Devine Real Estate Concord Pty Ltd v Agha [2023] NSWSC 359 | Case summary

The litigation history

The matter was heard by Sackar J by reference to a statement of claim filed on 30 May 2018 (the SOC) and an amended defence dated 7 August 2018 (the Amended Defence).
The SOC pleaded this case against Mr Coombe: "… 94. Coombe was employed in the office of Devine Concord as a receptionist from about March 2012. 95. In about October 2013, Coombe was offered and accepted a position employed by Devine Concord as a personal assistant to Agha. 96. Coombe and Devine Concord entered an employment contract ("Coombe Employment Agreement") in or about October 2013: (1) in writing in the form of the then applicable REEF agreement [Real Estate Employers' Federation]. (2) alternatively, partly in writing and partly oral and partly implied by conduct. Particulars … (3) alternatively, in the circumstances, Coombe is estopped from denying he was a party to an employment contract on the terms of the ten applicable REEF agreement. Particulars … (4) alternatively, on the terms implied by law. 97. It was a term of the Coombe Employment Agreement that Coombe would: (1) be faithful to Devine Concord while an employee. Particulars Implication of law; Clauses 4.1(a), (c), (h) and 5.1(a), (e) of REEF agreement. (2) keep confidential the Customer Information, Business Documents and other confidential information, while an employee and after his employment ceased. Particulars … (3) Immediately notify Devine Concord of any suspected or actual unauthorised use, copying or disclosure of confidential information, while an employee and after his employment has ceased. Particulars … (4) Provide reasonable assistance to Devine Concord requested by Devine Concord in relation to any proceedings Devine Concord may take against any person for unauthorised use, copy or disclosure of confidential information, while an employee and after his employment ceased. Particulars … (5) until about 27 September 2018, or such lesser period as is a reasonable time, not solicit or accept any instructions from any customer of Devine Concord. Particulars … (6) until about 27 September 2018, or such lesser period as is a reasonable time, not be engaged or concerned in whether as an employee or otherwise in carrying on any business for anther business engaged in providing real estate services within 7.5km of 65 Majors Bay Rd Concord. Particulars … (7) until about 27 September 2018, or such lesser period as is a reasonable time, not condone any other person by which he is engaged to engaged [sic] in conduct which if he did it personally would be in breach of clause 18 of the REEF agreement. Particulars … 98. Pursuant to the Corporations Act 2001 (Cth), while an employee of Devine Concord Coombe was under a duty not to improperly use his position to gain an advantage for himself or someone else or to cause detriment to the company. Particulars … 99. Pursuant to the Corporations Act 2001 (Cth), while an employee of Devine Concord and after his employment ceased, Coombe was under a duty not to improperly use information obtained because of his position, to gain an advantage for himself or someone else or to cause detriment to the company. Particulars … 100. At all material times while an employee of Devine Concord and after his employment ceased, Coombe owed Devine Concord an equitable duty to keep Devine Concord's information, which he knew or should have known was confidential information. 101. In breach of his various duties pleaded herein, Coombe has: (1) used his position to without consent or authority, copy and remove confidential information of Devine Concord and failed to notify it he had done so. Particulars … (2) while an employee, acted against good faith and against the interests of Devine Concord. Particulars … (3) failed to notify Devine Concord of suspected or actual unauthorised use, copying or disclosure of confidential information, while an employee and after his employment ceased. Particulars … (4) taken, used and disclosed confidential information of Devine Concord to the detriment Devine Concord and for the purpose of his own gain or benefiting other persons. Particulars … (8) has solicited, attempted to solicit and accepted appointment from customers of Devine Concord. Particulars … (9) has been engaged or concerned in whether as an employee or some other capacity in carrying on a business for another business engaged in providing real estate services within 7.5km of XX Majors Bay Rd Concord. Particulars … (10) knowingly assisted or was concerned in the breach by Agha of Agha's obligations in using and disclosing confidential information of Devine Concord and competing with Devine Concord. Particulars … Loss and damage to the plaintiffs and gain to the wrongdoing fiduciaries 102. Agha's and Coombe's breaches of duty have caused the plaintiffs loss and damage. Particulars … 104. Coombe's breaches of duty have resulted in gain to him. …"
The Amended Defence pleaded: "… 94 Paragraph 94 is admitted. 95 Paragraph 95 is admitted. 96 Paragraph 96 is denied. 97 As to paragraph 97, the allegations in subparagraph (1) are admitted, but otherwise the balance of the allegations are denied. 98 Paragraph 98 is admitted. 99 Paragraph 99 is admitted. 100 Paragraph 100 is not admitted. 101 Paragraph 101 is denied. 102 Paragraph 102 is denied. … 104 Paragraph 104 is denied. 105 Paragraph 105 is admitted. …"
For present purposes, the salient matter to note is that the defendants put in issue the terms of Mr Coombe's employment agreement with the exception that it was admitted that Mr Coombe's employment agreement, at least by implication of law, contained a duty of fidelity while he was an employee. This pleading foreshadowed what became a hotly contested matter at the hearing before Sackar J, being whether Mr Coombe had ever executed a written employment agreement in the form of what was pleaded as the "then applicable REEF agreement".
On 4 May 2018, Sackar J made consent orders which included: "… 4. Pursuant to UCPR rule 6.7 and 28.2, the question of liability on the plaintiffs' claims and on any cross claims, including the making of any final injunctions, be determined separately and before the plaintiffs' claims for the taking of accounts and any assessment of damages and compensation. …"
The two rules referred to in the order are: "6.7 Determination The court may, on the first or any later day of hearing - (a) hear and determine the proceedings or any claim in the proceedings, and (b) make such order or give such judgment as the nature of the case requires. … 28.2 Order for decision The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings. …"
Sitting as Expedition Judge, Sackar J heard the proceedings pursuant to Order 4 set out in [15] above between August 2018 and June 2019, delivering his reasons on 28 June 2019: Devine Real Estate Concord Pty Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786 ("the Primary Judgment"). I begin by referring to the following preliminary paragraphs of the Primary Judgment: "28. In approximately March 2012 the Second Defendant commenced employment with the Devine Group (CB 223). It is contested whether the Second Defendant ever signed an employment agreement with the Concord Office of the Devine Group. … 30. In October 2013, the Second Defendant became a sales assistant to the First Defendant. It was in this way that the First and Second Defendants continued to be employed as part of the Devine Group up until late 2017, when the relationship between the Plaintiffs and Defendants evidently broke down. … 36. On 23 November 2017 4:48pm the Second Defendant (on one view) emailed his personal email address two excel spreadsheets containing contact lists for himself and Ms xxxxxx Touma (CB 938, 6259). This was in response to the First Defendant emailing him on 15 November 2017: "Lew, can you please print these so we can go through which contacts are yours and mine?" 37. However it is contested whether the Second Defendant himself caused these emails to be sent. …"
Sackar J ultimately found that Mr Coombe did the things referred to in [36] and [37] of the Primary Judgment.
