Relevant factors in testing restraints of trade

The fact that Ms Peck was prepared to agree to the restraints in her contract is a matter to which I attach considerable weight. The fact that Ms Peck’s contract was a product of negotiation is not, however, determinative of whether JGL has discharged the onus of establishing that the restraints contained therein go no further than is reasonably necessary to protect its legitimate interests. The same observation may be made in respect of the express contractual acknowledgement that the restraints are reasonable. Provisions acknowledging the reasonableness thereof are a common feature of contracts which contain restraints provisions. Irrespective of the nature of the negotiations which precede a contract containing restraint provisions, the onus rests upon the covenantee to establish the reasonableness of the restraint. The restraints imposed upon Ms Peck are liable to be struck down as unreasonable on multiple grounds. The fact that the contract was the product of negotiations, and that Ms Peck succeeded in negotiating a very generous salary package, does not validate the restraints.”
Just Group Limited v Peck (2016) VSC 614 delivered 17 October 2016 per McDonald J