Team Bright Corporation Ltd v. Andiappan Yogananth
Read the full judgment text of HCA 1743/2004 on BabelCite. This High Court CFI judgment was delivered on 20 August 2004.
1. I decline to grant the interlocutory injunction sought. Briefly, my reasons are as set out below.
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HCA001743/2004 HCA 1743/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1743 OF 2004 ____________
____________ Coram: Hon Reyes J in Chambers Date of Hearing: 20 August 2004 Date of Judgment: 20 August 2004 _______________ J U D G M E N T _______________ 1.I decline to grant the interlocutory injunction sought. Briefly, my reasons are as set out below. 2.As a matter of initial impression, I have serious doubts as to whether there is an arguable case that the restraint is reasonable to protect the Plaintiff's legitimate interest. Mr. Shieh SC bases his argument of a legitimate interest on the need to safeguard the Plaintiff's goodwill against loss of customers by reason of the influence exerted by a yoga master. I am not satisfied on the evidence that a yoga master exerts such influence over his students in Hong Kong. Lord Hoffmann in Dawney, Day & Co. Ltd. v. D'Alphen has said that it is "common knowledge" that hairdressers command loyalty from an employer's clients by reason of their skill in cutting and setting hair. I do not believe that there is any such "common knowledge" in relation to Indian yoga masters in Hong Kong. In my view, prima facie, the position of a yoga master cannot be equated to that of a hairdresser. 3.Second, it seems to me that the restrictive clause is greater than is necessary for protecting the interest alleged. I do not think the possibility of the Plaintiff opening more yoga centres during the employment term stipulated in the contract was a fanciful possibility at the time of contracting. But if more centres were opened, the geographical restriction in cl.5(a) could be extensive in its coverage. 4.Nor do I consider that the possibility of the defendant owning shares in a company (public or private) which directly or indirectly operates a yoga centre is fanciful. But I do not see how the proscription against such ownership would protect the Plaintiff's asserted legitimate interest. 5.I see no relationship between the 3 mile radius and the legitimate interest claimed by the Plaintiff. It seems to me that the radius is far too extensive and arbitrary. 6.I also accept Mr Kat's argument that the 1 year restriction in relation to the total period of the employment term (24 months) seems excessive. 7.I do not think that any of the difficulties with the restrictive covenant which I have just highlighted can be dealt with by merely excising particular terms from cl.5(a). 8.Accordingly, I dismiss the Plaintiff's application for an interim injunction. 9.I am conscious that the injunction application before me is an interlocutory hearing. I do not think that it is appropriate for me therefore to deal further with the merits of the case. I should not, however, be taken by my decision today to have conclusively determined the issue of whether a final injunction should or should not be granted at the end of the trial of this action. 10.I shall now hear the parties on costs and consequential orders.
Representation: Mr Paul Shieh, SC, instructed by Messrs Minter Ellison, for the Plaintiff Mr Nigel Kat and Miss Phyllis Loh, instructed by Messrs Herbert Smith, for the Defendant |