Federal Court of Australia

Australian Property Scout Holdings Pty Ltd v Titus (No 2) [2025] FCA 1154

ORDERS

UPON THE UNDERTAKING OF THE APPLICANTS:

1.    To submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or any continuation (with or without variation) of the order.

2.    To pay the compensation referred to in paragraph 1 above to the person there referred to.

THE COURT NOTES THAT:

3.    For the purposes of these orders, the following terms are defined as follows:

(a)    APS means Australian Property Scout Pty Ltd;

(b)    APS Documents means the documents particularised in paragraph 17 of the Further Amended Statement of Claim;

(c)    APS Payroll means APS Group Payroll Pty Ltd;

(d)    Confidential Operating Areas are the names of Local Government Areas (LGAs) that APS has identified as growth areas which are referred to in the Confidential Annexure A to the Further Amended Statement of Claim (Confidential Annexure A).

(e)    Dealt means the completion of work, including: the provision of details and information with respect to a potential property, acting as an advocate, communicated with them (either in writing or verbally) regarding their interest in and or subsequent purchase of, the property (irrespective of whether the purchase completed or not).

(f)    Supplier means any person or organisation who supplied goods or services to APS or APS Payroll in exchange for payment of $500 or more in the period 5 April 2024 to 5 April 2025.

4.    The respondents have consented to Orders 5 to 9 without admission.

THE COURT ORDERS THAT:

5.    From the date of this order until judgment, or earlier determination of this proceeding, the respondents will keep accounts recording each of their clients, the address of any property or properties purchased for them, and the fees received from them and the expenses incurred in providing services to them.

6.    From the date of this order until judgment, or the earlier determination of this proceeding, the first respondent be restrained from, whether by himself, his companies, officers, servants, employees or agents or otherwise, directly or indirectly disclosing or using the APS Documents or any parts thereof.

7.    From the date of this order until judgment or the earlier determination of this proceeding, the second respondent be restrained from, whether by its directors, officers, servants, employees, agents or otherwise, directly or indirectly disclosing or using the APS Documents or any parts thereof.

8.    From the date of this order until judgment, or the earlier determination of this proceeding, the first respondent be restrained from, whether by himself, his companies, officers, servants, employees or agents or otherwise, howsoever using, publishing or reproducing or otherwise infringing copyright in the APS Documents and from authorizing the same.

9.    From the date of this order until judgment, or the earlier determination of this proceeding, the second respondent be restrained from, whether by its directors, officers, servants, employees, agents or otherwise howsoever using, publishing or reproducing or otherwise infringing copyright in the APS Documents and from authorizing the same.

10.    From the date of this order until judgment, or the earlier determination of this proceeding, unless otherwise agreed in writing between the parties, the first respondent be restrained from, whether by himself, his companies (including the second respondent), officers, servants, employees or agents or otherwise:

(a)    taking or accepting any instructions or business from any person or organisation who was at any time between 5 April 2024 and 5 April 2025 a client or customer of, a supplier or contractor to, or investor in APS with whom the first respondent dealt or had substantial contact; or

(b)    soliciting, interfering with or endeavouring to entice away from APS Payroll any employee, contractor or consultant of APS Payroll with whom the first respondent had contact in the course of carrying out his duties and which because of that contact obtained knowledge of their special skills and experience in the performance of their duties for APS Payroll.

11.    From the date of this order until judgment, or the earlier determination of this proceeding, pursuant to s 37AF and on the ground in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), Confidential Annexure A and the Affidavit of Rory Sidey sworn 4 September 2025 are:

(a)    to be treated as confidential; and

(b)    to be sealed on the Court file in an envelope marked “Not to be opened except by leave of the Court or a Judge”;

(c)    not to be published or made available and any electronic version thereof is to be treated in an analogous fashion;

(d)    not to be disclosed to any person other than:

(i)    the Court;

(ii)    the applicants and their legal representatives; and

(iii)    the respondents’ legal representatives.

12.    The proceeding be listed for a further case management hearing at 10:00 am AEST on 19 September 2025.

13.    Liberty to apply on three days’ notice in writing to the other parties.

14.    Costs reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LONGBOTTOM J:

overview

1    The applicants (collectively, APS Group) operate a personalised buyer’s agency service focused on assisting clients to build scalable, high-performing property portfolios. APS Group seeks to identify future growth area property markets and become active in those areas ahead of the market.

2    The First Respondent (Mr Titus) is a former employee of the APS Group. From on or about 24 May 2021, he was employed by the Second Applicant (APS) under an employment contract dated 30 June 2021. On 17 April 2023, Mr Titus entered into an employment contract (second employment contract) with the Third Applicant (APS Payroll). The material terms of the employment contracts were the same.

3    Samuel Gordon is the sole director of the companies comprising the APS Group. He gives evidence that APS (which was incorporated on 3 January 2020) is the main operating entity through which APS Group conducts its business. APS Payroll (which was incorporated on 24 October 2022) is the entity that engages employees of the APS Group. The First Applicant (which was incorporated on 19 October 2022) is the holding entity for APS and APS Payroll.

