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NSW Possible Breach of Non-Complete Clause - Will Australian Court Enforce Foreign Judgement?

Discussion in 'Employment Law Forum' started by AustralianResident, 22 October 2015.

  1. AustralianResident

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    I am seeking help as to whether I may be exposed to an injunction that could potentially be issued in the State of New York against me (personally). I signed a NDA accepting that it is governed by State of New York law, and that NY state city and county courts would have jurisdiction and adjudicate.

    I may be in breach of a non-compete clause in that NDA, which was issued to me by the business I contract to, whose head office is in NYC. The NDA states clearly that any breach would not require monetary damages. Rather, an injunction would be sought to restrain me from such breach.

    I am not and never have been a US citizen. I am an Australian permanent resident. I have never worked in the US. The relationship I have with the business is that of independent contractor. I am not an employee (they have no business entity in Australia). I provide services to them from a home office in Australia.

    The breach may come about due to me accepting an offer of employment by a direct competitor (who do have an Australian business entity).

    The question is not whether I can contest the non-compete clause. The question is, assuming that they successfully prove that I have breached the clause in a New York Court - would an Australian Court recognise and enforce that judgement in Australia, preventing me from taking the offer of employment?
     
  2. Therese

    Therese Well-Known Member

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    Hi AustralianResident,

    My understanding is that the recent decision of Pearson v HRX Holdings Pty Ltd in 2012 demonstrates that non-compete clauses can be upheld globally.

    However in your situation as you were an independent contractor I am not sure if that changes anything.

    I would suggest that you get in contact with a lawyer or even legal aid to find out what your options are.

    Get Connected with the Right Lawyer for You
     
  3. AustralianResident

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    Thanks for the reply. Do you happen to know if the employer (HRX) were "in business" in Australia (i.e. had an entity) and had the contract drawn up under Australian Law?
     
  4. Therese

    Therese Well-Known Member

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    No worries.

    It looks like an Australian company.
     
  5. AustralianResident

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    Cool. That actually gives me confidence. My mob are not in Aus. Contract and NDA is under US law.
     

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