Federal Court of Australia

3D Access Pty Ltd v Buzasi [2025] FCA 1105

ORDERS

THE COURT ORDERS THAT:

1.    Save insofar as it concerns an application for a freezing order against Taylah Jai Buzasi, the applicants’ amended interlocutory application dated 8 September 2025 be dismissed.

2.    The hearing of the applicants’ amended interlocutory application dated 8 September 2025, insofar as it concerns an application for a freezing order against Taylah Jai Buzasi, be adjourned to 9.30am on Thursday, 11 September 2025.

3.    Costs be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

1    By an amended interlocutory application dated 8 September 2025 (notice of which was given to the respondents on 31 August 2025), the applicants move the court for interlocutory relief and freezing orders against the respondents and a related party. Such relief pertains to a business that the respondents have set up that is said to be operating in competition with the applicants and in breach of restraints of trade by which some of the respondents are bound.

2    For the reasons that follow, the application—insofar as it seeks relief against the respondents—should and will be dismissed. It will be necessary to schedule a further hearing to determine the relief sought against the related party.

Background

3    The first applicant (“3D Access”) is in the business of disability access consulting in the built environment. It is one part of a broader building consultancy group of companies known as “DDEG”. The second and fourth applicants, Mr Dobbs and Mr Doherty, started 3D Access as owner-directors in mid- 2017. Less than a year thereafter, Mr Dobbs and Mr Doherty brought on the first respondent, Mr Buzasi, as its associate director.

4    The terms of Mr Buzasi’s employment were recorded in a contract of employment dated 19 April 2018. Clause 21 of that contract is what is commonly known as a post-employment restraint. By its terms, Mr Buzasi relevantly covenanted, on the cessation of his employment, not to:

(a)    “solicit business from any client”; or

(b)    “interfere with the relationship between [3D Access] and its Clients”.

5    There is no geographic limitation to that stricture. As to duration, it adopted a familiar “cascading” mechanism, creating separate and severable obligations for periods of up to one year.

6    On 31 December 2019, Mr Buzasi was elevated to Managing Director of 3D Access; and, on 28 May 2020, he acquired 40% of the shares in the company.

7    On 16 February 2022, 3D Access, its owner-directors and the corporate vehicles through which they held their shares entered into two contracts. There is a dispute as to who or what it was that led to the making of those agreements, but little if anything turns on that.

8    By the second instrument (the “Exit Agreement”), the directors established (amongst other things) a procedure by which any one of them might, at some later date, voluntarily depart from the business, and the terms and conditions upon which that would occur.

9    That agreement afforded to a departing shareholder a “sell option” in respect of his equity (either owned personally or via his corporate nominee). If a shareholder were to leave of his own accord, the continuing shareholders had a right of first refusal to purchase his shares for 80% of their market value. That would be on the terms that the continuing shareholders make annual payments—being 70% of the percentage of equity held by the departing shareholder multiplied by the EBITDA from the prior financial year—until the purchase price is paid in full. All of that would unfold on the service of particular notices by the departing shareholder.

10    Assuming that that all came to pass—and “in consideration of the continuing proprietors paying and agreeing to continue to the payments of the purchase price”—the departing shareholder would then be bound by a restraint of trade set out in cl 4.10 of the Exit Agreement. That clause prevents the departing shareholder from competing with 3D Access “directly or indirectly”, including by “canvassing, soliciting, counselling, procuring, inducing, encouraging, enticing customers away from [3D Access]”. That restriction purports to have effect throughout Australia and for two years from the date of transfer.

11    On 28 June 2024, after the birth of his daughter, Mr Buzasi commenced a period of parental leave. There is evidence before the court about the complications attending that birth, and the challenges faced by Mr Buzasi and his family in the weeks and months that followed. It needn’t be rehearsed here. Mr Buzasi was uncontactable on parental leave for three weeks and thereafter took some annual leave, with the effect that he worked on a part-time basis upon his return.

12    Over that period, Mr Paul Mulholland stepped in to fill Mr Buzasi’s role, or at least act with him as Co-Managing Director of 3D Access. While Mr Mulholland, was at that time, involved in the broader DDEG business, he did not figure (at least not in any permanent or ongoing sense) in the ownership or management of 3D Access. Since late 2023, however, he had expressed interest in acquiring a shareholding within the business. In July 2024, a consensus of sorts was reached amongst the existing shareholders that Mr Mulholland could acquire 15% of the equity in 3D Access (5% from each of the then-directors), for which he would pay amounts totalling $562,797.05. Privately, however, Mr Mulholland felt that the business was not being run well by Mr Buzasi and, whether for that reason or some other, the transaction never completed. It is nevertheless the case that, if that agreed price were applied to all shares in the business, the equity in 3D Access would have been worth $3.75 million.