4    Mr Titus’ position was identified in the second employment contract as “Property Acquisition Specialist”. He describes his role as being to source investment properties for APS’ clients. Because Mr Titus was a qualified real estate agent at the time he entered into the second employment contract, he was able to work directly with clients rather than simply assisting other buyers’ agents in the business.

5    On 28 March 2025, Mr Titus tendered his written resignation from his “role at APS”. A little over two weeks earlier, on 13 March 2025, the Second Respondent (Buyers Edge) was incorporated. Mr Titus is its sole director. Mr Titus describes Buyers Edge as a “buyer’s agency, assisting individuals and corporations locate and secure properties to purchase”. As of July 2025, Buyers Edge had 12 clients, four of whom were clients of APS in the 12 months before his resignation.

6    On 18 June 2025, APS commenced this proceeding. They seek, as against Mr Titus and Buyers Edge, declaratory and injunctive relief, damages or an account of profits and certain ancillary orders. That relief is relevantly founded on claims against Mr Titus for breach of confidence, breach of restraint clauses in the second employment contract and breach of s 183 of the Corporations Act 2001 (Cth).

7    APS Group also seek an interlocutory injunction against Mr Titus and Buyers Edge. Broadly speaking, the interlocutory injunction seeks to restrain the use or disclosure of certain information said to be confidential because it was obtained during the course of Mr Titus’ employment with APS Group and enforce the restraining trade covenant in the second employment contract.

8    The terms of the interlocutory injunction are substantially agreed. There remain two areas of dispute. First, the scope of the information, the disclosure or use of which is to be restrained by the interlocutory injunction. Second, the parameters of the restraint of trade, including whether it is to be confined to accepting instructions or business from a “client or customer” of APS Payroll or extend to a “client or customer of, a supplier or contractor to, or investor in” both APS and APS Payroll.

PRINCIPLES

Interlocutory injunctions

9    The principles to be applied in determining whether to grant an interlocutory injunction are well-established. In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, they were summarised by Gummow and Hayne JJ as follows (at [65]; see also, Gleeson CJ and Crennan J at [19]):

The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

(Footnotes omitted)

10    A prima facie case will be established where, if the evidence before the Court remains as it is, there is a sufficient probability that, at the trial of the action, the applicant will be entitled to the relief that it seeks: Smart EV Solutions Proprietary Limited v Guy [2023] FCA 1580 at [30] (Derrington J), citing Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622.

11    As Derrington J explained in Smart EV (at [30] and [31]):

… The strength of that probability will depend on the nature of the case. To make out a prima facie case, the applicant need not establish that it is more probable than not that it will succeed at trial; merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O’Neill at 81 – 82 [65]. See also Armstrong World Industries (Australia) Pty Ltd v Parma (2014) 101 ACSR 150, 157 [24] (Armstrong World Industries).

… Accordingly, where the respondent goes into evidence on an interlocutory application, it is inappropriate to conduct what is, essentially, a preliminary trial to ascertain where the merits lie — in effect giving or withholding the interlocutory relief on a forecast as to the ultimate result of the case: Beecham at 622 – 623. Rather, once a prima facie case is established, the court should move to consider the balance of convenience.

12    That said, whether an applicant has made out a prima facie case and whether the balance of convenience favours the grant of interlocutory relief are related questions. Warner-Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59; (2014) 311 ALR 632 at [70] (Allsop CJ, Jagot and Nicholas JJ). It will often be necessary to give close attention to the strength of a party’s case when assessing the risk of doing an injustice to either party by granting or withholding interlocutory relief, especially if the outcome is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages or an award of compensation pursuant to the usual undertakings, are likely to be inadequate: Warner-Lambert at [70].

13    The Court will not, on an interlocutory injunction application, conduct a preliminary trial of the action in order to resolve conflicts in the parties’ evidence: Ord Minnett Holdings Pty Ltd v Longmuir [2023] FCA 1262 at [89] (Jackson J). The evidence of the respondent may be such as to explain away the case put by the applicant, or it may show in reality that there is no such case. But it will not be enough to merely raise a conflict on the evidence: Ord Minnett, citing Warner-Lambert at [72] quoting with approval from Shercliff v Engadine Acceptance Corp Pty Ltd [1978] 1 NSWLR 729 at 734.

14    The balance of convenience requires a comparison between the inconvenience or injury that the applicant would be likely to suffer if an injunction were refused and the injury that the respondent would suffer if an injunction were granted: Smart EV at [32]. The question of whether damages will be an adequate remedy for the alleged infringement of the applicant’s rights will always need to be considered on an application for interlocutory relief: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 239 at [62] (Dowsett, Foster and Yates JJ). It may or may not be determinative in any given case. The question involves an assessment as to whether the applicant would, in all material respects, be in as good a position if confined to its damages remedy, as the applicant would be if an injunction were granted: Samsung at [62].

