A former employee's fiduciary duty of confidentiality continues post-employment; however, broad orders restraining competition may violate restraint of trade principles under the Contracts Act.

JUDGMENT

Anand Ponnudurai JC:

(Enclosure 3 - Injunction)

Introduction

[1] The Plaintiff commenced this action against 6 Defendants. The 1st Defendant ("D1") was a former employee and Director who had subsequently incorporated the 2nd Defendant ("D2") which the Plaintiff pleads is in competition with it and that D1 had breached his fiduciary duties by attempting to solicit its customers as well as inducing the Plaintiff's sales team to resign and join D2.

[2] Whilst D1 was the majority shareholder and a Director of D2, it is pleaded that the 3rd- 4th, 5th and 6th Defendants ("D3, D4, D5 and D6") are the other shareholders of D2 with D3 being the only other Director of D2 besides D1.

[3] Simultaneously with the filing of its Writ and Statement of Claim, the Plaintiff had filed an application in encl 3 seeking the following injunctive relief:

"1. an injunction to restrain the 1st to 6th Defendants whether acting by themselves, their directors, officers, servants or agents or any of them or otherwise howsoever:- as regards confidential information of a confidential, trade secret and/or proprietary character and developed by the Plaintiff, either alone or with others and pertaining to the Plaintiff's trade and business including information relating to Plaintiff's products. Customers, suppliers, pricing methods, historical, current and projected financial information, marketing information, technical data and know-how, confidential evaluations of technical and business information in the public domain ("Confidential Information") from divulging, using or in any way dealing including but not limited to parting with possession, custody or control or otherwise of the Confidential Information or any articles or materials containing Confidential Information;

1.1 from obtaining a business advantage belonging to the Plaintiff and competing with the Plaintiff in the business including but not limited to the following:

1.1.1 distributing, selling or in any way trading and/or dealing with precious metals and/or gold bullion trading traded by the Plaintiff ("Plaintiff's Products") including but not limited to:

(a) Scrap gold bars;

(b) Cast gold bars; and

(c) Minted gold bars.

1.1.2 soliciting, canvassing or enticing orders for the Plaintiff's Products and/or services from any party including without limitation the customers of the Plaintiff or persons with whom the Plaintiff has dealings or otherwise dealing with any such customer or person for the sale of products which are the same as and/or similar to the Plaintiff's Products;"

[4] The said application was heard inter-partes whereby all 6 Defendants were represented by the same solicitors who opposed the application.

[5] Upon considering the facts of the case and upon hearing submissions, I had on 20 May 2021 partly allowed encl 3 whereby I had only made an order in relation to the some of the relief prayed for ie in relation to the Defendants being injuncted from using the Plaintiff's confidential information and to restrain the Defendants from soliciting, canvassing or enticing orders from any of the Plaintiff's customers and/or from taking active steps to solicit, canvas or entice services or to obtain business from any of the Plaintiff's customers that were customers or suppliers as at October 2020. Such injunctions were to be in place pending final disposal of the suit.

[6] I did not accede to the Plaintiff's application for an injunction to be issued against the Defendants as prayed for in para 1.1.1 above which, in my view, effectively sought to restrict the Defendants from distributing, selling or trading with precious metal and/or gold bullion.

[7] Whilst the Defendants did not appeal against my order of 20 May 2021, the Plaintiff had filed a Notice of Appeal only on 30 August 2021 against my decision. Although the Notice of Appeal states that the Plaintiff "merayu terhadap keseluruhan keputusan" it proceeds to state that "Kandungan 3 adalah dibenarkan setakat satu injunksi...". I am therefore ass