13    Those negotiations doubtlessly laid the foundations for an approach that Mr Buzasi made to Mr Mulholland on his return from parental leave in mid-2024. Mr Buzasi had, at that point, resolved to leave 3D Access. Mr Mulholland, Mr Dobbs and Mr Doherty had been concerned by Mr Buzasi’s lack of engagement in the period (by all accounts, the difficult period) after he became a father and he was feeling pressure to return to work in the office. Wanting to depart the business quickly, Mr Buzasi offered to sell Mr Mulholland his entire 40% shareholding.

14    On 26 August 2024, Mr Buzasi provided a letter of resignation to his co-directors and Mr Mulholland. He served notices consistent with the terms of the Exit Agreement. Those notices set a price of $675,356.64 for his shareholding.

15    That led the then-directors and Mr Mulholland to execute, on 13 September 2024, a “Share Purchase Agreement of 3D Access Pty Ltd” (the “SP Agreement”). That agreement facilitated the sale by Mr Buzasi of his shares for the price set out in the notices, such that Mr Dobbs and Mr Doherty each paid $56,279.72 for an additional 3.33% of the 3D Access shareholding; and Mr Mulholland paid $572,797.20 for 33.33% of the shareholding. The closing of the sale, including full payment of the purchase price, was to be effected on or before 25 September 2024.

16    The SP Agreement is significant in at least two senses. First, although it made no express reference to the Exit Agreement, it contained a clause stipulating that it “constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, whether written or oral, relating to the subject matter thereof”. Second, it did not contain any restraint of trade.

17    In its initial form, the SP Agreement contained some errors that, for present purposes, are of no moment. They were corrected via the execution of a further instrument later in September 2024. On 26 September 2024, Mr Buzasi worked his last day with 3D Access and his association with the business was brought to an end.

18    On 30 October 2024, Mr Buzasi registered a new business with the Australian Securities and Investments Commission (“ASIC”), being the third respondent (“Articulate Access”). On Mr Buzasi’s account, Articulate Access was initially registered as a vehicle through which he might maintain his professional indemnity insurance. That narrative accords with the evidence such as it presently is, although there is no occasion now to make any finding in that regard.

19    Articulate Access lay dormant until about March 2025. The financial records of that business reveal that it did not make any sales prior to 1 February 2025 and that it had earned only a very small amount ($3,100.00) as at 31 March 2025.

20    Since then, it has commenced trading. Articulate Access’s offering includes providing compliance advice about disability access requirements under volume two of the Building Code of Australia. To that extent, its work overlaps with that of 3D Access. However, Articulate Access also advises on the broader requirements of that code, which involves work that is not within 3D Access’s purview.

21    In March 2025, 3D Access got wind of Mr Buzasi’s new venture after one of its employees saw him at an industry “webinar”. Mr Mulholland later located the business online. It was noted that the “experience” section of Articulate Access’s website listed projects that had been performed by DDEG. In mid-March, Mr Buzasi posted about the business on LinkedIn. Later that month, the applicants obtained ASIC records establishing that Mr Buzasi was its owner and director, and commenced making enquiries with clients and building surveyors (from whom 3D Access typically acquires its work) to ascertain if Articulate Access was performing work for them.

22    The results of their enquiries are in evidence before the court: Four companies that either directly engage or refer work to 3D Access reported having had contact with Mr Buzasi. It suffices to say that there is no direct evidence that Articulate Access has done work for—much less has solicited work from—clients of 3D Access.

23    The evidence nonetheless discloses that 3D Access’s business has suffered a downturn. At the time that Mr Buzasi left the business, it had approximately 90 active jobs, which, by January 2025, had reduced to around 30. In the months of November 2024 to March 2025, 3D Access’s profits were either non-existent or marginal. Although the evidence does not disclose its profits in the months and years prior to Mr Buzasi’s departure, that was said to be unusual.

24    On 27 March 2025, 3D Access instructed its lawyers to write to Mr Buzasi, alleging that he had breached various common law and statutory obligations; and seeking that, by 3 April 2025, he proffer an undertaking that, amongst other things, he would cease operating Articulate Access and take down its website. On 9 April 2025, Mr Buzasi’s lawyers wrote back, denying that the restraints in his employment agreement and the Exit Agreement were reasonable and necessary, denying that he was breaching them, and refuting that any of his conduct had caused 3D Access any loss or damage. At some point, Mr Buzasi did deactivate his website.

