The Continuity Company (M) Sdn Bhd ("TCC") v Chin Chee Hong, Khalid Gibran, Vijay Anand s/o Prabhakaran, Xclusive Promotion International Limited and Direct Marketing International Ltd

ZRp represented TCC before the High Court. The 1st, 2nd and 3rd Defendants in this matter were former employees of TCC who had exploited the Confidential Information of TCC which they had obtained during the course of their employment, and even after having left employment with the Plaintiff. The 1st to 3rd Defendants together with the 4th and 5th Defendants had then utilised the Confidential Information belonging to TCC to deal with and solicit TCC's customers and/or prospective customers to the collective benefit of the Defendants. The Plaintiff brought an action (i) against the 1st to the 3rd Defendants for breach of contract which included confidentiality obligations, exclusivity, non-compete, non-solicitation of customers and/or clients. Also, for breach of common law duties of fidelity and/or fiduciary and/or trust and (ii) against the 4th and 5th Defendants, for breach of constructive trust.

The High Court ruled in favour of TCC and held:

  1. that as long as the Plaintiff has sufficient interest in the Confidential Information, the Plaintiff may enforce that right. The Plaintiff need not specifically own the Confidential Information;
  2. that the enforcement of the contractual terms of confidentiality obligations, exclusivity, non-compete, non-solicitation of customers and/or clients contained in the employment contracts of the 1st, 2nd and 3rd Defendants do not amount to restraint of trade; and
  3. that despite the fact that the 4th and 5th Defendants were not privy to the terms of employment of the 1st, 2nd and 3rd Defendants, the 4th and 5th Defendants have received the Confidential Information from the 1st, 2nd and 3rd Defendants for their benefit and as such, there was breach of constructive trust. The matter is currently pending appeal in the Court of Appeal.

Partner, Head of Department, Mr P. Jayasingam, Partner, Ms Jacinta Johnson together with Partner, Ms Norliza Rasool Khan handled the case.