Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29

Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29

The Court held that Mr Agha's appeal failed except in relation to the declaration combining the three-year shareholders' agreement restraint with the radius restraint in the employment agreement, because the shareholders' agreement and employment agreement co-existed but could not be rewritten by combining terms from both. Client contact lists were confidential and were protected by Mr Agha's employment agreement, and any public-domain argument did not defeat Devine Concord's contractual rights. The restraints against Mr Agha were reasonable to protect Devine Concord's goodwill, trade connection, client connection and staff connection, particularly given his seniority and shareholding. Mr...

Jurisdiction
Australia
Judgment Date
09 March 2021
Procedural Posture
Application for Leave to Appeal and Appeal From Orders of the Equity Division Granting Final Injunctive Relief and Declarations / Court of Appeal Decision on Appeal From Supreme Court of New South Wales, Equity Division
Outcome
The first appellant's appeal was allowed in part and otherwise dismissed; the second appellant's appeal was allowed.
Legal Topics
['breach of Confidence' 'confidential Information' 'restraint of Trade' 'employment Restraints' "shareholders' Agreement" 'public Domain and Confidential Material' 'client Lists' 'corporations Act Duties']
['equity' 'contract' 'employment' 'commerce' 'corporations'] ['breach of Confidence' 'confidential Information' 'restraint of Trade' 'employment Restraints' "shareholders' Agreement" 'public Domain and Confidential Material' 'client Lists' 'corporations Act Duties']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal From Orders of the Equity Division Granting Final Injunctive Relief and Declarations / Court of Appeal Decision on Appeal From Supreme Court of New South Wales, Equity Division

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that Mr Coombe entered into an employment agreement that included a restraint of trade clause and contractual protections of confidential information.' 'Whether the primary judge erred in finding that Mr Agha and Mr Coombe breached contractual obligations of confidentiality.' 'Whether filing and service of the summons and affidavit, or the reading of the affidavit and tendering of exhibits, meant that client information ceased to be confidential.' "Whether the primary judge erred in holding that a combination of a radius restraint in the employment agreement and a postcode restraint in the shareholders' agreement should apply for the longer period in the shareholders' agreement." "Whether the primary judge erred in granting injunctive relief enforcing cl 10 of the shareholders' agreement and cl 19 of the employment agreement." 'Whether the primary judge erred in finding that Mr Agha was responsible for sabotage of client contact records.' 'Whether declarations that Mr Coombe breached ss 181-183 of the Corporations Act 2001 (Cth) were appropriate.']

Ratio Decidendi

The Court held that Mr Agha's appeal failed except in relation to the declaration combining the three-year shareholders' agreement restraint with the radius restraint in the employment agreement, because the shareholders' agreement and employment agreement co-existed but could not be rewritten by combining terms from both. Client contact lists were confidential and were protected by Mr Agha's employment agreement, and any public-domain argument did not defeat Devine Concord's contractual rights. The restraints against Mr Agha were reasonable to protect Devine Concord's goodwill, trade connection, client connection and staff connection, particularly given his seniority and shareholding. Mr...

Court Disposition

The first appellant's appeal was allowed in part and otherwise dismissed; the second appellant's appeal was allowed.

Orders

  • ['The appeal of the first appellant be allowed in part.' 'The appeal of the second appellant be allowed.' 'Set aside orders 5, 6 and 9 made on 4 December 2019.' 'The appeal of the first appellant be otherwise dismissed.' "The respondents pay the second appellant's costs of the appeal so far as those costs concern...