Devine Real Estate Concord Pty Limited v Agha [2025] NSWSC 837 | Case summary

Devine Real Estate Concord Pty Limited v Agha [2025] NSWSC 837 | Case summary | Zoe

On 4 May 2018, Sackar J ordered that the question of liability be determined separately from other issues in the proceedings. His Honour then conducted an expedited final hearing limited to that question. The hearing commenced in August 2018 and, for reasons of ill-health of counsel as well as some significant deficiencies in the way the parties conducted the hearing, ran for a total of 12 days spread between August 2018 and May 2019, with written submissions filed in May and June 2019.
Sackar J delivered comprehensive reasons on the question of liability on 28 June 2019: Devine Real Estate Concord Pty Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786 (the liability judgment, ‘J’). For the moment, it is enough to note his Honour’s findings that Mr Agha was subject to comprehensive non-compete and non-solicitation restraints in his employment agreement and shareholders’ agreement as well as express obligations not to misuse confidential information and that he breached those obligations. His Honour also found that Mr Agha breached ss 181 to 183 of the Corporations Act 2001 (Cth).
So far as Mr Coombe was concerned, Sackar J found that he was subject to a written employment agreement that included the same non-compete and non-solicitation restraints as contained in Mr Agha’s employment agreement.
Sackar J made final orders on 4 December 2019. Those orders did not include injunctive relief against Mr Coombe. The only final relief granted against or in relation to Mr Coombe was a declaration that he was bound by an employment agreement on the same terms as Mr Agha and a declaration that he had breached ss 181 to 183 of the Corporations Act.
Mr Agha and Mr Coombe appealed to the Court of Appeal from the liability judgment. The appeal was partially successful: Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29 (the appeal judgment, ‘CA’). The Court of Appeal found that the primary judge had erred in finding that Mr Coombe was party to a written employment agreement in the terms identified by his Honour. The Court also found that his Honour erred in finding that Mr Coombe had breached the Corporations Act. Thus, the Court of Appeal set aside the orders concerning Mr Coombe.
This is a slightly abbreviated summary of the procedural history, but it serves to identify the substantive issues remaining in dispute between the parties.
The first concerns the quantification of the damages which the plaintiffs are entitled to recover from Mr Agha following the liability judgment. Their case is essentially that they lost the opportunity to sell and, in some cases, earn management fee income in respect of 29 properties identified in a table handed up at the hearing.
The second concerns the quantification of any damages to which Mr Coombe is entitled pursuant to the usual undertaking as to damages given to secure his initial undertakings (by which he was constrained between 22 March 2018 and 26 April 2018) and to secure the interlocutory injunctive relief initially granted by Parker J (by which he was constrained between 27 April 2018 and 4 December 2019). His case also is put as a lost opportunity case. He says that if he had not been bound by the undertakings and injunctions, he stood a chance of earning a share of the sales commissions on certain properties. He also says that the undertakings and injunctions deprived him of the opportunity to develop a successful career as a real estate agent in the inner western suburbs of Sydney by exploiting customer connections of his own.

The plaintiffs alleged that Mr Coombe was first employed as a receptionist ‘from about March 2012’ and that he ‘was offered and accepted a position employed by Devine Concord as a personal assistant to’ Mr Agha in about October 2013. In his defence filed on 13 July 2018, Mr Coombe admitted both of these allegations.
The plaintiffs also alleged that Mr Coombe ‘entered into an employment contract… in or about October 2013’: see paragraph 96 of the statement of claim. The plaintiffs’ primary case was that Mr Coombe’s contract of employment was in the form of a so-called Real Estate Employers Federation (REEF) agreement, being a standard form employment agreement used in the real estate industry. However, the particulars made clear that if Mr Coombe’s employment was not on the terms of a REEF agreement, either expressly (paragraph 96(1)) or because such a state of affairs was to be ‘implied by conduct’ (paragraph 96(2)) or because Mr Coombe was estopped from denying that he was employed on those terms (paragraph 96(3)), then he was otherwise employed ‘on the terms implied by law’ (paragraph 96(4)).
Mr Coombe denied the whole of paragraph 96.
In paragraph 97 of the statement of claim, the plaintiffs alleged that Mr Coombe was bound by a range of obligations as an employee. Some of these allegations depended solely on the existence of a REEF agreement. Others did not. Two obligations that were said to arise by reason of ‘implication of law’ (that is, by reason of being an employee even if not bound by a REEF agreement) were the obligations identified in paragraphs 97(1) and (2). These were that Mr Coombe was required to ‘be faithful to Devine Concord while an employee’ and to ‘keep confidential the Customer Information, Business Documents and other confidential information, while an employee and after his employment ceased’.
Mr Coombe admitted the first but denied the second. His position at trial was therefore that he was an employee, that he was required to ‘be faithful to Devine Concord while an employee’ but that he was not required to ‘keep confidential the Customer Information, Business Documents and other confidential information, while an employee and after his employment ended’.