I next set out those paragraphs of the Primary Judgment upon which Mr Sirtes SC relied for the proposition that these included findings which remained open (that is to say, unaffected by the subsequent decision of the Court of Appeal) upon which the plaintiffs were entitled to pursue Mr Coombe in relation to damages: "… 66. The Plaintiffs' case is that in the balance of February 2018 the First Defendant, with the assistance of the Second Defendant, continued to trade in respect of properties in the Concord area via Belle Property in Neutral Bay (CB 2459-2850). The Plaintiffs suggest that the arrangement with Belle Property in Neutral Bay was a "fig leaf" to cover the fact that the First Defendant was actually operating in the Concord area despite contractual restraints. … 68. On 5 February 2018 the Second Defendant sent to Belle Property a Dropbox link containing "our property files and marketing items from the 'N' drive" (CB 2364). … Breach 84. The Plaintiffs likewise assert the Second Defendant owes obligations of confidentiality to the First Plaintiff, derived from the general law, statute and post-termination restraints to be implied into his employment with the Devine Group (outline submissions [124]-[125]). Particularly, the Plaintiffs focus on clause 6 of the Shareholders Agreement and clause 14 of the Employment Agreement as providing contractual obligations of confidentiality which they allege the First Defendant breached by disclosing client lists (submissions [636]-[658]). … 102. The Second Defendant also denies entering into an employment contract on the terms alleged by the Plaintiffs, and reject any suggestion that he has breached his duties, committed a serious criminal offence or contravened the Corporations Act 2001 (Cth) (submissions [293]-[351]). The Defendants submit that there has also been a contracting out of the Corporations Act 2001 (Cth) (submissions [93]-[99]). … Factual findings on breach: confidential client lists 271. I am satisfied both the Defendants engaged in breaches of confidential information by sending confidential client lists to their personal email addresses prior to terminating their employment with the Plaintiffs. … 274. Furthermore, the information taken from the Plaintiffs by the Defendants was in my view innately confidential, absent any provisions of the Shareholders Agreement and Employment Agreement. It is patent on the face of the materials, that client lists and client details are crucial to the profitable conduct of a real estate business. … 276. On 23 November 2017 the Second Defendant likewise emailed two excel spreadsheets to his personal email address (CB 938, 6259). 277. In my view, there can be no serious suggestion that these emails were not sent by the Defendants and there is no real prospect that any of them were somehow 'spoofed'. The timing of the emails places them squarely at a point when the Defendants desired to leave the Devine Group and were communicating with each other and other employees about contact lists. The expert report of Mr Khoury in my view provides persuasive, but not definitive, evidence that the email of 23 November 2017 was sent by the Second Defendant. 278. Therefore, I am more than satisfied that the Defendants engaged in breach of the Plaintiffs' confidential information and both sent confidential client lists to their personal email addresses in breach of the above sections of the Employment Agreement. To suggest otherwise is contrary to the contemporaneous materials. Further, to suggest somehow some other person sent these emails using the Defendants' accounts defies logic and is highly unlikely, as it was only the Defendants who would have any motivation to send contact lists to them. … 280. There is no sensible suggestion that can be made that the client lists and business information sent by the Defendants should not be characterised as "confidential information". This is expressly contrary to the definition of "Confidential Information" in the Employment Agreement and also the inherently sensitive and confidential nature of client lists, business information and similar private information used by the Plaintiffs to develop their business. In my view the Defendants' suggestion that none of the information sought to be protected by the Plaintiffs was/is confidential is misguided and contrary to the express terms of the Employment Agreement and Shareholders Agreement. … Factual findings on breach: diversion of properties … 291. Generally, I am satisfied that the Defendants engaged in breach by siphoning customers from the Devine Group to their new employer Belle Property. The clearest indication of this is the trail of contemporaneous materials that demonstrate that a property owned by a Devine Group client would come in and do some business with the First Defendant and/or become a contact of the Plaintiffs, and then come out again and follow the Defendants into the Belle Property group. 292. This constitutes breach of the restraints of trade mandated by clause 10 of the Shareholders Agreement and clause 19 of the Employment Agreement. By developing these properties for Belle Property, the Defendants exploited the confidential client lists of the Plaintiffs to their personal advantage and not to the advantage of the Plaintiffs, again also in breach of the confidentiality requirements of the Shareholders Agreement (for the First Defendant) and the Employment Agreement (for both Defendants). … 301. In my view this constituted a breach by the Defendants by diverting a client of the Plaintiffs away to Belle Property. I am willing to find the contractual breaches sought by the Plaintiffs. … 311. In my opinion, in the balance of probabilities, it is appropriate to consider these vendors as clients and/or customers of the Plaintiffs. Their prior contact with the Plaintiffs was clearly the basis for their relationship with the First Defendant, and there was clearly a customer connection between them and the Plaintiffs. … Second Defendant's position 381. It is an admitted fact that the Second Defendant was under an obligation of faithfulness to Devine Group while he was an employee (SOC [97(1)], Defence [97]). … 385. Whilst this is not a conspiracy case, the overwhelming inference is that the First Defendant and Second Defendant were working assiduously together to divert as much business as possible from the Plaintiffs towards themselves. In this context I infer that that the version of the Employment Agreement executed by the Second Defendant was taken from the Devine offices, again to pursue this aim of diverting business and subverting the interests of the Plaintiffs. … 388. The Plaintiffs also seek remedies against the Defendants for breach of equitable duties and their duties under ss 181-183 of the Corporations Act 2001 (Cth) including an order for compensation under s 1317H of the Corporations Act 2001 (Cth) (submissions [675], [714] SOC [22]-[23]). The Defendants did not clearly deal with this issue in their submissions save to suggest that the Plaintiffs have failed to establish either of the Defendants committed a serious criminal offence. … 411. The Second Defendant should be restrained for 12 months in the maximum 6 kilometre radius mentioned in the Employment Agreement. He is not nor could he be bound by the Shareholders Agreement. …"
Because it is relevant to what occurred next, I also extract these paragraphs of the Primary Judgment: "… 293. As this judgment is intended to determine the precise issues of liability (not damages) in my view it is appropriate to set out the particular properties identified by the Plaintiffs and make findings in respect of each as to breach. … 382. In my view, the Second Defendant is bound by the same Employment Agreement entered into by the First Defendant. The evidence of Ms xxxx Mazzei called for the Plaintiffs was to the effect that it was the usual practice of her office to ensure new employees entered into an employment agreement. When it came time for her to retrieve the Second Defendant's agreement from the office it was missing. Her evidence which I accept is that such an agreement was executed by the Second Defendant but removed from the Plaintiffs' files in all likelihood. 383. It was not suggested, nor is there any evidence, that the Devine offices are conducted in a shambolic fashion. The evidence is that employees are allocated specific employment documents. They are routinely and systematically executed and filed in an orderly way. There is no reason to suppose this did not occur with the Second Defendant's employment contract. There is no suggestion on the evidence that the Plaintiffs employed persons on the basis of an oral agreement followed by a handshake. 