Orica Investments Pty Ltd & 2 Ors v William McCartney & 3 Ors [2007] NSWSC 645

Orica Investments Pty Ltd & 2 Ors v William McCartney & 3 Ors [2007] NSWSC 645

McCartney breached the Share Sale Agreement by enticing suppliers and employees away (Clos d'Aguzon, Nguyen, Lynam), providing confidential contact information, and by acts facilitating Ingredients Plus' business; provided advice and assistance that constituted carrying on business in prohibited capacity. Lending and beneficial shareholding alone did not breach the agreement. No fiduciary relationship was established with Bronson & Jacobs as consultant. Claims for constructive trust and account of profits rejected. Damages for loss of Clos d'Aguzon business are recoverable. Graeme Love and Ingredients Plus are liable in tort for knowingly interfering with contractual relations resulting...

Parties
Plaintiff: Orica Investments Pty Ltd; Plaintiff: Bronson & Jacobs Pty Ltd; Plaintiff: Orica Australia Pty Ltd; First Defendant: William McCartney; Second Defendant: Ingredients Plus Pty Ltd; Third Defendant: Graeme Love; Fourth Defendant: Thomas Love
Jurisdiction
Australia
Judgment Date
25 June 2007
Procedural Posture
Civil / Judgment
Outcome
Plaintiffs entitled to declarations, injunctions, nominal damages, damages inquiry, and counsel to bring in short minutes of order per reasons; final form of orders subject to further submissions.
Legal Topics
Restraint of Trade, Confidential Information, Fiduciary Duties, Injunctions, Interference With Contractual Relations
Contracts Equity Torts Restraint of Trade Confidential Information Fiduciary Duties Injunctions Interference With Contractual Relations

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Parties

Orica Investments Pty Ltd

Plaintiff

Bronson & Jacobs Pty Ltd

Plaintiff

Orica Australia Pty Ltd

Plaintiff

William McCartney

First Defendant

Ingredients Plus Pty Ltd

Second Defendant

Graeme Love

Third Defendant

Thomas Love

Fourth Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Did William McCartney breach covenants in restraint of trade and confidentiality under a Share Sale Agreement?
  2. 2 Did McCartney breach good faith and co-operation implied in a Consultancy Agreement?
  3. 3 Were fiduciary duties owed by McCartney as consultant?

Ratio Decidendi

McCartney breached the Share Sale Agreement by enticing suppliers and employees away (Clos d'Aguzon, Nguyen, Lynam), providing confidential contact information, and by acts facilitating Ingredients Plus' business; provided advice and assistance that constituted carrying on business in prohibited capacity. Lending and beneficial shareholding alone did not breach the agreement. No fiduciary relationship was established with Bronson & Jacobs as consultant. Claims for constructive trust and account of profits rejected. Damages for loss of Clos d'Aguzon business are recoverable. Graeme Love and Ingredients Plus are liable in tort for knowingly interfering with contractual relations resulting...

Court Disposition

Plaintiffs entitled to declarations, injunctions, nominal damages, damages inquiry, and counsel to bring in short minutes of order per reasons; final form of orders subject to further submissions.

Orders

  • Declaration of breach of clause 15.1 Share Sale Agreement.
  • Declaration of breach of Consultancy Agreement.