25    The directors of 3D Access thereafter intended to bring a claim against Mr Buzasi. They formed the view that the boutique law firm that had prepared the 27 March 2025 letter of demand was not well suited for that litigation and instead engaged a larger commercial firm for that purpose. As it transpired, the lawyer acting at that larger firm resigned a week after it was retained and, so 3D Access complains, the firm did not then move promptly to appoint a new solicitor to the file. In mid-June 2024, with no proceeding commenced as per their instructions, the directors retained the applicants’ current solicitors.

26    It was some two months after that time, on 19 August 2025, that the current application was filed. It was accompanied by an interlocutory application, which asserted a right to the injunctive relief that is the subject (or a subject) of these reasons.

CURRENT APPLICATION

27    In its initial form, the applicants’ interlocutory application moved for relief in the form of an interlocutory injunction to enforce the terms of the Exit Agreement. It was supported by four affidavits: three affirmed by the new directors of 3D Access, and one affirmed by a consultant at the business, Mr Kah Yein Moo.

28    On Sunday, 31 August 2025, the applicants served a solicitor’s affidavit that, amongst other things, annexed what was then a proposed amended interlocutory application. By that annexure, the applicants foreshadowed that they would also seek relief in the nature of freezing orders directed at the respondents and Mr Buzasi’s wife, Ms Taylah Buzasi. That further relief was premised upon the applicants’ discovery that Mr Buzasi’s family home had, on 4 June 2025, been transferred into Ms Buzasi’s name alone. That asset is unencumbered and its equity was thought to represent a large portion of Mr Buzasi’s personal wealth. The applicants therefore apprehended that Mr Buzasi was (or might have been) offloading his assets.

29    The matter came before me as the Melbourne registry’s duty judge on Monday, 1 September 2025. At that juncture, none of the material referred to above had been served upon Ms Buzasi. The applicants sought to proceed ex parte against her but I indicated that I was not minded to grant any ex parte relief. Instead, I indicated that the matter would be scheduled for a further hearing on Tuesday, 2 September 2025.

30    As it happened, that further listing was necessary in any event, as I fell ill to a point that I was unable to complete the hearing. With the parties’ forbearance (for which I again record my gratitude), the matter was adjourned to Tuesday, 2 September 2025.

31    When the matter resumed on Tuesday, 2 September 2025, it remained that Ms Buzasi was yet to be served and the applicants again pressed for ex parte relief as against her. I did not indulge that course. The applicants were instructed to serve Ms Buzasi and that aspect of the proposed amended application was adjourned. My decision in respect of the balance of it was reserved.

32    I had hoped to decide the matter (or so much of it that did not pertain to Ms Buzasi) within a matter of days but ill health intervened yet further. On Thursday, 4 September 2025, the parties were informed of that reality and, on the following day, the hearing of the one remaining aspect of the matter (involving Ms Buzasi) was rescheduled to Thursday, 11 September 2025.

33    For the reasons that follow, I am not satisfied that there is occasion to grant the interlocutory injunctive relief for which the applicants move, nor the freezing order that is sought as against the respondents. As has already been noted, it will be necessary otherwise for the matter to proceed for further hearing as to the granting of a freezing order as against Ms Buzasi.

injunctive relief

Principles

34    There is no dispute about the court’s power to grant interlocutory injunctive relief, nor the circumstances in which that power might validly be exercised. In Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union [2019] FCA 1265, I summarised the principles governing the identification of those circumstances as follows (at [38]-[41]):

…[the applicant] must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).

When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67] (Dowsett, Foster and Yates JJ).

In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472):

…an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

An applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333, 339 (Greenwood J).

35    Central to establishing a prima facie case in this matter (and others like it) are the uncontroversial principles that regulate the enforcement of restraint covenants of the kind found in the employment agreement and the Exit Agreement.

36    The starting position, notoriously articulated in Just Group Ltd v Peck (2016) 344 ALR 162, 173 [30] (Beach and Ferguson JJA and Riordan AJA) (“Just Group”), is that a clause that operates or purports to operate in restraint of trade “is presumed to be void as contrary to public policy”. That presumption may be rebutted if the circumstances demonstrate that the covenant is reasonable as between the parties, and not unreasonable in the public interest: Just Group, 174 [31]. To demonstrate the former, the enforcing party must show that the clause goes no further than necessary to protect its legitimate interests.