384. Given my above factual findings as to the seriousness of the breach of the Defendants and the systematic way in which they went about disrupting the Devine Group including the sabotage of the telephone numbers, I consider I am able to draw the inference that the Second Defendant did execute a version of the Employment Agreement that protected against breach of confidential information (including client lists and business information) and effected a restraint period of 12 months. … 391. In my view the question of compensation under s 1317H of the Corporations Act 2001 (Cth) goes to damages not liability. I do not propose to deal with it in this judgment, particularly as it was not the subject of substantial analysis by either of the parties. 392. In my view it is hard to see how the invocation of the Corporations Act 2001 (Cth) adds further depth to the Plaintiffs' argument, particularly as it was not developed in any detail in oral argument. However, given my findings above, and the clear wording of s 183 of the Corporations Act, it is clear that both Defendants did obtain information which they used "improperly" to both "gain an advantage for themselves or someone else" and also "cause detriment to the corporation". I propose to make a finding of breach of s 183 of the Corporations Act 2001 (Cth) and a resulting declaration under s 1317E. Again, although I do not see how it adds further to the Plaintiffs' case on restraint of trade, I am willing to find both Defendants breached ss 181 and 182 of the Corporations Act 2001 (Cth) relating to good faith and misuse of position given the egregious conduct of both and declare in the appropriate form accordingly. 393. As to the opaque reference to breach of "equitable duties" I do not propose to make any finding or grant any final injunction or declaration to the effect of protecting against breach of equitable duties. My findings as to breach have already been sufficiently identified above, and any reference to imprecisely framed "equitable duties" has not been sufficiently identified by the Plaintiffs. …"
Although his Honour delivered the Primary Judgment on 28 June 2019, orders to give effect to the Primary Judgment were not made until 4 December 2019. Those orders imposed several restraints on Mr Agha. The orders relevant to Mr Coombe were: "… 5. A declaration that the "restraint period" contained in clause 19.2 of the employment agreement dated 20 April 2011 between Concord and Mr Agha (the "EA") means "three (3) years" and is, as regards its application to Mr Agha, altogether valid for a period of three (3) years, with effect from 26 April 2018, and "Competitor" means any business engaged in providing real estate agency services within a radius of 6 kilometres from the office of the first defendant. 6. A declaration that Mr Coombe is bound by the same EA entered into by Mr Agha. … 9. A declaration that Mr Coombe breached the Corporations Act s.181-183. … 11. The matter be re-listed so as to deal with future timetable of the damages case and as to costs in the proceedings. 12. Note that there is no further case for expedition. … 14. The proceedings be re-listed so that the parties may make their submissions as costs, programming of the Damages proceedings and to the making of these orders. …"
There was no issue that his Honour's orders were the product of discussions between the parties. What is significant for present purposes is that I was not taken to any form of order contended for by either party which his Honour did not make, but which it was suggested might cast any light on the present issues. In other words, the orders which his Honour made did not involve the rejection of any other order which a party had asked him to make to give effect to the Primary Judgment.
This is an important point. The orders made by Sackar J reflect, in this respect, the reality of what was the hotly disputed matter between the parties, being whether Mr Coombe was bound by an employment agreement to the same effect as Mr Agha. His Honour observed in [84] of the Primary Judgment (set out in [19] above): "Particularly, the Plaintiffs focus on clause 6 of the Shareholders Agreement and clause 14 of the Employment Agreement as providing contractual obligations of confidentiality which they allege the First Defendant breached by disclosing client lists (submissions [636]-[658])." As against Mr Coombe, Devine's focus was to prove that he was bound by, and in breach of, terms to the same effect as the Employment Agreement.
His Honour undoubtedly made a number of findings of breach of the Employment Agreement by both of the defendants. Given those findings, it is also understandable that his Honour made the declaration "that Mr Coombe is bound by the same EA entered into as Mr Agha". With the benefit of that declaration, the various findings by Sackar J of breach by Mr Coombe of that agreement could be visited upon Mr Coombe in any subsequent damages hearing.
For whatever reason, but I will infer because this was simply not a matter to which the parties gave any attention, the plaintiffs sought no orders in relation to breach by Mr Coombe of his admitted common law duty of fidelity. The evident reason for this is because while his Honour noted the admission in [381] of the Primary Judgment (set out in [19] above), his Honour's findings were focused upon breaches of what was referred to in order 5 made on 4 December 2019 as the "EA". In other words, it does not appear that his Honour was asked to make any findings expressly by reference to Mr Coombe's admitted common law obligation of fidelity and, as appears from the Primary Judgment, no such findings were made.
On 20 December 2019, the defendants filed a notice of intention to appeal which was expressed to be in relation to "whole decision below".
On 4 March 2020, the defendants filed a summons seeking leave to appeal, again expressed to be in relation to "whole decision below" and seeking "leave to appeal from the whole of the decision below".
The summons included a notice of appeal also dated 4 March 2020 which I was informed was never filed because, in granting leave to appeal, the Court of Appeal made no order requiring the notice of appeal to be filed. Nevertheless, the proposed notice of appeal was expressed to be in relation to "whole decision below" and included under "details of appeal" that "the appellant [sic] appeals from the whole of the decision below". Among the orders sought in the notice of appeal were: "3. Judgment of the court below set aside. 4. The plaintiffs' claims in the court below dismissed with costs."
The proposed notice of appeal contained 18 grounds, the most pertinent to Mr Coombe being: "3. The Court below erred in finding the 2nd appellant had entered into a contract of employment containing terms as pleaded, which pleading was denied, absent tender of any document purporting to be such a contract, original or copy. The Court erred in making that finding (1) by accepting the respondents' explanation that the reason for the failure to tender any original document was because the appellants had stolen it; (2) by failing to give proper weight to the evidence an electronic copy existed coupled with the unexplained failure to tender that copy into evidence; and (3) by failing to give adequate reasons. Instead, the Court should have found the respondents failed to discharge the burden of proof. 4. The Court below denied the 2nd appellant procedural fairness and erred in finding the 2nd appellant breached terms of employment by sending documents by email on 23 November 2017. The Court (1) failed to give proper weight to the break in the chain of custody of real evidence upon which expert opinion evidence was based; (2) failed to give proper weight to the absence of authenticity of real evidence upon which expert opinion evidence was based; (3) wrongly admitted opinion evidence absent evidence that witnesses had specialised knowledge within the meaning of s.79 of the Evidence Act 1995; (4) failed to exercise any discretion pursuant to ss.135 or 136 of the Evidence Act 1995; (5) misapprehended the opinion evidence about how electronic information may be electronically transmitted; (6) found what was transmitted was a list of customers when in fact it was a list of persons with whom the respondents had not traded; and (7) failed to give adequate reasons. …"
The Court of Appeal heard the appeal on 23 July 2020. Its decision was delivered on 9 March 2021: Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29 ("the Appeal Judgment").