It is unnecessary to repeat the extensive findings made by Sackar J as to the background of the matter and the circumstances in which Mr Agha breached his various contractual and statutory duties. It is however appropriate to observe the following matters.
Mr Agha, as noted, was a shareholder and director of Devine Concord: J[3]. As a shareholder, he was party to a shareholders agreement (as defined at J[20], the 2008 Shareholders Agreement). He was also an employee and was party to a written employment agreement executed in 2011 (as defined at J[26], the First Defendant’s Employment Agreement, also referred to in the judgment as the 2011 Employment Agreement). Both the Shareholders Agreement and the 2011 Employment Agreement contained non-compete and non-solicitation clauses. They also contained obligations concerning the use of confidential information. Sackar J found that on their proper construction, the two agreements were intended to co-exist: J[244].
There was no dispute before Sackar J that Mr Coombe had been an employee of Devine Concord. There was however a dispute about whether he ever executed a written employment contract, such as a REEF contract which is a form of employment agreement commonly used in the real estate business. This issue was important because to the extent the plaintiffs sought relief against Mr Coombe to restrain him from competing with Devine Concord and soliciting its customers, it was on the basis of the restraints contained in such an employment agreement. At general law, an employee is not subject to anti-competitive restraints of that kind.
Sackar J found that Mr Coombe did execute a written employment agreement that contained similar terms to Mr Agha’s 2011 Employment Agreement: J[382]. His Honour did so on the basis of an inference which he drew from the overall circumstances: J[384].
Sackar J made findings as to a large range of matters concerning the liability of Mr Agha and Mr Coombe. These may be divided into three categories. The first category concerned the way in which Mr Agha and Mr Coombe had systematically siphoned off customers from Devine Concord to Belle Property Neutral Bay. At paragraphs J[294] and following, Sackar J made extensive findings as to their conduct in relation to the solicitation of customers. His Honour made this category of findings with respect to specific properties. It is relevant to note two things about these findings. The first is that his Honour’s conclusions were generally expressed to be in relation to both of Mr Agha and Mr Coombe, who were at that point both defendants. Thus, at J[291] his Honour said:

In their amended statement of claim filed in 2023 for the purposes of better articulating their claim for damages, the plaintiffs identified the particular properties in respect of which they say they lost the opportunity to derive income at [102(a)].
However, in the proceedings before me the plaintiffs proceeded by reference to a different list of properties. This list consisted of a subset of the properties in relation to which Sackar J had explicitly found breaches. There were 29 properties in total. These included some that were not particularised at [102(a)] of the amended statement of claim and left out several of the properties that were set out in the amended statement of claim.
The plaintiffs’ affidavit evidence was to the same effect. That is, their evidence concerned a subset of the properties for which Sackar J had explicitly found breaches. Mr Devine gave evidence as to when such properties had been sold, the price at which they sold, the identity of the agent (if known) and whether or not Devine Concord had had an agency agreement with the client in relation to the property.
In an affidavit sworn on 7 June 2024, Mr Devine said that the plaintiffs lost the opportunity to earn the following amounts in relation to the 29 properties that were diverted:
Sales commissions of $570,741.00.
Letting fees of $10,164.00.
Management fees of $25,836.03.
Capital value (being the sale of the rent roll which I will shortly describe) of $94,887.94.
Mr Devine’s evidence was based largely on searches which he conducted on property sales websites. This evidence was overtaken by rather more reliable evidence in the form of Land Titles Office records which were tendered at the hearing. In final submissions, the plaintiffs relied on a table of damages that reflected this updated and more reliable evidence. Their final position as to the loss referable to the 29 properties was as follows:
Letting fees of $8,375.
Management fees of $23,195.70.
Capital value of $96,494.
I will set out their final evidence as to commissions in the following section.

