Showcase Realty Pty Ltd v Nathan Circosta [2021] NSWSC 355

Showcase Realty Pty Ltd v Nathan Circosta [2021] NSWSC 355

Showcase Realty failed in its duty of candour on an ex parte application by not disclosing to the court that the nine properties transferred immediately after Mr Circosta's departure were all owned by his friends and family, a fact central to evaluating whether confidential information had been misused. This omission was material to the decision to grant a search order and thus warranted setting aside the Anton Piller order ab initio.

Parties
Plaintiff: Showcase Realty Pty Ltd; First Defendant: Nathan Circosta; Second Defendant: Oproperty Pty Ltd
Jurisdiction
Australia
Judgment Date
09 April 2021
Procedural Posture
Equity / Application to Set Aside Anton Piller (search) Order, Post Execution
Outcome
Anton Piller (search) order set aside ab initio; costs to defendants; items to be returned.
Legal Topics
Anton Piller Orders, Ex Parte Procedure, Duty of Candour, Material Non Disclosure, Confidential Information, Employment Restraints, Costs
Equity Anton Piller Orders Ex Parte Procedure Duty of Candour Material Non Disclosure Confidential Information Employment Restraints Costs

Case Brief

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Parties

Showcase Realty Pty Ltd

Plaintiff

Nathan Circosta

First Defendant

Oproperty Pty Ltd

Second Defendant

Procedural Posture

Equity / Application to Set Aside Anton Piller (search) Order, Post Execution

Legal Issues

  1. 1 Whether Showcase Realty made material non-disclosure in obtaining an ex parte Anton Piller order
  2. 2 Whether the Anton Piller order should be set aside ab initio for lack of candour
  3. 3 Whether the omission to inform the court that the 2018 Clients were friends and family was material

Ratio Decidendi

Showcase Realty failed in its duty of candour on an ex parte application by not disclosing to the court that the nine properties transferred immediately after Mr Circosta's departure were all owned by his friends and family, a fact central to evaluating whether confidential information had been misused. This omission was material to the decision to grant a search order and thus warranted setting aside the Anton Piller order ab initio.

Court Disposition

Anton Piller (search) order set aside ab initio; costs to defendants; items to be returned.

Orders

  • Orders made by Rein J on 6 October 2020 (search orders) set aside ab initio pursuant to rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW)
  • Items removed from the first defendant and from the second defendant's premises pursuant to the search orders, including storage devices containing copied information, to be returned forthwith