//
[2025] NSWSC 645
General information, not legal advice.
Supreme Court of NSW
2025-06-20
Hmelnitsky J
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Sprout Trading NSW Pty Ltd trading as Sprout Ag v PBH Trading Pty Ltd (No 2) [2025] NSWSC 645
Hearing dates: 17 April 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Jurisdiction: Equity
Before: Hmelnitsky J
Decision: [37]
Catchwords: EQUITY — Equitable remedies — Equitable compensation — Assessment — Where equitable compensation to be assessed on the basis of a loss of opportunity — Whether discount should be applied pursuant to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
EQUITY — Equitable remedies — Where defendants accept that plaintiff entitled to make a ‘split election’ for different remedies as between them — Where the second defendant was the sole director of the first defendant — Where the defendants were found in substance to owe the same fiduciary duties to the plaintiff — Where acts constituting separate breaches by each of the defendants were in each case performed by the second defendant only — Whether risk of double recovery
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 46.3
Cases Cited: Barescape Pty Ltd as trustee for The V’s Family Trust & Anor v Bacchus Holdings Pty Ltd as trustee for The Bacchus Holdings Trust & Anor (No 9) [2012] NSWSC 984
Baxter v Obacelo Pty Limited (2001) 205 CLR 635; [2001] HCA 66
Canson Enterprises Ltd v Broughton & Co (1991) 85 DLR (4th) 129
Club of the Clubs Pty Limited v King Network Group Pty Limited (No 2) [2007] NSWSC 574
Flynn PPK Mining Equipment Pty Ltd (No 3) [2024] NSWSC 663
Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Neilson v Betts (1871) LR 5 HL 1
Nocton v Lord Ashburton [1914] AC 932
O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262
Pirrottina v Pirrottina [2024] NSWSC 558
Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324
Salmon v Albarran [2023] NSWSC 1238
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Sprout Trading NSW Pty Ltd trading as Sprout Ag v PBH Trading Pty Ltd [2024] NSWSC 1647
Tang Man Sit v Capacious Investments Ltd [1996] AC 514
Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18
Xiao v BCEG International (Australia) Pty Ltd (2013) 111 NSWLR 132; [2023] NSWCA 48
Texts Cited: Nil
Category: Consequential orders
Parties: Sprout Trading NSW Pty Ltd t/as Sprout Ag (Plaintiff)
PBH Trading Pty Ltd (First Defendant)
Peter Lance Hollingworth (Second Defendant)
Representation: Counsel:
D Neggo (Plaintiff)
R Notley (Defendants)
Solicitors:
Whiteley Ironside & Shillington (Plaintiff)
Wilsons Solicitors (Defendants)
File Number(s): 2022/378431
Publication restriction: Nil
I delivered my principal reasons for decision in this matter on 19 December 2024: Sprout Trading NSW Pty Ltd trading as Sprout Ag v PBH Trading Pty Ltd [2024] NSWSC 1647 (‘J’). I found that both defendants were bound by certain post-employment contractual restraints and that the defendants breached those contractual restraints by soliciting work from customers of the plaintiff. I also found that the defendants owed fiduciary duties to the plaintiff and that they breached those duties by doing work that represented the exploitation of opportunities obtained by reason of the relationship between the parties. In reaching those overall conclusions, I made findings as to the circumstances in which each piece of contested work came to be performed by the defendants and the respects in which the doing of that work amounted to a breach of either a contractual or fiduciary obligation.
I found that the defendants breached clause 12.3 of the Services Agreement in their dealings with three clients during the 12-month period following termination:
The Bowman entities: J[114] to J[122].
The Egan entities: J[178] to J[193].
The Vella entities: J[194] to J[207].
I found that the defendants breached their fiduciary duties to the plaintiff in their dealings in relation to particular pieces of work with six clients following termination of the Services Agreement:
The Bowman Entities: J[304].
The Shorts: J[306].
Gin Gin Farms: J[310] to J[311].
The Egan Entities: J[312] to J[313].
The Vella Entities: J[314].
The Technotill Entities: J[317].
In circumstances where it was necessary to calculate the amount of contractual damages in the light of my specific findings and where I had also been informed that the plaintiff intended to make a split election of remedies as between the defendants in relation to the equitable claims, that being an election to seek an account of profits from PBH Trading but equitable compensation from Mr Hollingworth, I directed the parties to bring in short minutes to give effect to my conclusions.
The parties have brought in short minutes of order and are agreed that the sum of contractual damages that should be awarded is $9,720.28. This figure reflects that, as I found, there was a very strong likelihood in the order of 85% that, had the non-solicitation restraints not been breached, most clients would have followed Mr Hollingworth anyway. However, the parties remain in dispute as to the orders that should be made to give effect to the two equitable remedies which the plaintiff seeks as a result of the defendants’ breaches of fiduciary duty.