37    The breadth of such legitimate interests may depend on the relationship between the parties. In the employment context, restraints that limit competition per se are not enforceable: Just Group, 174 [32] (Beach and Ferguson JJA and Riordan AJA). A covenant of that nature must be tethered to, for example, particular clients with which the employee worked: Freedom Finance Accounting Pty Ltd v Goldstein [2017] VSC 179, [42] (McDonald J) (“Freedom Finance”), citing Birdanco Nominees Pty Ltd v Money (2012) 36 VR 341, 357-8 [80]-[85] (Robson AJA).

38    In the commercial sphere—where a restrictive covenant is agreed in the context of a contract for the sale of a business or shares—the hurdle is easier to clear, and competitive conduct may, of itself, legitimately be restrained: Southern Cross Computer Systems Pty Ltd v Palmer (No 2) [2017] VSC 460, [30] (McDonald J) and the authorities there referred to.

39    The reasonableness of a restraint is assessed in respect of the time at which it was agreed. In the case of a non-compete clause, it must protect from competition against a business as it stood at the time that the restraint was agreed: British Reinforced Concrete Co v Schelff [1921] 2 Ch 563, 574 (Younger LJ), applied in Freedom Finance, [24] (McDonald J).

Prima facie case for injunctive relief

40    There is no real dispute that Articulate Access is operating in competition—or at least partly in competition—with 3D Access. In this respect, the evidence indicates that it might also be doing other things, including things that 3D Access does not now do (or never did).

41    Whether it is providing services to former clients of 3D Access is less clear. Plainly, the applicants’ evidence makes clear that Mr Buzasi has interacted with certain 3D Access clients and/or the building surveyors who commonly refer them. Equally clear, however, is that: first, the clients that the applicants have identified contacted Mr Buzasi (rather than the other way around); and, second, nothing ever came of those approaches (in the sense that Articulate Access has not performed any work for those clients).

42    3D Access maintains, nonetheless, that Mr Buzasi must be performing work for some or various of its former clients, as that is the most likely explanation for the decline in custom that it has experienced since his departure (see above, [23]).

43    As has been observed, there is no direct evidence that Articulate Access has performed any work for former or current clients of 3D Access. It seems unlikely that the downturn that 3D Access experienced between October 2024 and March 2025 can be attributed to Articulate Access. The latter appears not meaningfully to have commenced trading until later than that. Other potential explanations for 3D Access’s reduced business emerge from the evidence. Cumulatively (and for the purposes of assessing the existence of a prima facie case), they weigh heavily against the drawing of the inference that the applicants invite the court to draw.

44    Mr Mulholland describes 3D Access as being poorly run by Mr Buzasi and attests that he (Mr Buzasi) made some decisions before he left that Mr Mulholland viewed as “bad”. Even if that were not accepted, 3D Access appears to be (and to have been) a small business that faced a period of disruption with Mr Buzasi’s leave arrangements and subsequent departure. It needn’t be the case that clients lost in those circumstances fled to Mr Buzasi’s new business (particularly, given that it appears not to have commenced operating until many months later).

45    Further, in May 2025, 3D Access appears to have ceased providing a service that, while Mr Buzasi was director, is said to have contributed 10 to 15% of the business’s income. That service involved the provision of design advice and certification services for residences required to be designed to the Specialist Disability Accommodation Design Standard. Again, there is an unhelpful (and unnecessary) degree of speculation involved in assessing the extent to which that might explain 3D Access’s commercial deterioration; but it assists in highlighting the difficulty that inheres in the applicants’ attempts to sheet it home solely or predominantly to the respondents. This is particularly so in circumstances where Mr Buzasi denies doing any such work until after 3D Access had ceased offering that service.

46    In a similar vein, Mr Buzasi was keen to impress upon the court the fact that a key holder of client relationships at 3D Access, Mr Moo, is currently seconded to Queensland to set up its operations there. Mr Buzasi considers that, during his tenure, Mr Moo was responsible for generating about one fifth of the business’s revenue. It is not clear when that secondment started, or if there was an effective handover; but it is at least plausible that that, too, might stand as an explanation, or part explanation, for the diminution of 3D Access’s work.

47    On the evidence as it presently stands, it is not realistic to say that the court might infer that Mr Buzasi is working for clients or former clients of 3D Access, much less that he has solicited work from them. That would likely be fatal to an injunction enforcing the restraint in cl 21 of the employment agreement. In any event, even if it is wholly enforceable (a matter upon which it is unnecessary to venture any opinion), it is very shortly due to expire and the applicants properly concede that an injunction to enforce it would be inutile.