Confidential information

15    The parties are agreed that there ought to be an interlocutory injunction restraining the use or disclosure of certain documents originating from the APS Group as particularised in paragraph [17] of the further amended statement of claim filed 18 August 2025 (APS documents). The dispute between the parties is as to whether there ought also be a restraint with respect to the “Confidential Operating Areas”.

16    The Confidential Operating Areas are the names of certain Local Government Areas (LGAs) that APS has identified as growth areas. The details of those LGAs are contained in a confidential annexure the subject of an interim suppression order made 21 August 2025: Australian Property Scout Holdings Pty Ltd v Titus [2025] FCA 1064. APS Group first sought injunctive relief in relation to the Confidential Operating Areas by an amended interlocutory application filed 14 August 2025.

17    APS Group contends that there exists a prima facie case against Mr Titus for breach of the equitable duty of confidence, cl 10(b) of the second employment contract, and s 183 of the Act with respect to the Confidential Operating Areas. They accept, however, for the purposes of the interlocutory injunction that it is not necessary to consider the case under s 183 of the Act because it is put no higher than the case for breach of an equitable duty of confidence: cf, Smart EV at [69]. Counsel for APS Group also accepted that if I decide the prima facie case under cl 10(b) of the second employment contract in its favour, it is not necessary to go on to consider the case for breach of the equitable duty of confidence.

18    Mr Titus and Buyers Edge argue that it is not clear that the Confidential Operating Areas have the necessary quality of confidence such that they could be subject of an equitable duty of confidence or otherwise fall within the definition of “confidential information” in cl 10(b) of the second employment contract. They further contend that APS Group has not established a prima facie case of actual or threatened misuse of the Confidential Operating Areas or breach of the second employment contract.

Equitable duty of confidence

19    Equitable duty of confidence lies in the notion of an equitable obligation of confidence arising from the circumstances in or through which the information was communicated and obtained: Native Extracts Pty Ltd v Plant Extracts Pty Ltd (No 2) [2024] FCA 106 at [66] (Downes J), citing Moorgate Tobacco Co Ltd v Philip Morris (No 2) [1984] HCA 73; (1984) 156 CLR 414 at 438 (Deane J, with whom Gibbs CJ, Mason, Wilson and Dawson JJ agreed). See also, Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326 at [101] (Campbell JA, McColl JA agreeing).

20    There are four elements that need to be satisfied to establish a breach of confidence: the information in question must be identified with specificity; the information must have the necessary quality of confidence; the information must have been received by the respondent in circumstances importing an obligation of confidence; and there must be an actual or threatened misuse of the information without the applicant’s consent: Native Extracts at [67] to [72], citing Optus Networks Pty Ltd v Telstra Corporation [2010] FCAFC 21; (2010) 265 ALR 281 at [39] (Finn, Sundberg and Jacobson JJ); and IPC Global Pty Ltd v Pavetest Pty Ltd [2017] FCA 82; (2017) 122 IPR 445 at [189] to [196] (Moshinsky J). The dispute between the parties is confined to the second and fourth of those criteria.

21    Whether the information has the “necessary quality of confidence” is a question of fact, having regard to a range of factors: Native Extracts at [69]. In Del Casale, Hodgson JA endorsed the following list of factors based on Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 (Kirby P) and expanded upon by R Dean, The Law of Trade Secrets, 2nd ed, Lawbook Co, Sydney 2002 at p 90 (at [40]):

1.    The extent to which the information is known outside the business.

2.    The extent to which the trade secret was known by employees and others involved in the plaintiff’s business.

3.    The extent of measures taken to guard the secrecy of the information.

4.    The value of the information to the plaintiffs and their competitors.

5.    The amount of effort or money expended by the plaintiffs in developing the information.

6.    The ease or difficulty with which the information could be properly acquired or duplicated by others.

7.    Whether it was plainly made known to the employee that the material was by the employer as confidential.

8.    The fact that the usages and practices of the industry support the assertions of confidentiality.

9.    The fact that the employee has been permitted to share the information only by reason of his or her seniority or high responsibility.

10.    That the owner believes these things to be true and that belief is reasonable.

11.    The greater the extent to which the “confidential” material is habitually handled by an employee, the greater the obligation of the confidentiality imposed.

12.    That the information can be readily identified.

22    Justice Hodgson added to that class of factors: “the extent to which the particular information can be readily isolated from the employee’s general know-how which the employee is entitled to use after the end of employment”: Del Casale at [41]. As his Honour went on to explain (at [42] to [43]):

[42]    In cases where the confidential information is of the nature of a secret formula or process, involving a number of elements such that independent discovery by enquiry or experiment is unlikely to occur, that confidential information can quite readily be distinguished from an employee’s general know-how. In those cases, the courts are ready to restrain use of that information by an ex-employee: see for example Amber Size & Chemical Co. Limited v. Menzel [1913] 2 Ch. 239.

