and restraint-adjacent disputes.

Regular Thresholds

• Filing deadlines: Unfair dismissal applications tend to have a strict filing period, commonly 21 days from dismissal, subject to limited extension discretion.
• Jurisdictional thresholds: Earnings threshold or award coverage can be decisive for unfair dismissal protection.
• Restraint enforcement threshold: The employer typically needs to show a legitimate protectable interest and that the restraint is reasonably necessary for that protection.
• Confidentiality threshold: Information tends to require the necessary quality of confidence, and misuse or threatened misuse must be evidenced.

Exceptional Channels

• Late filing extensions: Extensions may be available in limited circumstances, including exceptional circumstances such as serious illness, significant error, or other compelling obstacles, depending on the statutory scheme.
• Restraint “reading down”: In New South Wales, statutory mechanisms can permit restraints to operate to the extent reasonable, but outcomes tend to depend on the conduct restrained and public policy analysis.
• Tailored interim relief: Even if broad restraints are refused, courts may grant preservation orders, delivery up, device inspection, and record-keeping requirements where appropriate.

Suggestion
Do not abandon a potential claim simply because you do not meet a standard time or condition. Carefully compare your circumstances against possible exceptions and alternative causes of action. In restraint disputes, narrower, evidence-based relief tends to have relatively higher prospects than broad market-wide restraints.

5. Guidelines for Judicial and Legal Citation

Citation Angle
It is recommended to cite this case in legal submissions or debates involving:
– The interlocutory enforcement of post-employment restraints where the “Client” definition is broad and captures non-customers.
– The balance of convenience in commission-based industries where damages may be quantifiable through record-keeping.
– The use of undertakings and forensic inspection as proportionate alternatives to broad interim restraints.
– The treatment of CRM-derived contact lists and the distinction between confidential information and employee know-how.

Citation Method
As Positive Support
– Where your matter involves a broad contractual definition that captures casual enquirers or inspection attendees, this authority can support an argument that interim restraints should be narrowed to protect genuine customer connection rather than suppress competition.
– Where your matter involves commission-based loss and enforceable record-keeping, this authority can support the contention that damages may be an adequate remedy pending trial.
– Where the opposing party seeks broad interim restraints despite practical compliance difficulties, this authority can support a proportionality-focused approach using undertakings and evidence-preservation orders.

As a Distinguishing Reference
– If the opposing party cites this case to resist restraints, you can distinguish where your facts involve a tighter “client” cohort, a managerial employee with strategic data access, clear evidence of misuse, or a restraint drafted with objective geographic and customer-connection boundaries.

Anonymisation Rule
Do not use the real names of the parties in narrative or analysis. Use procedural titles such as Plaintiff and Defendant, consistent with professional publication practice.

---

Conclusion

This judgment shows that post-employment restraint disputes are won or lost at the level of precision: precision about who is truly a customer, what is truly confidential, what loss is truly measurable, and what interim relief is truly necessary.

Golden Sentence
Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia ([Insert Case Name]), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

---

Original Case File:

👉 Can’t see the full document?
Click here to download the original judgment document.