48    There is, by contrast, plainly enough on the evidence to hold, on a prima facie case basis, that Mr Buzasi is conducting himself in breach of cl 4.10 of the Exit Agreement. That is the restraint upon which the applicants rely and upon which some focus is necessary.

49    The question to be answered is whether or to what extent there is a prima facie case that cl 4.10 is enforceable.

50    The respondents identified two central reasons why the court should proceed, for the purpose of assessing the existence of a prima facie case, on the basis that it is not. The first is that the Exit Agreement was superseded by the terms of the SP Agreement. The second is because the clause extends beyond what is reasonably necessary to protect the legitimate interests that 3D Access might reasonably wish to protect.

Was the exit agreement superseded?

51    The evidence makes clear that it was Mr Buzasi who initiated his departure from 3D Access; and that he did so consistently with the terms of the Exit Agreement. He gave notice in accordance with its terms and that notice identified the value of his shareholding.

52    It was determined that Mr Buzasi’s shareholding would be sold predominantly to Mr Mulholland, who was not a party to the Exit Agreement. The SP Agreement was drawn up (perhaps by the parties themselves) and then, later, amended by deed. The shareholding was sold for the same amount that Mr Buzasi had nominated in the notice that he had given under the Exit Agreement.

53    Some suggestion is made by the respondents that that valuation was below the market value of Mr Buzasi’s shareholding, or indeed, the slightly reduced value to which the Exit Agreement entitled him in circumstances involving his voluntary departure. On a similar note—and perhaps even by way of explanation for that reduced price—the SP Agreement did not give effect to the staggered payment structure pursuant to which the Exit Agreement contemplated that a departing shareholder would be paid. I am not persuaded that much should be made of either reality (assuming that they are ultimately made good on the evidence at trial).

54    The SP Agreement was, plainly by its nature, an agreement about the transfer of title in shares. The Exit Agreement, meanwhile and on its face, was an agreement about how principals (including Mr Buzasi) might cease their association with 3D Access. Amongst other things, it conferred options in respect of shareholdings, and was directed to the mechanics of how title in those shareholdings would thereafter transfer.

55    At this juncture, it isn’t necessary to make any definitive findings about the effect of the SP Agreement and its “entire agreement” clause. I accept that there is a prima facie case that it does not operate so as to supersede the Exit Agreement (and its restraint), in that it was intended to operate only as ancillary to the mode of departure for which the Exit Agreement provided. Nonetheless, I consider that prima facie case to be weak. On its face, the SP Agreement operates to denude of force prior agreements that deal with equivalent subject matters. The Exit Agreement, insofar as it contemplates (as the SP Agreement plainly does) the transfer of title in shareholdings, would appear to be such an agreement. It is not possible—and much less is it necessary at this juncture—to speculate about why the parties were minded to make such significant changes to the contractual ties that bound them; but that is precisely what they appear to have done. To the extent that it exists, the case holding to the contrary strikes me as weak.

56    In saying so, I should not wish to suggest that there is no possibility that the applicants might succeed at trial. All the same, I consider that the existence of the SP Agreement significantly weakens the applicants’ argument that cl 4.10 of the Exit Agreement operates and is enforceable as against the respondents (or, at least, Mr Buzasi and the second respondent, his corporate nominee); and that that assessment is apt to guide the exercise of the court’s discretion to grant interlocutory injunctive relief.

Does cl 4.10 extend impermissibly beyond what might be enforced?

57    The respondents submit that cl 4.10 of the Exit Agreement is void on public policy grounds, in that it extends, non-severably, beyond the protection of legitimate commercial interests.

58    Key to that submission is the Australia-wide application of the clause. The respondents say that, when the Exit Agreement was created, 3D Access was not a national business but, rather, one that operated only in Victoria.

59    The evidence as to the scope of 3D Access’s operations suggests that:

(1)    at the time that the Exit Agreement was executed, it marketed itself as “Melbourne-based”;

(2)    its only office at that time was in Melbourne;

(3)    Mr Moo is currently on secondment “helping to set up 3D Access operations in Queensland”.