[43]    However, where the confidential information is something that is ascertainable by enquiry or experiment, albeit perhaps substantial enquiry or experiment, and the know-how which the ex-employee is clearly entitled to use extends to knowledge of the question which the confidential information answers, it becomes artificial to treat the confidential information as severable and distinguishable from that know-how; and in that kind of case, courts have tended not to grant relief.

(Emphasis in original)

23    Justice Hodgson was, however, concerned to emphasise that the observations made with respect to confidential information “ascertainable by … know-how” of the former employee were confined to those where the former employee was not subject to an express contractual restraint: at paragraphs [44] to [50].

Contractual duty of confidence

24    The contractual claim with respect to the confidential operating areas is founded on cl 10 of the second employment contract which, relevantly, provides as follows:

10.    Confidentiality

(a)    Other than for authorised use during the course of the Employee’s employment or otherwise as required by law, the Employee must not disclose or make known to any person (including any firm or corporation) either during or after the Employee’s employment has ended, any confidential information that the Employee has been provided, accessed or acquired during the course of the Employee’s employment with the Employer.

(b)    Confidential information includes but is not limited to the following types of information that the Employee may access, acquire or be provided with during the course of the Employee's employment with the Employer:

(i)    all products, ideas, trade secrets and concepts concerning the technology, Intellectual Property or business of the Employer;

(ii)    all financial information or other business information about the Employer and any of its divisions, customers, suppliers, products or strategies;

(iii)    terms of contracts or arrangements between the Employer and any other party (including, without limitation, employees, contractors, agents, customers, suppliers and directors); and

(iv)    research and development information, financial details and information, business plans, marketing plans and strategies, and any other information about the Employer, its business, its products and services or plans.

…

(d)    The Employee’s obligations under this Agreement do not merge on termination and endure for the benefit of the Employer.

25    Mr Titus and Buyers Edge do not put in issue that the Confidential Operating Areas fall within the literal terms of cl 10. They contend, however, that to the extent to which cl 10 imports an obligation of confidence exceeding that owed in equity it should be read down or is invalid in accordance with the following principles outlined by Gordon J in Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458; (2012) 299 ALR 621 at [179]:

The relevant principles to be applied in determining the validity of cl 9 of the Service Agreement may be summarised as follows:

1.    an obligation can be imposed by contract to keep information confidential and that obligation can extend to cover subject matter which is not protected by an equitable duty of confidence: Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 329, 335 and 340-341; Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326 at [34]-[36], [38], [46], [48], [50], [51], [77], [87], [92], [102], [118], [134] and [140] and Reed Business Information Pty Ltd v Seymour [2010] NSWSC 790 at [36];

2.    employers are entitled to protect by contractual covenant the use of information that is the result of work, experimentation and expense: Exchange Telegraph Company Limited v Central News Limited [1897] 2 Ch 48 at 53-54; AB Consolidated Ltd v Europe Strength Food Co Pty Ltd [1978] 2 NZLR 515; Interfirm Comparison (Aust) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 117; Industrial Furnaces Ltd v Reaves [1970] RPC 605 at 617 and International Scientific Communications Inc v Pattison [1979] FSR 429 at 434;

3.    the know-how, or knowledge of how to solve particular problems or the knowledge of methods not necessarily shared by others, acquired by an employee during his or her employment, while ordinarily not protected by equity, is capable of being protected by a contractual covenant: Printers & Finishers Ltd v Holloway (No 2) [1964] 3 All ER 731 and 735-736; Wright at 329; Commercial Plastics Ltd v Vincent [1965] 1 QB 623 at 642 and Milwell Holdings Ltd v Johnson (1988) 12 IPR 378 at 391-3;

4.    a contractual restraint upon the use of confidential information or know-how may be enforceable provided it is reasonable, in the sense of being necessary for the adequate protection of the interests of a party: Brightman v Lamson Paragon Ltd (1914) 18 CLR 331 at 335 and Reed Business Information at [36];

5.    whether a restraint is reasonable is a question of law and not of fact: Attorney-General (Cth) v Adelaide Steamship Co Ltd (1913) 18 CLR 30 at 35; Buckley v Tutty (1971) 125 CLR 353 at 377; Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288 at 317-318; Drake Personnel Ltd v Beddison [1979] VR 13 at 19 and Cream v Bushcolt Pty Ltd (2004) ATPR 42-004 at [23] and [30];

6.    in determining whether a restraint is reasonable the court should consider what is necessary to protect the legitimate interests of the person asserting the restraint in the circumstances of the case, assessed from the date of making the contract and making the best possible estimate of probabilities and contingencies then foreseeable: Amoco at 318; Drake Personnel at 25; Woolworths Ltd v Olson [2004] NSWCA 372 at [40] and Reed Business Information at [36]; and

7.    where, as here, the restraint concerns confidential information, the circumstances to be considered by the Court include:

7.1    the extent to which the information is known outside the business;

7.2    the skill and effort expired to collect the information;

7.3    the extent to which the information is treated as confidential by the employer;

7.4    the value of the information to competitors;

7.5    the ease or difficulty with which the information can be duplicated by others;

7.6    whether it was made known to the employee that the information was confidential; and

7.7    whether the usages and practices in the industry support the claim of confidentiality,

    Reed Business Information at [36].