There are two issues. The first is whether, in calculating the amount of equitable compensation to which the plaintiff is entitled, it is appropriate to apply a discount. As mentioned, I made findings that most clients were very likely to have followed Mr Hollingworth even if he did not solicit them and that contractual damages should be discounted accordingly. The first issue is whether, in calculating equitable compensation, a similar discount should be applied.
The second issue is whether PBH Trading’s liability to account for profits should be reduced by the amount of equitable compensation which Mr Hollingworth is required to pay. The defendants submit that unless this is done, there will be a double recovery. The plaintiff says that there will be no double recovery for the reasons explained in Xiao v BCEG International *(*Australia) Pty Ltd (2013) 111 NSWLR 132; [2023] NSWCA 48 (‘Xiao’).
It is important to record at the outset that the defendants explicitly accept that it is open to the plaintiff to make a split election here. I was informed by the plaintiff that the basis of this position was to be found in the reasons of Gleeson JA (Mitchelmore JA and Griffiths AJA agreeing) in Xiao. That case concerned the liability of two fiduciaries and other parties who were knowing recipients of payments flowing from the fiduciaries’ breaches. On the facts of that case, the acts and behaviour of the fiduciaries in breach of duty were very different from the acts and behaviour of the knowing recipients. Their liabilities also differed significantly in nature and extent. Gleeson JA explained by reference to Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 that the liability of a fiduciary and the liability of a knowing assistant or recipient in a breach of fiduciary duty are several. In such a case, the plaintiff may elect different remedies against each wrongdoer: [60]-[62] and [70]. His Honour did not address the question of whether such an election might be possible where the liability of the wrongdoers was joint and several.
At [70] his Honour said:
“This flexibility in the award of different remedies against different defendants reflects the ‘cardinal principle of equity’ referred to in Warman at 559 ‘that the remedy must be fashioned to fit the nature of the case and the particular facts’. Given the authority of Michael Wilson, and the point of distinction from Neilson in cases involving multiple defendants whose liability is both personal and independent, Bergin J was correct to conclude in King Network that there was no obstacle to the plaintiff making a split election in that case. It is otherwise unnecessary to address the appellants’ criticisms of the reasoning of Bergin J. The position is now settled by Michael Wilson.”
His Honour’s reference to Neilson was to Neilson v Betts (1871) LR 5 HL 1, where Lord Westbury explained in the context of a patent infringement that the reason a plaintiff is ordinarily required to elect between the remedies of equitable compensation and an account of profits is that equitable compensation, conceptually at least, condemns a particular infringement whereas an account of profits condones it. Gleeson JA held that this reasoning had no application to a case against multiple wrongdoers where a split election was made: see [69] of Xiao.
The reference to Club of the Clubs Pty Limited v King Network Group Pty Limited *(*No 2) [2007] NSWSC 574 (‘King Network’) was to another case involving a fiduciary and accessories. I accept that dicta is to be found in the reasons of Bergin J in that case to support the proposition that a plaintiff may elect different remedies against multiple defendants who have each breached their fiduciary duties as principals: see especially [25] and [37]. However, given that Xiao and (at least on my reading) King Network concerned the liability of several, and not joint and several, wrongdoers, it is doubtful that Gleeson JA in Xiao was laying down a rule of general application for all cases in which equitable remedies are sought against multiple wrongdoers, even where their liability is joint and several.
Neither party in the present case has addressed me on the question of whether PBH Trading and Mr Hollingworth are jointly and severally liable, or only severally liable, for the breaches which I found in my earlier reasons. The fact that Mr Hollingworth was the sole director of PBH Trading, that there is no evidence that any person ever acted on behalf of PBH Trading other than Mr Hollingworth, that both PBH Trading and Mr Hollingworth were found to owe in substance the same fiduciary duties to the plaintiff, and that acts constituting their separate breaches were in each case the acts performed by Mr Hollingworth are all factors which would ordinarily suggest that their liability was joint and several: cf Grimaldi v Chameleon Mining NL *(*No 2) (2012) 200 FCR 296; [2012] FCAFC 6 (‘Grimaldi’) at [556].