60    There is at least some force to the respondents’ argument. Like any submission that rests upon whether or not something is “reasonable”, the suggestion that the applicants cannot establish a prima facie case that cl 4.10 of the Exit Agreement is enforceable is unrealistic. For present purposes, it must be accepted that such a prima facie case here exists. Nonetheless, such evidence as there presently is about the nature and scope of the 3D Access business (as it was when the Exit Agreement was executed) appears to tend against the conclusion that it might legitimately have sought to be protected against competition in markets beyond Victoria. That should stand as a serious challenge as to the applicants’ prospects of proving their case at trial.

61    Again, then, such prima facie case as I accept exists cannot be described as especially strong.

Conclusion

62    On the evidence as it presently stands (albeit without the benefit of challenge), the applicants have established a prima case that the respondents (or, perhaps, Mr Buzasi and the second respondent) have conducted and continue to conduct themselves in breach of a binding and enforceable restraint (namely, cl 4.10 of the Exit Agreement). Such case as there is in that regard is, in my estimate, quite weak. At this juncture, the better view appears to be that the Exit Agreement was superseded and I have serious reservations that cl 4.10 is not void on public policy grounds.

63    I should also mention here the additional contention that the applicants advance about the respondents having retained and used their confidential information (or, at any event, some confidential information). It is fair to say that that wasn’t put as forcefully as the submissions that were advanced about the enforcement of the restrictive covenant; but nor was it abandoned. It can swiftly be addressed.

64    I do not accept that the evidence discloses a prima facie case that the respondents (or any of them) have wrongly retained or used any confidential information, including business or marketing plans, client and supplier lists, client contact information, pricing information, sales history, or precedent consulting reports.

65    The submissions to the contrary do not rise beyond bald speculation and, in any event, collide headlong with Mr Buzasi’s positive denials. The applicants seek to establish the prima facie case upon which they move by inviting the court to infer that, having had access to material of the kinds described above, Mr Buzasi should be understood to have deployed his knowledge of that material for the benefit of Articulate Access.

66    There was, perhaps, a further dimension to the contention. Mr Buzasi’s evidence included documentary material that, the applicants suggest, reflects his having some ongoing level of access to its information technology or to information that it has shared with clients. Again (and with respect), that submission did not extend beyond assertion.

67    No doubt Mr Buzasi has, in his new and current endeavour, sought to apply skills and knowledge that were developed during his tenure at 3D Access. Doing so does not, of itself, involve the improper retention or use of any confidential information. Absent some suggestion that Mr Buzasi has taken something that he ought not have, or has sought to deploy knowledge that rises to the level of a trade secret, I do not consider there to be much to the applicants’ contention.

68    I do not accept that there is a prospect that the court might properly infer from the evidence as it presently stands that the respondents (or any of them) have improperly retained or used any of the applicants’ confidential information. I do not consider that the applicants have established a prima facie case in that regard.

Balance of convenience

69    The applicants submit that the balance of convenience favours injunctive relief because 3D Access has suffered a considerable commercial downturn, which they attribute to the respondents’ conduct in breach of cl 4.10 of the Exit Agreement. I have already addressed the considerable doubt that attends the contention that the former is a product of the latter. Nothing further need be said of that and what follows assumes, despite that doubt, that the connection exists.

70    No submissions were advanced about why damages might not be an adequate way of remedying the downturn that has occurred (and, presumably, will continue) but it is easy to see why they might not be. By acting in contravention of cl 4.10 of the Exit Agreement (if that is what they are doing), the respondents should be understood to be engaged in the cultivation of commercial contacts and practices that they are not at liberty to cultivate; and that their doing so might visit upon the applicants consequences that cannot easily be calculated in dollar terms. I accept that that is a consideration relevant to the court’s assessment of whether the balance of convenience favours the granting of interlocutory injunctive relief.

71    Against that is the position of Mr Buzasi. His daughter’s short life to date has not been without complication and his wife does not work. He himself works only around 16 hours per week in his new business while he cares for his family. He and his wife intend to have another child; and their doing so is likely to require a financial investment in medical treatment. There is no evidence as to his current financial position (except as to the equity in his family home and two encumbered investment properties) but it is clear that injunctive relief would impact negatively upon it.

72    If that were all that the evidence disclosed, I would consider that the balance of convenience is finely balanced. In light of the related nature of the enquiries, I may, in that universe, have been minded to accept that interlocutory injunctive relief was appropriate.

73    Presently, however, the issue of delay looms large. I have already mapped out the relevant chronology. After sending Mr Buzasi a letter of demand in March, it was not until August that the present application was commenced. Some attempt to contextualise that delay has been offered and considered (see above, [25]). Nonetheless, I consider that it operates significantly against the applicants in their present quest.