The orders made on 9 March 2021 by the Court of Appeal to give effect to the Appeal Judgment were: "(1) The appeal of the first appellant be allowed in part. (2) The appeal of the second appellant be allowed. (3) Set aside orders 5, 6 and 9 made on 4 December 2019. (4) The appeal of the first appellant be otherwise dismissed. (5) The respondents pay the second appellant's costs of the appeal so far as those costs concern only the claims of the second appellant. (6) The first appellant pay the respondents' costs of the appeal, not including costs referable only to the claims of the second appellant."
It will be noted that the two specific declarations made in relation to Mr Coombe were set aside. Notwithstanding the prayers in the unfiled notice of appeal reproduced in [28] above, no application was made to the Court of Appeal on behalf of Mr Coombe for an order that Devine's claim against him also be dismissed with costs.
The Appeal Judgment comprised a judgment by White JA with whom Payne and McCallum JJA agreed.
White JA's judgment included: "3 On 4 May 2018 the primary judge ordered that the question of the defendants' liability on the plaintiffs' claim, including the making of final injunctions, be determined separately and before the plaintiffs' claims for the taking of accounts and any assessment of damages and compensation. 4 The respondents do not oppose the grant of leave to appeal. Leave should be given. 5 Although only declaratory relief has been granted against Mr Coombe, the effect of at least one of the declarations made concerning him would be to render him liable to pay damages. … 37 The primary judge made detailed findings as to steps taken by Mr Agha to act on the sale of properties of former clients of the Devine Group through Belle Property. The primary judge also made findings in respect of steps taken by Mr Coombe, after he had left his employment with Devine Group, to act for former clients of the Devine Group in his new employment with Belle Property. Neither Mr Agha nor Mr Coombe challenges those findings. 38 Mr Agha does not dispute that he entered into an employment agreement with Devine Concord as well as the shareholders' agreement. He challenges the validity of the restraint of trade clauses in those agreements. 39 Devine Concord contended that it entered into an employment agreement with Mr Coombe containing similar terms for its protection against disclosure or use of confidential information and post-employment constraints on competition as were contained in Mr Agha's employment agreement as set out above. Mr Coombe denied that he entered into such an employment agreement. No employment agreement signed by Mr Coombe was tendered. Mr Coombe challenges the primary judge's findings that he entered into an employment agreement with Devine Concord that included a restraint of trade clause and he challenges the validity of that clause if it be found that he did enter into such an agreement. … 41 The primary judge found that Mr Coombe: • breached his duty to maintain the confidence of Devine Concord's confidential information by sending confidential client lists to his personal email address (J [271]-[274], [276]-[278], [392]); • was bound by the same terms (so far as relevant) of an employment agreement as that which bound Mr Agha (J [382]-[387]); and • breached those terms by diverting existing clients of the Devine Group to Belle Property (J [291], [294], [301], [307], [308], [320], [322], [329], [333], [336], [343], [346], [349], [352], [355], [358], [362], [367], [370]-[371], [374]-[375]). 42 Neither Mr Agha nor Mr Coombe gave evidence. 43 The primary judge did not make a finding that Mr Agha or Mr Coombe used Devine Concord's confidential information in their dealings with the existing clients of the Devine Group. … 78 But the material fact that the respondents alleged was that Mr Coombe entered into an employment agreement with Devine Concord that included the restraints against post-employment activities and provision for protection of confidential information that were contained in the then applicable form of employment contract provided by the Real Estate Employers Federation ("REEF") at the time Mr Coombe accepted a position as personal assistant to Mr Agha. 79 The respondents were not required and not entitled to plead the evidence upon which they would rely to seek to prove that Mr Coombe entered into such a contract. … 84 Ms Tara Mazzei was the human resources manager for five offices of the Devine Group. She commenced employment in March 2016. She deposed that the Devine Group is a member of the Real Estate Employers Federation and through that membership had access to a range of products, including employment agreement templates. She exhibited the form of REEF Contract as at late 2012 (the December 2012 REEF Contract). It contained the same definition of "Confidential Information" as was contained in Mr Agha's employment agreement and the same provisions for the protection of Confidential Information. It also contained a restraint of trade clause, albeit a clause that provided for different Restraint Periods and different radii for the operation of the restraint. … 88 Ms Mazzei did not give any evidence of having previously had occasion to check Mr Coombe's file or of having previously seen an employment agreement to which he was a party. It can be inferred from Mr Coombe's request to Ms Mazzei as to whether she had a copy of his employment contract that he believed that he had signed an employment contract. But the evidence of Mr Devine establishes that Mr Coombe did sign an employment agreement in March 2012 when he was employed as a receptionist. There is no reason to think that that employment agreement would have contained a restraint of trade clause, or the clause for protection of confidential information contained in Mr Agha's employment agreement. … 93 With respect, the primary judge's findings "as to the seriousness of the breach of the Defendants", do not justify a finding that Mr Coombe executed an employment agreement containing contractual restraints against competition and for protection of client information, but that that agreement was removed from the files of the Devine Group. First, Ms Mazzei's evidence was that employment contracts were stored in a locked filing cabinet in her office at the Strathfield office of the Devine Group, not the Concord office from which Mr Coombe worked. It would require extraordinary bravado for Mr Coombe to raid Ms Mazzei's office at Strathfield to attempt to gain access to his employment contract that was kept in a locked filing cabinet, even if he knew where the contract was stored. … 97 Mr Coombe did send confidential client lists to Mr Agha, but at the time he did so Mr Agha was his immediate boss and there is no evidence that he was doing anything other than acting on his superior's direction. 98 The primary judge's factual finding as to the seriousness of the breaches by Mr Coombe of his employment agreement by soliciting clients of the Devine Group assumes that Mr Coombe was bound by the restraints against competition, which in turn assumes that he entered into an employment agreement which included the restraints. The primary judge's finding that Mr Coombe was working assiduously with Mr Agha to divert as much business as possible from the Devine Group towards themselves (J [385]) cannot support a finding that Mr Coombe entered into a contract which precluded his doing so. … 100 The primary judge erred in finding that Devine Concord had established that Mr Coombe had entered into an employment agreement containing the same relevant terms as Mr Agha's employment agreement. … 117 Ground 6 of the notice of appeal challenged the primary judge's finding that Mr Agha and Mr Coombe breached contractual obligations of confidentiality by sending confidential client lists to Mr Agha's personal email address. 118 My conclusion that the primary judge erred in finding that Mr Coombe entered into an employment agreement containing the term for the protection of confidential information on which the respondents relied means that this ground need only be considered in Mr Agha's appeal. … 120 The primary judge found that the defendants sent confidential client lists to their personal email addresses prior to terminating their employment with the plaintiffs (J [266] and [271]). … 171 No specific ground of appeal addressed these declarations. But in the course of oral argument the question was raised as to the appropriateness of the declaration in order 9 that Mr Coombe had breached ss 181-183 of the Corporations Act 2001 (Cth). Mr Coombe was an employee of Devine Concord, but not an "officer" of Devine Concord within the meaning of ss 181- 183 (s 9, definition of "officer"). … 172 The statement of claim alleged that Mr Coombe breached ss 182 and 183 of the Corporations Act (statement of claim, paras 98-101). (In para 99 of the statement of claim the respondents pleaded that while an employee of Devine Concord and after his employment ceased Mr Coombe was under a duty not improperly to use information obtained because of his position to gain an advantage for himself or someone else, or to cause detriment to the company. The "Particulars" to para 99 referred to s 182 of the Corporations Act, but that was evidently a typographical error and the reference was intended to be to s 183.) 