Evidence

26    The evidence relied upon by APS Group to establish a prima facie case for breach of confidence may be summarised as follows:

(a)    the Confidential Operating Areas are the output of a confidential methodology developed by Mr Gordon by which he identifies growth areas. Those areas are commercially-sensitive because purchasing properties in those areas is central to APS Group’s business. APS typically operates in the Confidential Operating Areas for a period of 12 to 24 months, after which the area will become saturated;

(b)    APS Group’s staff (including buyers’ agents) are subject to contractual obligations of confidentiality with respect to the Confidential Operating Areas. The confidential nature of that information is reinforced by reminders from the Chief of Operations. APS’ clients will be informed of one potential property within one growth area but are not told of the Confidential Operating Areas as a whole. The only information that an APS client receives after signing an agreement, which contains a confidentiality clause, is the address of a property that will help the client achieve their investment goals. At no time is an APS client told that the LGA in which their property is located is one of the Confidential Operating Areas; and

(c)    Mr Gordon believes that Mr Titus knows about all of the Confidential Operating Areas because they were discussed during the course of buyers’ agents’ meetings that he attended which occurred between 5 February 2024 and 5 February 2025. On 6 June 2025, Mr Titus uploaded an Instagram reel, the “comment section” of which identifies his “top three areas” for buying investment properties as being three of the Confidential Operating Areas.

27    Those same matters (as relevant) are relied upon by the APS Group to establish a prima facie case with respect to cl 10(b) of the second employment contract.

28    Mr Titus puts in issue that the Confidential Operating Areas have the necessary quality of confidence. He points to the fact that real estate agents operating in each of the Confidential Operating Areas “necessarily” know that APS is looking to purchase properties in those areas and gives evidence of a trip that he took to one such location while still employed by APS Group, during which he gave presentations to real estate agents about the types of properties APS was seeking to source for its clients in that location. Mr Titus gives evidence that he did not tell the real estate agents that this information was confidential or ask them to sign a confidentiality agreement. He says that this approach was consistent with what he observed during a similar trip with Mr Gordon. Mr Titus also gives evidence that some clients he dealt with at APS would request that they wanted only to buy in one area or would say that they did not want to buy in another area, such that they may have been told about a property in more than one of the Confidential Operating Areas.

29    The respondents also contend that the Confidential Operating Areas can be ascertained by independent work and cannot be isolated from Mr Titus’ general “know-how”, such that it ought not be the subject of relief: cf, Del Casale at [41] to [45]. They dispute, in this regard, that Mr Titus identified the “top three areas” because they were three of the Confidential Operating Areas. Rather, Mr Titus gives evidence that “without wishing to disclose the fine details of everything that [he does] to my competitor” that seven named data points comprised “some of the data and sources of data” that he relied upon to form a view about the growth potential of those areas.

Consideration

Prima facie case of breach of cl 10(b)

30    I am satisfied that APS Group has established a prima facie case with respect to the confidentiality constraint in cl 10 of the second employment contract. That is to say, on the evidence presently before the Court there is a sufficient probability that the applicants will be able to establish at trial that cl 10(b) applied to the Confidential Operating Areas: cf, Zomojo at [179]; see also, Native Extracts at [92].

31    That is for three reasons.

32    First, Mr Gordon gives evidence that the value of the Confidential Operating Areas is that there are a limited number of high-growth areas in each State and Territory and a large part of the success of APS Group is its ability to identify markets in which there is a potential for future growth. That evidence supports the view that the Confidential Operating Areas are valuable not just to the applicants but to their competitors during the 12-to-24-month period of their “currency”. Mr Gordon gives evidence that the Confidential Operating Areas are locations in which APS Group intends to be active between January 2025 and January 2027.

33    Second, Mr Gordon gives evidence that the Confidential Operating Areas (and the means by which they are derived) are not known outside of the APS Group. APS Group makes it known both to their employees and their clients the commercial sensitivity of this information by means of a confidentiality clause in their agreements. Amongst the evidence relied upon by the applicants is a “routine reminder” emailed by the Chief of Operations of APS on 27 February 2025. That email, which I am told was addressed to all employees and included Mr Titus, speaks of the “importance of protecting our buying locations and intellectual property in all of our dealings”. I am not satisfied that the fact that real estate agents in particular locations are told that APS is looking to buy in that area substantively undermines a prima facie case that the Confidential Operating Areas are treated as confidential by APS Group. That is because an APS buyer’s agent indicating to a real estate agent that they are looking to buy property in a particular area is materially different than telling that real estate agent that APS has identified a particular LGA or group of LGAs as markets in which there is potential for future growth.