As to the amount of lost sales commission, the plaintiffs’ final evidence showed that of the 29 disputed properties, there were sales with an aggregate value of $20,366,500 during the period within which Mr Agha was subject to his post-employment restraints. The parties agreed that the relevant restraint period was between 26 April 2018 and 26 April 2021.
If Devine Concord had acted as agent on all of these sales, if it had charged commission at the rate of 2%, and if it had been entitled to keep all of that commission without deduction, then it would have earned gross commission of $407,330 in respect of the properties sold during the restraint period. The defendant did not dispute that 2% was an appropriate rate by which to calculate lost sales commission.
Devine Concord would not however have been entitled to keep all of the commission. As Mr Devine explained, Devine Concord was and is required to split gross commission between itself, the listing agent and the selling agent under the various employment agreements with sales staff. The amount of the gross commission which it was required to share varied from agent to agent. Mr Devine said that in the relevant period, the amount of gross commission that could be retained by Devine Concord ranged between 100% (if he was the selling agent) and 46% (if Mr Agha was the selling agent). For the other three selling agents at the time, Devine Concord would have retained between 59.5% and 82% of gross commission, depending on the agent.
As to the likelihood that Devine Concord would actually have earned all of these commissions and other items of income, the plaintiffs’ evidence was couched in quite general terms. The evidence focused on the overall manner in which Devine Concord carried on business including its practices and processes in marketing and selling properties. Mr Agha did not dispute this evidence. The evidence establishes that Devine Concord was a highly professional, well-established local real estate agency with a very good reputation in the community. The evidence did not however address particular customer connections. Save in relation to the 19 properties owned or controlled by Mr Boumelhem, it has not been possible for me to form a view as to the specific likelihood that the owners of any of the other 10 properties would have continued to use Devine Concord on property sales or that they would have used Devine Concord to manage rental properties.

As to the sales which have occurred, I will proceed as the parties ultimately did by reference to NSW Land Registry Services records in relation to the 29 properties identified by the plaintiffs, being a subset of those in respect of which Sackar J made findings. Although Mr Agha’s position was that Devine was not entitled to damages in relation to lost income in relation to properties other than those in the amended pleading, his submissions did, in the end, address the issues by reference to the 29 properties to which I have referred.
As to the way in which commissions are paid to staff when rental properties are onboarded, I will proceed by reference to Mr Agha’s evidence. I will also proceed on the basis that management fees would have been 5%, not 5.94%. These all seem to be straightforward propositions that Mr Devine might have dealt with in reply but said nothing about.
As to the way in which gross sales commissions are paid to staff, I will proceed on the basis of Mr Devine’s evidence, namely that the costs to the business were fixed. In other words, I accept that Devine Concord deducted 10% as an ‘Admin Fee’ but I do not accept that that represented the actual cost to Devine Concord of selling each property. I approach the matter this way because the sales commission report to which Mr Agha referred is an internal book-keeping document. It is not evidence of costs actually incurred by the business. As to the costs incurred, I prefer to rely on the evidence of Mr Devine, whose business it is.
As to the percentage of commissions that would have been retained by Devine Concord, I will adopt the approach suggested by Devine Concord, namely I will take the average of the three agents nominated by Mr Devine.
As to the clearance rate for property sales, I accept Mr Agha’s evidence that the rate was 80%. I do not however consider that much really turns on this. The plaintiffs’ case concerns properties that actually sold, not those that were listed in the hope of a sale. In other words, the properties are all within the 80% of properties that sold. I will proceed on the basis that they would have been as likely to sell with Devine Concord as with the agent who in fact sold them. I see no reason to discount damages for the prospect that properties successfully sold by another agent were less likely to sell if sold by Devine Concord.
I do not place any weight on Mr Agha’s evidence about the likelihood of ‘prospects’ becoming ‘customers’ and the nature of customers’ relationships with Devine Concord generally. The findings which Sackar J made about the way Mr Agha manipulated precisely these kinds of relationships to his own advantage are a reason to approach his evidence about these matters with scepticism. They are all customer relationships which Mr Agha systematically sabotaged. In determining the likelihood that any of the customers would have stayed with Devine Concord, I must assume not only that Mr Agha would not have solicited them away, but that he also would not have deliberately tried to destroy Devine Concord’s relationship with them, which is what he did.