173 The breaches of ss 182 and 183 alleged against Mr Coombe included that he had used his position to copy and remove confidential information of Devine Concord and failed to notify Devine Concord that he had done so (para 101(1), (2) and (3)), and that he had taken, used and disclosed confidential information of Devine Concord to its detriment and for the purpose of his own gain or benefiting other persons by disclosing confidential information to Mr Agha's business associates with Belle Property (para 101(4)). 174 However, the primary judge made no finding that Mr Coombe had used or disclosed confidential information other than by sending confidential information to Mr Agha whilst both he and Mr Agha were employees of Devine Concord. There was no notice of contention. 175 The respondents alleged that Mr Coombe had failed to notify Devine Concord of suspected or actual unauthorised use, copying or disclosure of confidential information while an employee and after his employment ceased (para 101(3)). 176 There was no finding that Mr Coombe suspected or knew of unauthorised use of confidential information whilst an employee of Devine Concord. To the extent the allegation related to his post-employment conduct, it could not have been a breach of s 182 and it would not fall within s 183. 177 It was also alleged that Mr Coombe had solicited customers from Devine Concord and had been engaged in carrying on a competing business. But these allegations were only established in respect of Mr Coombe's postemployment activities and would not constitute a breach of either ss 182 or 183. 178 Finally, it was alleged that Mr Coombe had knowingly assisted or been concerned in the breach by Mr Agha of Mr Agha's obligations in using and disclosing confidential information of Devine Concord and competing with Devine Concord. That allegation was raised only as a particular of a breach of s 182 or s 183 of the Corporations Act. There was no finding of any such conduct while Mr Agha was an employee (which would have constituted a breach of s 182). While such conduct might amount to a breach of s 183, the primary judge made no finding that Mr Agha had used and disclosed confidential information of Devine Concord. Knowing assistance by Mr Coombe in the breach by Mr Agha of Mr Agha's obligations not to compete with Devine Concord would not be a breach of s 183. The respondents did not sue Mr Coombe in tort for knowingly assisting Mr Agha's breach of contract."
As noted in the summary set out at [8] above, Mr Agha's application for special leave to appeal to the High Court was dismissed on the papers on 7 October 2021.
The next relevant step was the notice of motion filed by the plaintiffs on 29 March 2022 for leave to reopen the case that had been brought under the Corporations Act 2001 (Cth). This was a different part of the case to that which Devine now says still remains open to it (and therefore not requiring leave to reopen).
The motion to reopen was dismissed by Sackar J in the Reopening Judgment, delivered on 5 May 2022, which included: "CONSIDERATION … 63 The circumstances giving rise to the Notice of Motion stem from remarks made by the Court of Appeal in its hearing of the appeal on 23 and 24 July 2020 about the absence of a finding or adequate findings on my part in my judgment back in June 2019 in relation to Mr Coombe the second defendant. 64 It would seem that the plaintiffs were untroubled, disinterested, or simply oblivious to the absence of such findings until the issue was raised by the Court of Appeal. They submit that, through no fault of their own, they simply never had the matter drawn to their attention by their opponents nor any court, and hence should be regarded as without fault in the relevant sense. 65 The objective of course of this Motion is to seek leave to reopen for the express purpose of having the Court make findings adverse to Mr Coombe (formerly the second defendant) so as to make him liable in damages. 66 The affidavit evidence filed for the plaintiffs on this Motion does not reveal precisely when, if at all, prior to debate in the Court of Appeal, that the inadequacy of my findings was brought to their attention. However, during debate before the Court of Appeal, the matter clearly emerged with clarity. 67 However, the evidence Mr Palmer, solicitor for the plaintiffs, puts before the Court does indicate that there was clearly some detailed discussion as to the form of the declaratory relief which appears resultant to the matter of consent. There is no explanation as to why it has taken so long to make this application. In neither affidavit of Ms Jemmeson's does she indicate when she read the judgment at first instance or what steps she took precisely apart from alluding to the possibility of amending the Statement of Claim on the question of damages. 68 I accept that the plaintiffs did not file a notice of contention, but they were placed squarely on notice in the course of the hearing before the Court of Appeal that the Court was concerned about the existence or not of evidence to support my findings and declarations. The plaintiffs' Counsel was, it seems, content to deal with that issue in the course of argument, and did not formally seek leave, even belatedly, to file a notice of contention to protect their position. Subject to any question of costs and given the way in which the point had arisen, in my view that course was clearly open. 69 For any number of reasons, I am of the view that this application should fail. … 72 UCPR r 36.16(3) does not apply if what has occurred involves a determination of "any claim for relief, or… any question… arising on any claim for relief". Here, there is no reason in my view on the authorities appropriately understood to describe my determination as it were of the separate question as falling outside r 36.16(3). I determined the question of liability which in turn was the subject of review by the Court of Appeal. As a matter of law, but for all practical purposes, the issue of liability has been determined, and is not, as the plaintiffs submit, at large. … What I did precisely here was to determine a question of liability, corrected albeit by the Court of Appeal. But the question of liability has, in accordance with the language of that subrule, been determined. It is not to be trivialised, as plaintiffs' Counsel suggested, as merely a step along the way. This construction is entirely consistent with the underlying policy of achieving finality in litigation. In my view, therefore, the plaintiffs' attempt to call in aid subrule (3) is inappropriate. … 75 The current state of play is that the plaintiffs have a right to compensation against Mr Agar (the first defendant) within the scope of that liability which the Court of Appeal has left open. Therefore, they have a defendant against whom they can recover damages. I did not make any separate findings in my judgment against Mr Coombe such that he would be separately responsible for any head of damage, for example as to any commercial opportunity lost by the plaintiffs as a result of his particular contractual or other breaches. However, to bring Mr Coombe back into the litigation now and make him personally liable (at least potentially) for losses would be obviously prejudicial to him. … 78 The moment the Court of Appeal showed an interest in the relevant issue should have signalled, if only out of self-preservation, a need for the plaintiffs to address the matter there and then or very soon thereafter in a meaningful way. Counsel for the plaintiffs chose to address the issue in oral argument, on the run, and that is a forensic choice counsel is sometimes called upon to make. Having made that forensic choice, in my view, as a matter of fairness, the plaintiff should be stuck with it. …"
This recitation of the procedural history then brings matters to the point of the two notices of motion which are the subject of these reasons, having been filed by Mr Coombe on 3 November 2022 and by the plaintiffs on 4 November 2022 (see [5] and [6] above).
