Michael Trim appeared for the respondent / cross-applicant, instructed by Carter Newell Lawyers.
The respondent had been a senior executive employed by the applicant. She had resigned and taken up employment with a business that the applicant contended was a competitor.
The applicant had commenced proceedings seeking to enforce a restraint of trade clause. It ultimately abandoned that case (after unsuccessfully seeking to amend close to trial dates) and was ordered to pay the costs of that part of the case and another part of the claim which concerned an alleged implied notice period which was also abandoned on the first day of an adjourned trial.
The remaining part of the case concerned a cross-claim for damages for breach of an item of an employment contract which required payment of a profit share to the respondent. The main issue was whether the respondent was entitled to be paid a profit share pursuant to the employment contract.
The Court upheld the respondent’s cross-claim, noting concessions in cross-examination and finding that the respondent met the gates to triggering the profit share arrangement to which the parties had agreed in the employment contract. The Court found that the respondent was thus entitled to the profit share; this was not a matter within any discretion on the part of the applicant.
The judgment can be read by clicking here