Of the 29 properties in dispute, 19 were in the Underwood Road development and were originally sold by Jaycorp Group, which was controlled by Mr Boumelhem. Mr Boumelhem gave evidence and was cross-examined at the hearing before Sackar J. He also swore an affidavit for the purposes of the assessment of damages but was not cross-examined in the hearing before me.
Jaycorp Group had originally appointed Devine Concord as selling agent in relation to various of the properties in the Underwood Road development under an exclusive agency agreement in March 2017: J[297]. Mr Agha was to be the selling agent and there is no doubt that he was the agent with whom Mr Boumelhem had contact. They had a very good relationship.
In his first affidavit, Mr Boumelhem said that he had a discussion with Mr Agha on 12 December 2017 in which he told him that he had decided to leave Devine Concord. Mr Boumelhem’s evidence was that he told Mr Agha at that point that he had no idea who Mr Devine was and that he believed Mr Agha to own the business.
Mr Boumelhem also said in that same conversation that he would continue to use Mr Agha as his agent despite Mr Agha’s post-employment restrictions. He said: ‘I don’t give a fuck about any restriction, I’m coming with you.’ He also said that Mr Devine ‘never contacted me’ and that he decided to terminate the agency agreement and ‘stick with [Mr Agha]’.
Pausing here, Mr Boumelhem’s first affidavit undoubtedly demonstrates that he had a close customer connection with Mr Agha. It also demonstrates that Mr Boumelhem had no particular antipathy towards Mr Devine personally. It says nothing about his feelings towards other Devine Concord personnel or the way they had handled his business, except that he had never heard from Mr Devine and did not know who he was.
In an affidavit sworn in September 2024, Mr Boumelhem added four additional matters. First, he said that his first affidavit gave his ‘reasons for avoiding Steven Devine and avoiding the Devine Group’. Secondly, he said that he only met Steven Devine once and it involved a short and abusive exchange in a carpark. Thirdly, Mr Boumelhem said that when he terminated the agency agreement with Devine Concord he had ‘no intention of returning to Steven Devine again’. Fourthly, he said that he did return to Devine Concord to act on the sale of one of the units in the Underwood Road development. This occurred in 2019 and the agent he used was Ms Touma, who had been at Devine Concord for several years and who was a distant relative of Mr Boumelhem’s wife.
I also note that in his evidence before Sackar J, Mr Boumelhem said that he had no intention of leaving Devine Concord until Mr Agha told him he was leaving: J[298].