34    Third, Mr Gordon gives evidence that the methodology by which the Confidential Operating Areas are identified is “a multifactorial approach with approximately 20 separate data indicators, where some of those data indicators are applied to a formula that [he] has developed which measures affordability”. Mr Titus disavows knowledge of this particular methodology, but his own evidence is that the “precise sources and indicators” he relies upon to identify “attractive areas to purchase” … “shifts depending on the area”, but that identifying three of the Confidential Operating Areas as attractive markets involved pulling together seven different data points. That goes to support the view that it is not a straightforward process to duplicate information about potential growth areas: cf, Zomojo at [179], point 7.5.

35    Those matters, taken in combination, found a prima facie case that the Confidential Operating Areas retain the quality of confidentiality such that the obligations in cl 10(b) apply to them. Given the view that I have reached about the claim in contract and the matters communicated to me by counsel for APS Group as outlined above, it is not necessary for me to determine whether APS Group has established a prima facie case for breach of the equitable duty of confidence or breach of s 183 of the Act.

Balance of convenience

36    Turning then to the balance of convenience, APS Group emphasises that the Confidential Operating Areas comprise only 24 of the 567 LGAs in Australia. They say that if an interlocutory injunction is not granted, then it would have the potential to adversely affect APS Group because its 17 buyers’ agents are paid on a commission basis, and their commission would be impacted if APS Group’s business was reduced because of the use of the Confidential Operating Areas by Mr Titus and Buyers Edge.

37    APS Group further contends that damages are not an adequate remedy. As to this, they submit that APS seeks to enforce the terms of the bargain Mr Titus entered and the negative stipulations to which he agreed in the second employment contract. They submit that prevention of further breaches is likely to be better than cure having regard to the risk of further fracture of APS’s relationship with its clients and the potential for further diversion of clients and business opportunity. They also identify possible difficulties that proof of any loss may present including proof of causation: cf, Wilson Pateras Accounting Pty Ltd v Farmer [2020] FCA 1763 at [115] (Wheelahan J).

38    Mr Titus and Buyers Edge assert that an interlocutory injunction with respect to the Confidential Operating Areas may “cripple or end” their “nascent business”. They point to the delay in APS Group seeking this relief (by amended interlocutory application filed 14 August 2025) and the limited “currency” of the Confidential Operating Areas, which are said to have been communicated to Mr Titus between February 2024 and February 2025. They also rely on confidential affidavit evidence the effect, but not the detail of which, is that not all LGAs are equal when it comes to buying property. The respondents have also indicated that they are prepared to agree to the following order:

By consent, and without admissions, the respondents will from the date of this order until further order or the conclusion of these proceedings keep accounts recording each of their clients, the address of any property or properties purchased for them, and the fees received from them and the expenses incurred in providing services to them.

39    I am not satisfied that the balance of convenience favours the grant of an interlocutory injunction with respect to the Confidential Operating Areas. The inconvenience or injury that APS Group will suffer if interlocutory relief is withheld is the potential loss of commissions to its buyers’ agents for the period of “currency” of those locations. APS Group otherwise rely upon the submissions I have outlined above as to why damages are not an adequate remedy.

40    On the other hand, Mr Titus and Buyers Edge say that the effect of the grant of an injunction will put in issue the capacity of their business to continue. Without revealing its substance, I am satisfied that the confidential affidavit evidence lends some weight to that submission because of what it says about the differences between the Confidential Operating Areas and the remaining unaffected LGAs insofar as it concerns the operation of a buyers’ agency service of the type operated by the parties. Further support for that view comes from the evidence outlined above from Mr Gordon with respect to the limited number of areas that have the relevant potential for growth.

41    As I have outlined, the respondents have agreed to orders the effect of which is that they will keep an account of each of their clients and the properties purchased for them, as well as any fees received from the provision of those services. Those orders are principally directed to an account of profits in respect of the equitable claim. But they are material to the balance of convenience on the contractual claim because the identification of that information will more readily enable APS Group to quantify its damages, should they succeed on the claim under cl 10(b) at trial. At least from the date of the orders, that information will also facilitate proof of causation.

42    Given those matters, in my assessment, the injury or inconvenience that APS Group would be likely to suffer if an injunction with respect to the Confidential Operating Areas is refused is outweighed by the injury which Mr Titus and Buyers Edge would suffer if an injunction were granted.

43    The view I have reached on the balance of convenience is also informed by the strength of the prima facie case with respect to cl 10(b) of the second employment contract: cf, Warner-Lambert at [70]. In particular, while I am satisfied on the evidence presently before the Court that replication of the Confidential Operating Areas is not straightforward, there is an absence of specificity in the evidence of APS Group as to the methodology by which those areas are identified, so as to enable me to conclude prima facie that the process is so difficult as to be in the character of a secret formula or process: cf, Zomojo at [179], point 3 and [179], point 7.5; and Del Casale at [41] to [45].

RESTRAINT OF TRADE

44    The parties are agreed that there ought to be an interlocutory injunction giving effect to cl 12 of the second employment contract. The scope of the dispute between the parties is as to the proper construction of that clause. This includes whether it ought only to apply in respect of just APS Payroll or APS Payroll and APS; whether certain expressions used in the clause require further clarification and whether the interlocutory injunction ought to include the cascading definition of the restraint area and restraint period as contained in the second employment contract.