74    It is axiomatic that interlocutory injunctive relief must always be sought urgently. In that regard, the respondents’ submissions recorded (references omitted):

There are many statements of authority to the effect that an application for an interlocutory injunction should be made promptly. For example, in Capgemini US v Case [2004] NSWSC 674, Campbell J stated the following at [40] (citations omitted):

If interlocutory relief is to be sought, it should always be sought promptly. The court is always entitled to use, as a litmus test of the seriousness of the infringement of a plaintiff’s rights which is occurring, how fast the plaintiff reacts to the infringement of its rights. It is not only as an example of the equitable doctrine of laches that delay is relevant on an application for an interlocutory injunction; it is also an admission by conduct about how serious the infringement of the plaintiff’s rights is. Thus, it is a matter which goes to the balance of convenience and not merely to the question of whether there is a serious question to be tried, which might be met by a defence of laches at the trial.

In the present case, the applicants complain of alleged breaches that they say they became aware of in March 2025, five months ago. The applicants’ delay in seeking interlocutory injunctive relief is an admission by conduct that any infringement upon their rights has been insignificant. No evidence of loss and damage has been adduced.

75    I gratefully adopt that statement of principle. Even if I were to accept that the delay of some three months in retaining their current solicitors was due to circumstances outside of the applicants’ control, a further two months passed before proceedings were filed. The applicants say that they required further time to collect evidence about the respondents’ breaches from third parties and then to reduce their instructions to affidavit form. They maintain that the significance of the respondents’ conduct intensified after their initial letter of demand, in that Mr Buzasi’s business became more profitable between March and August (a fact to which, I note, they were only alerted as a result of the present application).

76    Those explanations ignore the character of the application that the applicants press. Articulate Access is, as I have accepted, competing commercially with 3D Access. On the applicants’ case (although not necessarily in reality), it has been since at least January (and possibly before). The applicants have known that since March.

77    In Scyne Business Services Pty Ltd v Heaney (2024) 329 IR 461 (Parker J), the Supreme Court of New South Wales declined to grant interlocutory injunctive relief to enforce a contractual restraint. It accepted that the circumstances otherwise called for relief of that nature but it was declined because the application for that relief had been delayed by three months.

78    Even accepting that some difficulties arose with the retention of lawyers, I consider it plain that the applicants have not prosecuted the case for interlocutory relief with appropriate urgency. In circumstances where they ask the court to infer that significant damage has been sustained by the respondents’ conduct, the court is entitled, if not bound, to assess where the balance of convenience lies by reference to that apparent want of urgency.

79    I consider that the balance of convenience warrants against the granting of interlocutory injunctive relief.

Disposition

80    The applicants’ application for urgent interlocutory injunctive relief rests upon a prima facie case that, although existent, is weak. The balance of convenience tends against the granting of that relief. Satisfied of those realities, the invitation extended to the court to grant that relief must be declined.

freezing orders

Principles

81    The circumstances in which the court might grant a freezing order are similarly uncontroversial. A freezing order is generally made to prevent some apparent risk that a respondent intends to frustrate court processes by dissipating assets. This generally requires evidence of a threat to offload assets, or otherwise to put them (or to make an attempt to put them) beyond the reach of any later court judgment. In Zhen v Mo [2008] VSC 300, [22]-[30] (Forrest J), the basic principles governing the grant of the relief were summarised as follows (references omitted):

22    First…a freezing order, by its very nature, is a drastic remedy and a court must exercise a high degree of caution before taking a step which will interfere with a party’s capacity to deal with his or her assets.

23    Second, the order is not designed to provide security for the applicant’s claim. It is solely directed to preserving assets from being dissipated, thereby frustrating the court process.

24    Third, the applicant bears the onus both in satisfying the Court that the order should be continued and in satisfying the Court as to the amount which is to be the subject of the order.

25    Fourth…an order can only be made on the basis of admissible evidence which supports the contentions made by the party seeking the order. Speculation and guesswork is no substitute for either the facts or inferences properly drawn from proved facts.

26    Fifth…before such an order can be made it is necessary that the applicant establish –

(a)    an arguable case against the defendant; and

(b)    that there is a danger that the prospective judgment will be wholly or partly unsatisfied as a result of the defendant’s actions in either removing the assets or disposing or dealing with them so as to diminish their value.

27    Sixth, the balance of convenience must favour the granting of the freezing order.

28    Seventh…there is no set process determining the exact nature of an order. The order will be framed according to the circumstances of the case.