In order to understand the case which the plaintiffs now say they remain able to bring against Mr Coombe, it is necessary to set out the FASOC with its deletions. The effect of those deletions, according to the plaintiffs, is to conform the pleading to so much of the case as they say remains: "Coombe's employment 94. Coombe was employed in the office of Devine Concord as a receptionist from about March 2012. 95. In about October 2013, Coombe was offered and accepted a position employed by Devine Concord entered an employment contract ("Coombe Employment Agreement") in or about October 2013: (1) in writing in the form of the then applicable REEF agreement. (2) alternatively, partly in writing and partly oral and partly implied by conduct. Particulars (a) Coombe was informed that as a condition of the new position he was required to enter a written employment agreement in the form of the then applicable REEF agreement. (b) Coombe agreed to enter the REEF agreement. (c) a copy of the REEF agreement was given to Coombe, or alternatively was readily available to him. (d) Coombe accepted and worked in the position and accepted the trust of Devine Concord, including being given access to confidential information and customer contact and being made a public face of Devine Concord. (e) Coombe accepted the benefits of the position including payment in accordance with the terms provided in the REEF agreement, including as to payment of commission in respect of sales for which Coombe was appointed as assisting agent and conducted under the supervision of a licensed agent at Devine Concord. (3) alternatively, in the circumstances, Coombe is estopped from denying he was a party to an employment contract on the terms of the then applicable REEF agreement. Particulars (a) Repeat particulars to (2). (b) Coombe stood silently by and accepted access to confidential information and customer contact and being made a public face of Devine Concord and accepted payment of commission due in accordance with the terms of the REEF agreement which would not have been given if he had not accepted obligations to the to the effect stated in the REEF agreement. (4) alternatively, on the terms implied by law. 97. It was a term of the Coombes Employment Agreement that Coombe would: (1) be faithful to Devine Concord while an employee. Particulars Implication of law; Clauses 4.1(a), (c), (h) and 5.1(a), (e) of REEF agreement. (2) keep confidential the Customer Information, Business Documents and other confidential information, while an employee and after his employment ceased. Particulars Implication of law; Clause 13.1(b) of REEF agreement. (3) immediately notify Devine Concord of any suspected or actual unauthorised use, copying or disclosure of confidential information, while an employee and after his employment ceased. Particulars Clause 13.1(c) of REEF agreement. (4) provide reasonable assistance to Devine Concord requested by Devine Concord in relation to any proceedings Devine Concord may take against any person for unauthorised use, copy or disclosure of confidential information while an employee and after his employment ceased. Particulars Clause 13.1(d) of REEF agreement. (5) until about 27 September 2018, or such lesser period as is a reasonable time, not solicitor, attempt to solicit or accept any instructions from any customer of Devine Concord. Particulars Clause 18.2(a) of REEF agreement. (6) until about 27 September 2018, or such lesser period as is a reasonable time, not be engaged or concerned in whether as an employee or otherwise in carrying on any business for another business engaged in providing real estate services within 7.5km of XX Majors Bay Rd Concord. Particulars Clause 18.2(b) of REEF agreement. (7) until about 27 September 2018, or such lesser period as is a reasonable time, not condone any other person by which he is engaged in conduct which if he did it personally would be in breach of clause 18 of the REEF agreement. Particulars Clause 18.2(d) of REEF agreement. 98. Pursuant to the Corporations Act 2001 (Cth), while an employee of Devine Concord Coombe was under a duty not to improperly use his position to gain an advantage for himself or someone else or to cause detriment to the company. Particulars Section 182 of the Corporations Act 2001 (Cth). 99. Pursuant to the Corporations Act 2001 (cth), while an employee of Devine Concord and after his employment ceased, Coombe was under a duty not to improperly use information obtained because of his position, to gain an advantage for himself or someone else or to cause detriment to the company. Particulars Section 182 of the Corporations Act 2001 (Cth). 100. At all material times while an employee of Devine Concord and after his employment ceased, Coombe owed Devine Concord an equitable duty to keep confidential Devine Concord's information, which he knew or should have known was confidential information. 101. In breach of his various duties pleaded herein, Coombe has: (1) used his position to without consent or authority, copy and remove confidential information of Devine Concord and failed to notify it he had done so. Particulars (a) Coombe sent himself to his personal email at least one email attaching two spreadsheets of confidential customer information. (b) Such further information as may be discovered after disclosure is given or accounts are taken. (2) while an employee, acted against good faith and against the interests of Devine Concord. Particulars Repeat particulars to (1). (3) failed to notify Devine Concord of suspected or actual unauthorised use, copying or disclosure of confidential information, while an employee and after his employment ceased. Particulars Coombe suspected or knew during his employment and knew in or about January 2018 after his employment ceased that Agha had and was using confidential information without authority but did not notify Devine Concord. (4) taken, used and disclosed confidential information of Devine Concord to the detriment of Devine Concord and for the purpose of his own gain or benefiting other persons. Particulars (a) Repeat particulars to (1). (b) Coombe has been employed or engaged directly or indirectly in some capacity to work as part of Agha's team in the interests of Agha, Agha's company and for or with Belle Australasia Pty Ltd and one or more Belle Property franchises and their suppliers ("Agha Team business associates"). (c) Coombe has disclosed the confidential information to Agha Team business associates and used it for their purposes. (8) has solicited, attempted to solicit and accepted appointment from customers of Devine Concord. Particulars As referred to in the confidential evidence and such other customers as may be discovered after disclosure is given or accounts taken. (9) has been engaged or concerned in whether as an employee or some other capacity in carrying on a business for another business engaged in providing real estate services within 7.5km of XX Majors Bay Rd Concord. Particulars Repeat particular (4)(b). (10) knowingly assisted or was concerned in the breach by Agha of Agha's obligations in using and disclosing confidential information of Devine Concord and competing with Devine Concord. Particulars Repeat particular (4)(b) & (c). …"
It will be recalled that, insofar as paragraph 97(1) of the operative pleading alleged a term of fidelity by implication of law, that was admitted by Mr Coombe. However, as Mr Doyle Gray submitted, and will be apparent from the extracts which I have set out in [19] above, Sackar J made no findings in the Primary Judgment of a breach of that term.
In relation to paragraph 97(2), Mr Coombe denied any such term, including by implication of law. There appears to have been no argument before Sackar J, and certainly no finding in the Primary Judgment, that insofar as Mr Coombe's terms of employment included common law terms, they included an obligation in contract of confidence of the kind pleaded.