Principles

45    In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; [2015] 256 CLR 104, the principles of construction of a contract were summarised as follows (at [46] to [51] (French CJ, Nettle and Gordon JJ)):

[46]    The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

[47]    In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

[48]    Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

[49]    However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

[50]    Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties’ statements and actions reflecting their actual intentions and expectations.

[51]    Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption “that the parties ... intended to produce a commercial result”. Put another way, a commercial contract should be construed so as to avoid it “making commercial nonsense or working commercial inconvenience”.

(Footnotes omitted)

46    Where there is ambiguity in a restraint clause in an employment contract, that ambiguity is to be construed in favour of the employee so that, as between the two reasonably available constructions, the one which imposes the lesser obligations on the employee is to be preferred: Just Group Ltd v Peck [2016] VSCA 334; (2016) 344 ALR 162 at [38] (Beach and Ferguson JJA and Riordan AJA).

47    But the literal meaning of contractual words cannot be corrected unless that literal meaning is an absurdity and it is self-evident what the objective intention of the parties is taken to have been: Federal Commissioner of Taxation v Trustee for the Michael Hayes Family Trust [2019] FCAFC 226; (2019) 273 FCR 567 at [32] (Stewart J, with whom Griffiths and Derrington JJ agreed).

Restraint clause

48    Clause 12 of the second employment contract provides as follows:

12.    Restrictive covenants after termination of employment

(a)    Unless the Employee has obtained the Employer's prior written consent, the Employee must work exclusively for the Employer.

(b)    Unless the Employee has obtained the Employer's prior written consent, the Employee must not for the Restraint Period outlined in Item 9 of Schedule 1 of this Agreement after the Employee's employment ends (for whatever reason), in the Restraint Area outlined in Item 10 of Schedule 1:

(i)    take or accept any instructions or business from any person or organisation who was at any time during the 12 months prior to the Employee's employment ending, a client or customer of, a supplier or contractor to, or investor in the Employer with whom the Employee dealt or had substantial contact; or

(ii)    solicit, interfere with or endeavour to entice away from the Employer any employee, contractor or consultant of the Employer with whom the Employee had contact in the course of carrying out the Employee's duties and which because of that contact obtained knowledge of their special skills and experience in the performance of their duties for the Employer.

(c)    The Employee acknowledges and agrees that:

(i)    in the course of its employment, the Employee will gain knowledge of confidential information and form working relationships with the other employees, contractors, customers and suppliers of the Employer and as a result will be in a position to cause harm to the legitimate business interests of the Employer on leaving the employment;

(ii)    the only effective, fair and reasonable manner in which the interests of the Employer can be protected is by these restraints and the maximum duration, extent and application of these restrictions are not greater than is reasonably necessary for the protection of the legitimate business interests of the Employer, given the nature of the business and undertaking of the Employer; and

(iii)    damages may not be an adequate remedy for the Employer for any breach of the restraints contained in this clause and the remedies of injunction, specific performance and other equitable relief may be appropriate for any threatened or actual breach of this clause.

49    The “Employer” and “Employee” are respectively defined as APS Payroll and Mr Titus. Schedule 1 of the second employment contract relevantly provides as follows:

Schedule 1

Consideration

Prima facie case

APS Payroll or APS

50    The first aspect of the dispute is whether given the definition of “Employer” in the second employment contract, the restraint in cl 12(b)(i) and (ii) is confined to APS Payroll and/or APS.

51    APS Group contends that on its proper construction cl 12(b)(i) either applies in respect of a “client or customer of, a supplier or contractor to, or investor in” both APS and APS Payroll or, alternatively, APS. That same construction is said to apply to cl 12(b)(ii) of the second employment contract. Mr Titus and Buyers Edge contend that cl 12(b)(i) and (ii) are to be given their literal meaning such that the restraint applies only in respect of a “client or customer of, a supplier or contractor to, or investor in” and “employee, contractor or consultant of” APS Payroll.

52    I am satisfied that APS Group has established a prima facie case that the literal construction of “Employer” in cl 12(b)(i) is an absurdity and that it is self-evident that the objective intention is that this clause apply to a “client or customer of, a supplier or contractor to, or investor in” APS.

53    As counsel for Mr Titus and Buyers Edge conceded at the hearing of the interlocutory injunction, the consequence of the construction for which they contend is that the restraint in cl 12(b)(i) will be of no practical effect because the sole function of APS Payroll is to engage employees on behalf of the APS Group. It is APS that is the main operating entity through which APS Group conducts its business of personalised buyer’s agency.

54    That concession underscores the absurdity of construing “Employer” in cl 12(b)(i) as APS Payroll. But the view I have reached on the prima facie case is founded on the text of the second employment contract, as understood in its legal and factual context on the evidence presently before the Court: cf, Michael Hayes at [36] to [48]; see also, Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 99 NSWLR 317 at [3] to [10] (Leeming JA).