Be all of that as it may, I will deal with the parties’ arguments on the footing that the plaintiff is entitled to make a split election. I will do so for two reasons. The first is that, rightly or wrongly, it is the express basis on which the parties proceeded. The second is that the particular concern of the law here is to ensure that there is no double recovery. In this regard, despite accepting the availability of a split election the defendants maintain that separate remedies will lead to double recovery on the particular facts of this case. The defendants’ position is somewhat confounding in the light of , which seems to me to hold that no question of double recovery arises where a split election is made. Nevertheless, the fact that the defendants have made this submission does put beyond doubt that they do accept that they are cumulatively liable for separate wrongs, no matter what they may have accepted about the availability of a split election. In oral submissions, the defendants even submitted that the ‘the wrongs are the same’. In these circumstances, the better course is to deal with the substance of the issue which divides the parties, which is whether the order for equitable compensation should be offset by the account of profits in order to avoid a double recovery on the facts of this case. This approach is analytically untidy but, as Gleeson JA emphasized at paragraph [70] of his reasons in , the cardinal rule in this area is that ‘that the remedy must be fashioned to fit the nature of the case and the particular facts’ (see (1995) 182 CLR 544; [1995] HCA 18 at 559).
The plaintiff submits that the amount of equitable compensation to remedy Mr Hollingworth’s breach of his fiduciary duty should not be reduced for a discount factor of the kind I described at J[320]. It submits that there is a conceptual difference between a breach of the Services Agreement by soliciting or diverting clients (as I found at J[122], J[193] and J[207]) and a breach of fiduciary duty by doing items of work that were already in train or in prospect prior to the termination of the Services Agreement. The difference lies in the fact that, as I found (J[96], J[102], J[112]) the Services Agreement did not necessarily prevent the defendants from doing work in competition with the plaintiff, even work that was already in train or in prospect, if all they did was accept work when offered to them. As fiduciaries, however, the defendants could not do certain work of that kind whether they solicited it or not.
In calculating damages for breach of contract, I found that there was an 85% prospect that clients would have followed Mr Hollingworth even if they had not been solicited in breach of the Services Agreement. That conclusion reflected the very strong customer connection which Mr Hollingworth was able to demonstrate with those clients. But, as the plaintiff submits, to calculate damages on the basis of a discount of 85% is to hypothesise that customers were highly likely to have instructed PBH Trading and Mr Hollingworth in any event. That is not a hypothesis that can be made when attempting to determine an appropriate remedy for the defendants’ breaches of fiduciary duty, because in those cases the hypothesis must be that the defendants would have observed their duty and refused to do the work.
The defendants say two related things in response. First, they point out that where equitable compensation is sought against a wrongdoer who, in breach of a fiduciary duty, has caused a plaintiff to lose a chance to derive income, it is generally appropriate to approach the calculation of loss in the manner described in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 (‘Sellars’) at 355 (Mason CJ, Dawson, Toohey and Gaudron JJ). This approach reflects the wider principle that equitable compensation aims to restore the plaintiff, as nearly as possible, to the position they would be in had no equitable breach never occurred: Nocton v Lord Ashburton [1914] AC 932 at 952; O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 (‘O’Halloran’) at 272-273. The defendants particularly drew my attention to the reasons of Spigelman CJ in O’Halloran at 273, where the Chief Justice approved the following passage from the judgment of McLachlin J in Canson Enterprises Ltd v Broughton & Co (1991) 85 DLR (4th) 129 at 163E-G:
“In summary, compensation is an equitable monetary remedy which is available when the equitable remedies of restitution and account are not appropriate. By analogy with restitution, it attempts to restore to the plaintiff what has been lost as a result of the breach, ie the plaintiff’s lost opportunity. The plaintiff’s actual loss as a consequence of the breach is to be assessed with the full benefit of hindsight. Foreseeability is not a concern in assessing compensation, but it is essential that the losses made good are only those which on a common sense view of causation, were caused by the breach.”
This approach may in an appropriate case involve the calculation of equitable compensation on the basis of a loss of an opportunity: Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324 at [123] (Gleeson JA); see also Barescape Pty Ltd as trustee for The V’s Family Trust & Anor v Bacchus Holdings Pty Ltd as trustee for The Bacchus Holdings Trust & Anor *(*No 9) [2012] NSWSC 984 at [269] (Black J); Salmon v Albarran [2023] NSWSC 1238 at [412] (Nixon J).
In such cases, the amount of equitable compensation may be subject to an adjustment ‘akin to a Sellars discount’: Flynn PPK Mining Equipment Pty Ltd *(*No 3) [2024] NSWSC 663 at [126] (Rees J); Pirrottina v Pirrottina [2024] NSWSC 558 at [237] (Rees J).
The defendants’ second point is that although the hypothesis is different to that involved in assessing contractual damages, many of my findings about the likelihood of customers remaining with the plaintiff would also support a finding that customers would have left the plaintiff following termination of the Services Agreement even if Mr Hollingworth had complied with his fiduciary duty. They also referred me to other evidence to support this conclusion. In this respect, they drew my attention to J[118] concerning the Bowman Entities; J[137] concerning the Shorts; J[172] concerning Gin Gin Farms; J[187] concerning Egan; J[199] concerning the Vella Entities; and J[235] concerning the Technotill Entities.
