Business & commercial

Restraint & confidentiality agreements in Victoria.

The value of most businesses walks out the door every evening. CMK Legal drafts and enforces restraints of trade, non-solicitation clauses and confidentiality agreements for Victorian businesses, clauses calibrated to be enforceable rather than merely intimidating.

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Solicitor-drafted

Restraints drafted to be enforced, with cascading periods and areas.

Practical timeframes

NDAs turned around in 1 to 2 business days; urgent injunctions same day.

Fixed fee, quoted first

Fixed fee for drafting; enforcement estimated stage by stage.

Australian commercial law

Victorian restraint of trade principles and equitable confidentiality.

How restraints and NDAs work.

A restraint of trade is void at common law unless it goes no further than reasonably necessary to protect a legitimate business interest. Those interests are limited to things like client connection, confidential information and trade secrets, and the stability of the workforce. Preventing ordinary competition is not one of them, which is why over-broad restraints fail.

Reasonableness is assessed at the time the contract was made, against the seniority of the person, their actual client contact and access to information, and the duration, geographic area and scope of activity restrained. Victorian courts do not have the New South Wales statutory power to read down a restraint, so drafting must do that work, cascading periods and areas give a court narrower alternatives it can sever and enforce.

Confidentiality operates alongside and often outlasts a restraint. A well-drafted confidentiality agreement or NDA defines the information, limits its permitted use, deals with residual knowledge and disclosure to advisers, requires return or destruction, and sets a term that survives the end of the relationship. For sale processes and joint ventures, mutual NDAs and non-circumvention clauses are usually needed as well.

Enforcement is about speed. If a departing employee is taking clients, an injunction application in the first days is realistic; three months later a court is far more likely to leave you to a damages claim.

What we do.

Restraints calibrated to the role

Different clauses for a junior employee, a senior account manager, a director and a business seller. A restraint appropriate for a vendor of goodwill is not one a court will accept against a salaried employee.

Confidentiality that survives

Clear definitions of confidential information, permitted use and disclosure, obligations on return or destruction, and survival periods that continue after the relationship ends.

Client and staff protection

Non-solicitation of clients the person actually dealt with, non-dealing clauses where justified, and non-poaching of employees, usually the most enforceable and most useful protections in practice.

Enforcement when it is breached

Cease and desist correspondence, undertakings, urgent injunctions, and claims for damages or an account of profits, including against the new employer where it has induced the breach.

Talk to us if.

  • A key employee has resigned and clients are being contacted
  • You are selling a business and need the vendor restrained
  • You are hiring someone bound by a competitor's restraint
  • You are disclosing financials or IP to a potential buyer or partner
  • Your contracts have never included a restraint or NDA
  • Staff are leaving with client lists, pricing or supplier data
  • You have been sent a letter alleging breach of a restraint
  • You need a mutual NDA for a joint venture or funding discussion

Preserve the evidence before you write the letter, email exports, system access logs, download records and client communications. Enforcement usually turns on what can be proved in the first week.

How restraint matters run.

  1. 01

    Assess the interest

    We identify the legitimate business interest, client connection, confidential information or workforce stability, that a court can be asked to protect.

  2. 02

    Draft or review

    Restraint and confidentiality clauses drafted with cascading alternatives, or existing clauses assessed for enforceability.

  3. 03

    Evidence

    Where there is a breach, we secure the documentary evidence of solicitation, downloads and client movement before acting.

  4. 04

    Demand and undertakings

    A letter to the individual and the new employer seeking written undertakings, which resolves the majority of matters.

  5. 05

    Injunction if needed

    Urgent interlocutory relief in the Supreme Court where undertakings are refused and damage is continuing.

Transparent fees.

Restraint and confidentiality drafting is a fixed fee quoted before we start, whether as part of an employment contract or as a standalone deed. NDAs are a small fixed fee. Enforcement is estimated stage by stage, evidence and demand, negotiation of undertakings, and any injunction application, so you control the spend at each point.

Request a fixed-fee quote

FAQs

Restraint & confidentiality FAQs.

Still unsure? Call us on (03) 9008 7224 and speak to a lawyer, not a call centre.

Are non-compete clauses enforceable in Victoria?
Yes, but only so far as they are reasonably necessary to protect a legitimate business interest. Courts look at duration, geographic area, the scope of the restrained activity and the seniority and client contact of the person. Broad restraints on junior staff are routinely struck down; narrower ones on senior people are regularly enforced.
What is a cascading restraint?
A clause offering a series of alternative periods and areas, for example 12, 6 or 3 months within Victoria, metropolitan Melbourne or a 10 kilometre radius. If the widest combination is unreasonable, a court can sever it and enforce a narrower one instead of voiding the clause entirely. This matters especially in Victoria, which has no statutory read-down power.
What is the difference between non-compete and non-solicitation?
A non-compete stops the person working in a competing business at all. A non-solicitation stops them approaching your clients or staff. Non-solicitation is much easier to justify and enforce because it targets the protected connection directly rather than the person's ability to earn a living.
Do I need to pay someone during a restraint period?
Not in Australia as a general rule, unlike some overseas jurisdictions. However, paying for the restraint, through garden leave, a payment on termination or consideration at signing, makes a longer restraint materially easier to defend as reasonable.
Is an NDA worth having if it is hard to prove a breach?
Yes. It defines what is confidential, removes any argument that the information was public or freely usable, gives you a contractual claim without needing to establish an equitable duty, and provides the basis for urgent injunctive relief. In practice it also deters most casual misuse.
An employee has taken clients. What can I do?
Move quickly. Preserve the evidence, write to the individual and their new employer seeking undertakings, and if those are refused, apply for an urgent injunction. Damages or an account of profits can follow, and the new employer may itself be liable for inducing the breach.

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Protecting clients, staff or information?.

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