Missingham v Shamin [2012] NSWSC 288

Missingham v Shamin [2012] NSWSC 288

The defendant breached the contractual confidentiality provisions of the deed of settlement by publishing material on the internet that disclosed, directly or indirectly, terms of the settlement beyond the agreed permitted statement. The plaintiff's alleged conduct did not amount to unclean hands, and the limited disclosure arising from court filing and publication of parts of an ex tempore judgment did not put the material so far into the public domain as to destroy the utility of the confidentiality obligations. Because the obligation was a negative contractual covenant, damages were inadequate and no good reason was shown to refuse enforcement, a permanent injunction was granted....

Jurisdiction
Australia
Judgment Date
21 March 2012
Procedural Posture
Equity Division Summons Seeking a Permanent Injunction, Damages and Indemnity Costs for Breach of a Deed of Settlement / Principal Judgment After Hearing on 16 March 2012
Outcome
Permanent injunction granted; nominal damages and indemnity costs ordered against the defendant.
Legal Topics
['permanent Injunction' 'confidentiality Provision in Deed of Settlement' 'breach of Negative Covenant' 'public Domain and Limited Publication' 'unclean Hands' 'nominal Damages' 'indemnity Costs']
['equity' 'contract' 'confidentiality'] ['permanent Injunction' 'confidentiality Provision in Deed of Settlement' 'breach of Negative Covenant' 'public Domain and Limited Publication' 'unclean Hands' 'nominal Damages' 'indemnity Costs']

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Procedural Posture

Equity Division Summons Seeking a Permanent Injunction, Damages and Indemnity Costs for Breach of a Deed of Settlement / Principal Judgment After Hearing on 16 March 2012

Legal Issues

  1. 1 ['Whether the defendant breached the confidentiality provisions of the deed of settlement by posting material on an internet forum.' 'Whether the plaintiff was disentitled to equitable relief by alleged unclean hands.' 'Whether filing a Notice of Discontinuance in open court or publication of an ex tempore judgment on the NSW Caselaw website destroyed the confidentiality of the settlement material.' 'Whether a permanent injunction should be granted to enforce the confidentiality obligations.' 'Whether damages and indemnity costs should be awarded.']

Ratio Decidendi

The defendant breached the contractual confidentiality provisions of the deed of settlement by publishing material on the internet that disclosed, directly or indirectly, terms of the settlement beyond the agreed permitted statement. The plaintiff's alleged conduct did not amount to unclean hands, and the limited disclosure arising from court filing and publication of parts of an ex tempore judgment did not put the material so far into the public domain as to destroy the utility of the confidentiality obligations. Because the obligation was a negative contractual covenant, damages were inadequate and no good reason was shown to refuse enforcement, a permanent injunction was granted....

Court Disposition

Permanent injunction granted; nominal damages and indemnity costs ordered against the defendant.

Orders

  • ['The defendant be restrained by himself, his servants or agents from disclosing or permitting to be disclosed, directly, or indirectly, the terms of the deed of settlement and release dated 7 September 2011 between the plaintiff, Dr Larissa Koroleva and the defendant, except with the express written consent of the...