55    Schedule 1 of the second employment contract provides that Mr Titus’ role was that of “Property Acquisition Specialist” whose duties, responsibilities and obligations materially included prospecting and sourcing properties “that meet [APS] criteria” and building “productive and long-term relationships with company clients and corporate partners” (emphasis added). It was a special condition of his employment that Mr Titus “not trade externally to APS as a buyer’s agent, buyers advocate or in any similar role to his employment” (emphasis added).

56    Construing the second employment contract as a whole, and applying the two-step test outlined above, I am satisfied that there is a sufficient probability that APS Group will establish at trial:

(a)    that applying the literal meaning of “Employer” is an absurdity because APS Payroll did not have “clients or customers” on behalf of whom properties would be sourced and acquired by Mr Titus as an employee;

(b)    it is self-evident that the objective intention was to refer to the actual entity through which APS Group carried on its business of sourcing and acquiring properties for clients and customers, namely, APS.

57    Those same considerations do not, however, apply to cl 12(b)(ii) of the second employment contract. That is because it is not an absurdity to construe “Employer” in that clause as “APS Payroll”, given that it is the entity through which APS Group has engaged its employees since around 2022.

Cascading clauses

58    Mr Titus and Buyers Edge contend that the term and area of the interlocutory injunction ought to be framed in terms of the cascading Restraint Area and Restraint Period outlined above. But that contention is not accompanied by a submission that the upper echelon of the geographic and temporal restraints in the second employment contract are unenforceable such that they ought to be read down. In the absence of such an argument, I am satisfied that APS Group has established a prima facie case that the restraint is to apply for 12 months and across Australia: cf, Sch 1, cll 9(a) and 10(a) of the second employment contract.

Definition of “dealt or had substantial contact” and “supplier or contractor”

59    Mr Titus and Buyers Edge contend that the expression “dealt or had substantial contact” and “supplier or contractor” as used in cl 12(b)(i) should be defined in an interlocutory injunction giving effect to that clause.

60    Their proposed definition of “dealt or had substantial contact is”:

“dealt or had substantial contact” means:

i.    substantial correspondence or communication with in my professional capacity and or as part of my work; or

ii.    the completion of work, including: the provision of details and information with respect to a potential property, acting as an advocate, communicated with them (either in writing or verbally) regarding their interest in and or subsequent purchase of, the property (irrespective of whether the purchase completed or not).

61    Those contentions are not so much founded on an argument with respect to the prima facie case as borne out of a concern to ensure that the terms of any interlocutory injunction are sufficiently clear. APS Group submit, and I accept, that orders ought not be made in terms of cl (i) of the definition of “dealt or substantial contact” because the effect of such a definition would be to detract from the plain meaning of that phrase. But APS Group was prepared to agree to the inclusion of paragraph (ii) as the definition of “dealt” and the following definition of “supplier or contractor”:

“Supplier” means any person or organisation who supplied goods or services to APS or APS Payroll in exchange for payment of at least $500 or more in the financial year period 5 April 2024 to 5 April 2025. to 30 June 2025.

(Amendments in the original)

62    The date range proposed by APS Group reflects the dispute between the parties as to whether Mr Titus resigned or was terminated. APS Group contends that he was terminated with effect from 5 April 2025. Given the views expressed by APS Group and the desirability of ensuring that the injunctions are readily able to be understood and enforced, and the absence of any particular argument as to why the definition proposed detracts from the prima facie case, I am prepared to include the definition of “dealt” and “supplier” in the interlocutory injunction.

Balance of convenience

63    The matters relied upon by the parties as going to the balance of convenience with respect to cl 12(b) of the second employment contract are not materially different from those outlined above with respect to the Confidential Operating Areas.

64    It can readily be inferred that the inconvenience or injury that APS Group is likely to suffer if an injunction in the terms sought were refused, is that Mr Titus and Buyers Edge would be able to take or accept instructions or business from, in effect, a client or customer of, or supplier or contractor to, APS during the 12 months prior to Mr Titus’ employment ending. As I outlined at the outset with respect to the evidence of Mr Titus, it appears that the respondents have already engaged with four such clients.

65    The injury that Mr Titus and Buyers Edge would suffer if the injunction were granted is that they would not be able to engage in that conduct. A material difference between those considerations in the case of cl 12 as opposed to cl 10 is that the effect of an injunction with respect to the latter affects a significant area in which the respondents could operate, whereas an injunction in respect of cl 12 is more confined in its operation and to a readily ascertainable group of clients.

66    Viewed in that context, in my assessment, the injury or inconvenience which APS Group would be likely to suffer if an injunction were refused outweighs the injury which the respondents will suffer if an injunction is granted in the terms sought by APS Group. The strength of the prima facie case with respect to the construction of cl 12 of the second employment contract is a further matter that, in my assessment, leads to the conclusion that the balance of convenience favours the grant of the injunction in terms substantially the same as those sought by APS Group on the application.

Associate:

Dated:    19 September 2025