29    Eighth, the applicant must establish with some precision the value of prospective judgment. The order should not unnecessarily tie up a party’s assets and property.

30    Finally, there may be discretionary considerations which militate against the granting of a freezing order, such as delay in bringing the application on before the court or a lack of candour in the materials placed before the court.

82    In respect of Forrest’s J fifth principle, the court may, in circumstances where the arguable case against a respondent involves proof of gross dishonesty, properly infer the threat that the respondent will dissipate assets: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 336 (Meagher J).

Consideration

83    The freezing order that is sought as against the respondents is sought because the applicants are concerned that Mr Buzasi might deal with his assets in a way that might frustrate any success that they have at trial. That concern arises for the following reasons, namely that:

(1)    Mr Buzasi’s conduct—which although not fraudulent is, they say (in light of the restraints by which they maintain that he is bound), properly described as a form of sharp practice—is conduct of the kind from which the court might more readily infer an intention to frustrate;

(2)    in June 2025, Mr Buzasi transferred his family home (then owned jointly with his wife) into the name of his wife alone; and

(3)    Mr Buzasi told his accountants that he was doing so “for risk purposes” because he was working again and wanted “to limit [his] exposure if any issues were ever to occur”.

84    It is convenient to address each of these in turn.

85    Mr Buzasi’s conduct in setting up Articulate Access cannot necessarily be impugned as dishonest, fraudulent or even “sharp”. His explanation for setting up the company in October 2024, supported in at least a limited way by documentary evidence (and contemporaneous records of why it was done), is connected to the maintenance of his registration as a building surveyor and associated professional indemnity insurance.

86    The documentary record from the time makes tolerably clear that Mr Buzasi did not leave 3D Access with any intention to continue working in competition with it. It was not until several months later (at some point between January and March 2025) that Mr Buzasi dipped his toe back into the proverbial water. In circumstances where there was a genuine question about the enforceability (and even the continuing operation) of cl 4.10 of the Exit Agreement, and Mr Buzasi’s position on cl 21 of the employment agreement was that it would at most only be enforceable for six months, nothing about that gives rise to any inference of dishonesty.

87    Bound up in the allegation of dishonesty is Mr Mulholland’s evidence that Mr Buzasi told him before his departure that he would probably retrain as a counsellor. Mr Buzasi rejects that that conversation occurred or that such a path was ever in his contemplation. It doesn’t much matter. Even assuming that the conversation did occur, it wouldn’t necessarily be relevantly dishonest for Mr Buzasi subsequently to choose to continue on his previous career trajectory.

88    In respect of the transfer of the matrimonial house, the applicants’ narrative is that Mr Buzasi took that step in response to their letter of demand. That proposition is attended by significant doubt. The transfer was actioned months after the letter was received, and several weeks after a response to it was sent. There are any number of reasons why ownership in a family home might be structured in a certain way; and equally, why it might be altered. No doubt protection from suit factored as one consideration; but I do not accept that there is a credible suggestion that anything was done specifically to address the circumstances of this matter (accepting, as I must, that the position might change at trial with the benefit of testing).

89    Little (although not nothing) may be made of Mr Buzasi’s stated desire to transfer his interest in his home to his wife “purely for risk purposes”. The arrangement of personal and business affairs in a way that protects personal assets from business risks is commonplace. It is not, of itself, evidence that should be of relevant concern.

90    Freezing orders are drastic and should be reserved for circumstances that call for them. I am not satisfied that the circumstances of this matter are of that kind. The order for which the applicants move would serve as an extreme restriction on Mr Buzasi’s freedom to deal with his assets as he wishes. In circumstances that do not warrant interlocutory injunctive relief, I do not consider that it is appropriate or in the interests of justice to grant the freezing order that the applicants seek.

91    The application for freezing orders against the respondents should and will be dismissed.

disposition

92    Save insofar as concerns the applicants’ application for a freezing order as against Ms Buzasi, the amended interlocutory application should and will be dismissed. That reality may or may not bear upon whether a further hearing (directed to the freezing order that is sought as against Ms Buzasi) is necessary; but, for now (and unless or until the applicants say otherwise), it shall be assumed that it is. That application is scheduled for hearing at 9:30am on Thursday, 11 September 2025.

93    There have, to date, not been any submissions made as to costs. There is no obvious reason why they shouldn’t follow the event but the safer course, for now, is to reserve them. An application for costs, if there is to be one, may be made later and in the usual way.

Associate:

Dated:    9 September 2025

SCHEDULE OF PARTIES