In relation to the proposed form of paragraph 101 of the FASOC, it was submitted for Mr Coombe that those allegations were either contrary to conclusions reached by the Court of Appeal or were not the subject of any finding by Sackar J or by the Court of Appeal at all. Because of the overall conclusion which the Court has reached, it is not necessary to parse proposed paragraph 101 in detail to reach a concluded view on that submission.
In necessarily setting out the procedural history at length, I have not overlooked that each party also referred the Court to some materials such as transcript of argument including, for example, exchanges between the bench and the bar in the Court of Appeal (one example of which I set out in [51] below). I have not included these in the procedural narrative because the judgments and orders of the Court are sufficiently clear for the purposes of the present task and it is unnecessary to have regard to such extraneous material. Even if that conclusion be wrong, none of those additional materials would have changed the Court's conclusion.

Consideration

No disrespect is intended to the thorough, and in some respects ingenious, arguments advanced by the parties by reducing them to their essence in what follows.
For Mr Coombe, it was submitted that four closely related principles of finality applied in the present case: 1. The doctrine of merger (also known as res judicata in the strict sense); 2. Claim estoppel (previously known as cause of action estoppel, and also known as res judicata); 3. Issue estoppel; and 4. Anshun estoppel (also known as the extended principle in Henderson v Henderson).
In support of these, the Court was referred to the decisions of the High Court in Clayton v Bandt (2020) 272 CLR 1; [2020] HCA 44 and Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28. Mr Coombe's fundamental proposition was that the question of his liability to the plaintiffs had been fully litigated at first instance, on appeal and, to the extent it was relevant, a subsequent attempt to reopen that failed, such that there was nothing left in the case against him, so that he was therefore entitled to judgment.
For the plaintiffs, it was submitted that the real question was whether Sackar J had made factual findings establishing liability in Mr Coombe which remained intact after the Appeal Judgment that could provide a basis for determining the quantum of damages against Mr Coombe. Returning to Mr Sirtes SC's metaphor, he submitted (Tcpt, 22 March 2023, p 61(29-30)) that "what we have done is we've sought to piece together a very confined basis to say there is still life left in this patient".
Insofar as Mr Coombe sought to rely on the principles referred to in [45] above, I accept Mr Sirtes SC's submission that they have no application to the present case because they speak to the rights of parties (or their privies) in subsequent proceedings between them by reason of what happened (or did not happen) in earlier proceedings between them. The case at bar concerns the parties' rights in relation to these very proceedings. This extends to the hearing the Court of Appeal, which while a specified appellate court exists within the Supreme Court and is not a separate entity: Smith v Yusen Daly Smith International Pty Ltd (in liquidation) (2001) 53 NSWLR 385; [2001] NSWCA 458, with the hearing in the Court of Appeal being by way of rehearing (UCPR Part 50 r 50.16(1)).
However, that conclusion is of no real assistance to the plaintiffs. The legal principles referred to by Mr Coombe set out in [45] above are all manifestations of the fundamental public policy interest in the finality of litigation: the State is concerned to ensure that there be an end to litigation (interest reipublicae ut sit finis litium). That principle extends to the conduct of parties within the same set of proceeding (including any appeal) and is the reason why, as I will next elaborate, the Court has concluded that Mr Coombe is now entitled to the dismissal of the proceedings against him.
Mr Sirtes SC, entirely properly, accepted that his clients' path to success in resisting Mr Coombe's application and being entitled to proceed in damages against Mr Coombe was a narrow one. That path is blocked, at the outset. While Devine now wishes to press a case in damages against Mr Coombe based on what might be referred to as the common law contract and, in particular, the implied right of fidelity pleaded in paragraph 97(1) set out in [12] above, for all the evident care which attended Sackar J's findings in the Primary Judgment, there is no express finding of breach of such an obligation. Mr Sirtes SC accepted that there was no such finding in terms, but submitted that "it is true his Honour has not made that finding but merely because his Honour hasn't specifically used that formulation doesn't mean that the finding that he has made informed by the previous findings don't give rise to a claim on that basis and that's precisely what his Honour Payne JA picked up on" (Tcpt, 22 March 2023, 60(3-7)).
The reference to Payne JA is to this exchange Mr Doyle Gray and Payne JA, in which his Honour referred to [385] of the Primary Judgment (set out in [19] above) (Tcpt, 24 July 2020, p 21(37-50)): "DOYLE GRAY: There have been no orders made, other than an order for a separate hearing on issues but for damages. That's contained in the orange book. We've extracted it in our submissions in-chief. We've quoted it verbatim. Yes, 106, thank you, your Honour. Indeed, part of our basis for seeking leave at this stage is because other than the matter for damages, which we say is quantification, you get that from the word of assessment, in that order. The assessment of..(fault in audio visual link)..we say everything else has been dealt with by Sackar J. PAYNE JA: Why isn't 385 a finding that at least leaves open the possibility that they could prove damages on this contingent basis against the second appellant? It's not a finding that you challenged. I raised this with you at the outset yesterday for factual findings are challenged. I don't think you said anything about this paragraph, did you?"
Mr Doyle Gray then purports to answer that and make other submissions over two pages of transcript, to which White JA is recorded as responding (Tcpt, 24 July 2020, 23(45)) "[w]ell, I'm not sure that I followed all of that, unfortunately, Mr Doyle Gray". With great respect to Mr Doyle Gray, I find myself in the same position. However, the essential point (which has already been made in [43] above) is that Payne JA's observation in argument to Mr Doyle Gray is irrelevant to determining the formal effect of the judgment and orders of both Sackar J and the Court of Appeal.
I do not accept Mr Sirtes SC's submission recorded in [50] above. The absence of an express finding by Sackar J of breach by Mr Coombe of the admitted implied obligation of fidelity (or of such a finding by the Court of Appeal on a notice of contention) is fatal to the plaintiffs' case on the present motions. Having regard to the procedural history and the principle of finality, it is not open to the plaintiffs now to seek to identify a breadcrumb trail of factual findings that will lead them to a present entitlement to maintain an action in damages for a breach not expressly found by the trial judge, or pressed for by the plaintiffs in the Court of Appeal.
That is not to make any criticism of the plaintiffs for their conduct of the litigation. The fact that Sackar J's focus was on the allegation of a written agreement with both Mr Agha and Mr Coombe is unsurprising. It is typical in cases of this kind, and the very reason for urgency in their disposition by the Court, that the focus is on the entitlement of the plaintiff employer to assert restraints of trade against the defendant former employee. In this case, the restraint of trade in the sense of non-competition was only available against Mr Coombe if he was found to be a party to an agreement in the terms of the REEF agreement. Beyond the fact of the admitted implied term in the pleading, there is no suggestion in the material to which the Court has been taken on these applications that anyone gave what might be called the common law aspect of the matter any real thought.