The foregoing matters allow me to express my conclusions as to how Devine Concord’s damages are to be calculated. In my view, its lost income is to be worked out as follows:
First, it lost an opportunity to earn gross commission income of 2% of the proceeds of sales of the 29 properties that settled during the restraint period. Although it can be argued that Devine Concord may also have earned income on sales after this period, I consider that prospect to be too remote to be included in the calculation of loss.
Secondly, of that gross commission income, I consider that Devine Concord would have been entitled to retain 68.5% after paying a share to selling and listing staff. This is the percentage of gross commission that Devine Concord would have retained if it had used Ms Touma, Mr Mitrovich and Mr Poynting as selling agents (being the three selling agents identified in Mr Devine’s evidence other than himself and Mr Agha) and if it had paid the average rate of commission among them.
Thirdly, Devine Concord would have earned letting and management fees, subject to sharing some of these payments as described by Mr Agha (see paragraphs [67]-[68] above). However, management fees would have been calculated at 5% of yearly rental income. I accept Mr Devine’s evidence as to which properties were rented out, the amount of rent and the 50-week average occupancy rate. I consider him to be better placed to give evidence as to how management fees would have been calculated.
Fourthly, the price which The Agency paid to acquire the rent roll would have included an amount for the properties referred to in the previous paragraph that would have been on the rent roll at that time. The amount would have been calculated by a four-times multiple on the annual management fees and on a 52-week term, just as it was for the balance of the rent roll.
Next, it is necessary to determine the chance that Devine Concord would actually have earned this income. This is a task that requires me to consider a hypothetical world in which Mr Agha did not steal client lists and in which he did not set up in competition with Devine Concord. The hypothesis also involves Mr Agha not setting out to sow the field with salt by tampering with Devine Concord’s business records. I will instead hypothesise that Mr Agha would have acted honourably.
The only customer about whom the evidence allows me to draw firm conclusions is Mr Boumelhem, whose evidence is described above. Mr Agha especially relies on what Mr Boumelhem said in his second affidavit. However, it is difficult to know what to make of that evidence. It seems most unlikely that the antipathy towards Mr Devine which he described in that affidavit existed at the time Mr Agha left the agency. As at December 2017 he did not even know who Mr Devine was. At the time of the first affidavit he said nothing more than that Mr Devine had not contacted him and that he wanted to follow Mr Agha. It seems likely that the antipathy that developed towards Mr Devine did so over the time these rather rancorous proceedings have been on foot. So far as the carpark incident is concerned, I note that Mr Boumelhem did not say when it occurred. Further, as much as Mr Boumelhem proclaims his general antipathy towards Mr Devine, he nevertheless used his agency again in 2019. He did not explain why he did not ask Mr Agha to act as agent on that occasion.
It does seem unlikely that all of Mr Boumelhem’s business would have stayed with Devine Concord. But I do not consider this prospect to be fanciful. In early 2018, Devine Concord was a well-established and reputable agency. Mr Boumelhem had already signed an agency agreement with Devine Concord and he had no thought of leaving it until he was solicited away by Mr Agha. He may not have known who Mr Devine was, but that hardly seems a reason for him to have left if Mr Agha had not set up in competition. His lack of knowledge of Mr Devine had not stood in the way of engaging Devine Concord previously. Nor did his proclaimed antipathy towards Mr Devine stand in the way of him engaging Devine Concord in later years.
On balance, I consider that there was a good chance, although not an even chance, that Devine Concord would have kept Mr Boumelhem’s work if Mr Agha had left without breaching the terms of his employment agreement. I estimate the chance to be 35%.
As to the remaining properties, the evidence does not allow me to determine the chance of any individual customer staying with Devine Concord. In contrast to Mr Boumelhem and the Jaycorp Group, the remaining properties appear to be owned by individuals. The evidence does however allow me to reach a general conclusion about the chance of all 10 other customers staying. In my view, there was about an even chance of this happening. I reach this conclusion because as already mentioned, Devine Concord was a well-established and reputable agency with whom these other 10 customers had already established a connection. There is no evidence that they were dissatisfied with the agency generally or Mr Devine (or any other staff member) specifically. They no doubt also had a connection with Mr Agha, which is why Mr Agha ultimately ended up being involved in the sale of their properties after he left Devine Concord. But, unlike Mr Boumelhem, Mr Agha has chosen not to call them. I am not prepared to infer that they had a relationship with Mr Agha that was as close as Mr Boumelhem’s. I estimate the chance of all of them staying to be 50%.
My conclusion that there was a 50% chance of these customers staying implies not only that these customers would have used Devine Concord as a selling agent but that in the case of customers with rental properties, that they would have used Devine Concord as rental agent also.
Finally, although there was very little said about this issue at the hearing, I do not see why it is appropriate to take GST into account in calculating Devine Concord’s loss.
I will direct the parties to bring in short minutes of order reflecting these conclusions.

