Shaw And Partners Limited v Dimarco

Category: Procedural rulings

Parties: Shaw and Partners Limited (Prospective Plaintiff/Respondent)
Alberto Dimarco (First Prospective Defendant/Applicant)
Dimarco Capital Pty Ltd (Second Prospective Defendant/Applicant)
Solomons Wealth Management Australia Pty Ltd (Third Prospective Defendant/Applicant)

Representation: Counsel:
O Jones / M E Parker (Prospective Plaintiff/Respondent)
J J E Fernon SC (Prospective Defendants/Applicants)
Solicitors:
HWL Ebsworth (Prospective Plaintiff/Respondent)
K&L Gates (Prospective Defendants/Applicants)

File Number(s): 2025/184446

EX TEMPORE JUDGMENT (REVISED)

1. The plaintiff holds an Australian Financial Services licence.

2. The first defendant, Mr Dimarco, is a financial advisor and the sole director and shareholder of the second defendant, Dimarco Capital Pty Ltd.

3. By an agreement dated 10 September 2018, the plaintiff appointed the second defendant as one of its authorised representatives.

4. That agreement was terminated on 2 April 2025.

5. Now, by Summons filed on 14 May 2025, the plaintiff seeks preliminary discovery from the defendants [1] as follows:

6. Copies of all Confidential Information in the possession of any of the Prospective Defendants (“Retained Confidential Information”).

7. Copies of all correspondence created by, or on behalf of, any of the Prospective Defendants created in the period 1 January 2025 to the date of these orders that contains any of the Confidential Information.

8. Copies of all correspondence between on the one hand Mr Dimarco and/or Dimarco Capital and on the other hand Solomons created in the period 1 January 2025 to the date of these orders.

9. Copies of all correspondence that has been sent by, or on behalf of any of the Prospective Defendants, in the period 1 January 2025 to the date of these orders to any Client.

10. Copies of all documents which evidence any arrangement, understanding or agreement that Mr Dimarco, Dimarco Capital or Maxteo Holdings Pty Ltd has or has had with Solomons that was created in the period 1 July 2024 to 7 April 2025.

11. Copies of all documents evidencing the creation by any Client of an account with Solomons created in the period 1 January 2025 to the date of these orders

12. By Notice of Motion filed on 30 May 2024, the defendants seek an order for the separate determination on the plaintiff's application for preliminary discovery of three questions.

13. Those questions are directed to whether certain "account names" referred to in the plaintiff's evidence on its application for preliminary discovery were in fact clients of the plaintiff and whether any information alleged in the plaintiff's evidence to be confidential is, in fact, confidential.

14. It appears to me there are many reasons why it is not appropriate to order the determination of those questions separately.

15. The most obvious is that the determination of those issues is not bound to be dispositive of the plaintiff’s application for preliminary discovery.

16. Resolution of the proposed separate questions would also require determination of possibly contested questions of fact, questions of legal construction and questions as to the construction of categories of information. It would not be appropriate for such matters to be ventilated in a separate question in this context.

17. There are a number of other reasons why a separate question will not be appropriate. They are set out in the submissions of Mr Jones and Ms Parker for the plaintiffs.

18. The defendant's motion of 30 May 2025 is dismissed with costs.

19. I direct that the defendants serve all evidence in response to the plaintiff's application for preliminary discovery by 5pm on 26 June 2025.

20. I will stand the matter over for directions and allocation of a hearing date to 27 June.

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Endnote

Including from the third defendant, Solomons Wealth Management Australia Pty Ltd, Mr Dimarco’s current employer.