Mr Coombe's motion engages another aspect of the principle of finality, which is that it is fundamental to the conduct of litigation in accordance with the overriding purpose that a party be held to its pleaded case or, if the matter has been conducted otherwise, to the case the parties chose to litigate. This well understood approach was recently affirmed by the Court of Appeal in Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 (per Leeming JA with whom Kirk JA and Griffiths AJA agreed): "38. The appellants submitted, correctly, that the case upon which Ms Bale succeeded at trial had not been pleaded. They also recognised, correctly, that that was not sufficient to entitle them to success on appeal. The pleadings are important, but when the parties choose to litigate a case outside the pleadings, the pleadings cease exhaustively to delineate the issues raised for resolution by the court. The principles were stated by Mason CJ and Gaudron J in Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 287; [1990] HCA 11 in respect of a comparable situation: Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference. 39. The judgments of Brennan J at 288-290 and Toohey J at 302-305 are to substantially the same effect. In Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [26] the joint judgment endorsed the fundamental principle stated in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517; [1916] HCA 81 that "no man ought to be put to loss without having a proper opportunity of meeting the case against him" which requires that "pleadings should state with sufficient clearness the case of the party whose averments they are". Where as here, and as was the case in Akhil Holdings, the unpleaded case amounts to an allegation of fraud, the need for a clear enunciation of the case is all the greater, as explained in Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277 at [88]-[94] and the cases there cited."
In the present case that principle has application not because the parties litigated a case outside the pleadings, but because they obviously confined most, if not all , of their forensic attention, I infer for the reason set out in [54] above, to the major issue that was advanced in the pleadings, namely whether or not Mr Coombe was also bound by the written REEF agreement. The same application of the principle of finality must apply where a party does not actively pursue a particular issue, albeit one that has in fact been pleaded.
There can be no doubt that both the intent and effect of the Court's order for the separate determination of liability (see [15] above) was that all questions of liability on any basis which the plaintiffs sought to propound were to be determined at that hearing. It is apparent from the Primary Judgment that is what his Honour sought to do in a hearing that went over many days and months.
There is ample scope for a party, having considered a judge's reasons, to seek to persuade the judge that she or he has failed to make a finding or deal with an argument which that party says was properly before the Court for determination, but which appears to have been omitted from the judgment. Quite apart from any provision in the rules, the court has inherent jurisdiction to deal with that situation. Such an application may give rise to an argument between the parties as to whether or not the allegedly argued but omitted matter properly bears that characterisation, but that possibility does not gainsay the undoubted existence of the jurisdiction.
In this case, upon delivery of the lengthy and detailed Primary Judgment, and in circumstances where the plaintiffs accept no express finding was made in relation to the admitted term of fidelity or an unwritten contract implied by conduct more generally, the plaintiffs made no application to his Honour of the kind to which I have referred. Furthermore, although the circumstances in which it might have succeeded are considerably more limited, no application was made under UCPR Part 36 rule 36.16 to vary his Honour's orders.
The next point to note is that Mr Agha and Mr Coombe sought leave to appeal (leave not being opposed) from the whole of the Primary Judgment.
While not contentious, in addition to the observations in [48] above, it is helpful at this point to recall the nature of an appeal. This is helpfully summarised in D Mildren, The Appellate Jurisdiction of the Courts in Australia, Second Edition, Federation Press (2023) at 1.01 (citations omitted): "An appeal is the right of an unsuccessful party to a decision of a court or tribunal to seek redress from the formal order or judgment of that court by formally applying to a superior court in order to redress an error made by the primary court or tribunal. An appeal transfers the proceeding from the court or tribunal appealed from to the appellate court, and it seeks to set aside or vary the order of judgment being appealed, and usually, but not always, seeks to have the appellate court make such order or orders as the appellate court considers just. A finding or other determination of a court which is not incorporated into an order or judgment is not appealable unless it can be shown that the court intended by that finding to dispose finally of the litigation or of some question in the litigation. Consequently, there is no appeal from the reasons for judgment; the appeal is from the judgment or order. …"
In the Court of Appeal, insofar as Mr Coombe appealed from Sackar J's declaration that Mr Coombe was "bound by the same EA entered into by Mr Agha", the whole question of Mr Coombe's liability (including the legal source of that liability) was open for argument before the Court of Appeal as a rehearing. The plaintiffs' conduct which is dispositive of their opposition to Mr Coombe's present application for judgment is that, in the Court of Appeal, the plaintiffs as respondents failed to file a notice of contention seeking to have the Court of Appeal affirm Sackar J's finding of contractual liability in Mr Coombe on a basis other than the Employment Agreement, in this case for breach of the implied duty of fidelity and (depending on the scope of that duty of fidelity) the equitable (rather than contractual) duty of confidence.
It may be thought that a notice of cross-appeal may have been the more apt procedure. However, that does not matter for present purposes. Procedural purity would not have been allowed to overcome substantial justice: if the plaintiffs had wanted to obtain clear findings of a liability in damages in Mr Coombe on bases other than those expressly found in the Primary Judgment, it would have been open to them to do so in the Court of Appeal. They did not.
No reason for this has been advanced, including no submission that failure to do so was attributable to an error on someone's part. There is no basis to conclude whether, by their own error or by reason of something which was said in the Court of Appeal, the plaintiffs somehow failed to pursue the question of Mr Coombe's liability in damages on some basis other than that determined by Sackar J.
The Court of Appeal set aside those orders of Sackar J which would have been the basis for Mr Coombe's liability in damages to Devine. With the setting aside of those orders, Devine's claim against Mr Coombe has been fully and finally determined in his favour on all issues because no question of damages can arise when he has succeeded on the issue of liability as that issue was litigated both before Sackar J and the Court of Appeal. There are no orders or declarations extant against him.
The fact that some factual findings may remain which could form the start of an alternative theory of liability against Mr Coombe does not change that result. That is because if it had either been taken up with Sackar J after he delivered the Primary Judgement or in the Court of Appeal, there would undoubtedly have to have been a full consideration of the scope of the duty of fidelity and whether it had been breached, including (in the absence of also pursuing and obtaining any findings as to the equitable duty of confidence) whether it provided an independent basis for obtaining relief against Mr Coombe either by way of injunction or for damages. The time for having that argument passed when no notice of contention was filed in the Court of Appeal and that court disposed of the plaintiffs' case against Mr Coombe by upholding the latter's appeal.
All of that being said, it remains somewhat inexplicable as to why Mr Coombe did not seek to have the proceedings against him dismissed as part of the orders made by the Court of Appeal. The mystery is compounded when he did not make any such application in answer to the plaintiffs' further unsuccessful reopening application before Sackar J. Whatever the reasons for Mr Coombe's apparent inaction in his own interest on at least two occasions, the fact that Mr Coombe (on the view which I have reached) could have had the proceedings dismissed against him earlier does not provide a reason why the Court should not do so now.

Devine Real Estate Concord Pty Ltd v Agha

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (6 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (19)

Cited By (1)