I therefore do not consider that the undertakings and injunctions had any material impact on the career options available to Mr Coombe in 2018. Mr Coombe was already an employee of Belle Property Neutral Bay and was Mr Agha’s assistant as of 22 March 2018 when the undertakings were given. He did not say that he had been considering some other position but, if he had been, he would have been free to pursue it. The only constraint (at least the only restraint attributable to his undertakings, as opposed to his general law obligation not to misuse Devine Concord’s confidential information) was that he could not be involved in the sale of certain properties, but that limited restraint only remained in place for about a month.
It is difficult to see how, as a practical matter, Mr Coombe could have gotten himself involved in the sale of any of the 29 properties – and earned a share of the commission – between 22 March and 20 April 2018 even if he had never been subject to the undertakings and injunctions. If there was a way of doing so without using Devine Concord’s confidential information, which I doubt, then I do not see why the undertaking prevented it.
Once the undertakings were replaced by the injunctions on 20 April 2018, the only thing Mr Coombe could not do was exploit Devine Concord’s confidential information for his own or anyone else’s benefit. However, as I have explained, that was hardly more onerous than the burden placed on any former employee with access to confidential information.
Mr Coombe submitted that his claim for damages on the undertaking was, in a sense, the mirror image of – or a complement to – the plaintiffs’ claim to damages against Mr Agha. By this he meant, essentially, that any gross commissions which Devine Concord may have lost the opportunity to earn would have to have been split with a selling agent and that he, Mr Coombe, was as likely as anyone to be that selling agent.
I agree that Devine Concord would have been required to split the gross commission with selling and listing agents. But I disagree that there was ever a realistic prospect that any agency would have split commission with Mr Coombe in the circumstances. I say that for four reasons.
First, the hypothesis here is only as to what would have happened if the undertakings and injunctions had never been in place. The hypothesis otherwise involves Mr Coombe doing all the things that Sackar J found him to have done, including being involved in the theft of confidential client lists and the diversion of clients to Belle Property. It also involves him still being a defendant in the proceedings. Furthermore, the hypothesis involves the existence of undertakings and injunctions concerning Mr Agha, who was the star to whom Mr Coombe had well and truly hitched his wagon. I consider it highly unlikely that anyone at Belle Property Neutral Bay or anyone else would in those circumstances have been willing to share with Mr Coombe any part of the sales commission in relation to properties that were the subject of these proceedings even if he was not subject to the undertakings and injunctions.
Secondly and relatedly, Mr Coombe was still a junior employee. He received very little as a share of commission even when assisting Mr Agha at Devine Concord. As far as I can tell from the evidence, he received none of the commission earned by Belle Property Neutral Bay on the sale of any property. The idea that this would have changed overnight and that he would have earned a material slice of the sales commission on any of the 29 properties that were the continuing subject of the litigation is fanciful.
Thirdly, he left the country. Furthermore, he did so on the basis of a fundamental misunderstanding of what the undertakings and injunctions prevented him from doing. As I see it, he chose not to exploit his inner west real estate connections after March 2018, despite being free to do so.
Fourthly, even if the undertakings did prevent Mr Coombe from developing his own independent customer connections in relation to the vendors of certain properties, those undertakings only remained in place for about a month until they were replaced with the injunctions. On no view did the injunctions prevent him from either working in the inner west or exploiting his own customer connections, including in respect of other properties. Yet he took no steps to do so when the undertakings fell away.
Mr Coombe relied on other evidence that shows he was a good employee and that he could have expected to enjoy professional progress. He relied on evidence from Ms Jacqueline Jones who had first employed him at Devine Concord and who gave very positive evidence about his ability and general prospects. She expressed the opinion that:

Devine Real Estate Concord Pty Limited v Agha

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Some additional aspects of the procedural history

Pleadings in relation to Mr Coombe’s employment

The undertakings and orders against Mr Coombe in more detail

Findings made by Sackar J

The Court of Appeal decision

The plaintiffs’ claim for damages

Applicable principles

The plaintiffs’ evidence as to damages

Sales commissions

Management and letting fees

Capital value

Mr Agha’s evidence

Letting and management fees

Sales commissions

Other evidence

Conclusions as to Mr Agha’s evidence

Mr Boumelhem

Conclusions

Mr Coombe’s claim to damages

Applicable principles

ORDERS

Parties

Cases Cited (7)

Cited By (1)