The position is clearer in relation to some customers than it is in relation to others. In the case of the Vella Entities, for example, Mr Vella said that he did not want anyone at Sprout doing his work and would not be staying there. He asked Mr Hollingworth: ‘If you can’t do it, who else can do it?’ Mr Egan described Sprout as ‘not my cup of tea’ and said that he did not want to use Sprout anymore. He also asked Mr Hollingworth for other recommendations, to which Mr Hollingworth recommended Suncorp or Central West Finance Solutions.
It is harder to hypothesise what would have happened if the defendants had not breached their fiduciary duty than it is to hypothesise what would have happened if the defendants had not breached their contractual duty. In the latter case, the question is whether customers would have taken their work to Mr Hollingworth even if he had not solicited them. That scenario is one in which the customer would have had the option of doing what he or she in fact did, which was to follow Mr Hollingworth. There is a degree of speculation involved in determining what would have happened in that scenario, but it is not too difficult to imagine because it is not too far from reality. In the former case, however, it is necessary to speculate as to what would have happened in a scenario that is very different to what actually occurred, namely where Mr Hollingworth leaves Sprout but where he is unwilling to do the work in question. This involves a higher degree of conjecture because it requires the Court to assess the likelihood of the customers doing something that they did not do in the real world, namely either stay with Sprout or find another broker.
It is also relevant to recall what I said at J[320], namely:
“The defendants submitted that any damages must be calculated on the basis that the loss to the plaintiff was only the loss of a chance to earn commissions and that, as such, it would be necessary to quantify that chance. If the question were only the measure of contractual damages, I would agree. However in circumstances where I have found in relation to those same breaches that there was a breach of a fiduciary duty for which the defendants are required to account, it is appropriate for the relief be calculated on that basis (that is, without discounting for the possibility that the clients would not have engaged the plaintiff in any event). Nonetheless, in case it matters, I accept the defendants’ submission that there was a strong likelihood that the plaintiff would not have picked up the work which Mr Hollingworth did in breach of clause 12.3. They submitted that this likelihood should be assessed at about 85%. I agree, because the evidence as to Mr Hollingworth’s personal connection to these clients demonstrates that they were highly likely to follow him even if he had not taken any steps to solicit their work.”
The hesitation with which that paragraph was expressed reflected the fact that I did not at that point know exactly what orders would be appropriate to give effect to the plaintiff’s election. As should however be clear, my conclusion as to the prospect of the plaintiff picking up the work which Mr Hollingworth did in breach of clause 12.3 of the Services Agreement was a conclusion limited to the calculation of contractual damages. I was not there expressing any view as to the calculation of either equitable compensation or the basis on which an account of profits should be taken.
Nonetheless, I did find that Mr Hollingworth had a strong customer connection with many Sprout customers. He is the reason why many of them were at Sprout to begin with. It is, I think, inevitable that at least some customers would have left Sprout once Mr Hollingworth left, even if he refused to do their work. On the other hand, the inquiry here is limited to that work that was either in train or in prospect at the time of termination of the Services Agreement. It is reasonable to assume that in relation to this work, customers might have been inclined to stay with the firm that had the work in train or for whom it was already in prospect if, as I must assume, their preferred agent (Mr Hollingworth) was suddenly unavailable.
This last-mentioned factor is significant. In my view, notwithstanding that many customers were only with Sprout to begin with because of Mr Hollingworth’s excellent customer connections, there was about a 50% chance that, taken as a whole, customers would have stayed with the plaintiff if Mr Hollingworth was altogether unavailable to do the work that was already in train or in prospect at the time he left. For the reasons explained above, this is an even less scientific number than the number which I expressed at J[320]. It is however about the best I can do with the available material.
It will therefore be appropriate to calculate equitable compensation taking into account a discount of 50%.
“Faced with alternative and inconsistent remedies a plaintiff must choose between them. Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies. He may pursue one remedy or the other remedy or both remedies, just as he wishes. It is a matter for him. He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people, he may sue both persons. He may do so concurrently, and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one, and take steps to enforce the judgment. This does not preclude him from then suing the other. There are limitations to this freedom. One limitation is the so called rule in Henderson v. Henderson (1843) 3 Hare 100. In the interests of fairness and finality a plaintiff is required to bring forward his whole case against a defendant in one action. Another limitation is that the court has power to ensure that, when fairness so requires, claims against more than one person shall all be tried and decided together. A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss. Part satisfaction of a judgment against one person does not operate as a bar to the plaintiff thereafter bringing an action against another who is also liable, but it does operate to reduce the amount recoverable in the second action. However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. This principle of full satisfaction prevents double recovery.”
I am particularly mindful of the third limitation identified by his Lordship.
In addressing the argument for double recovery in Xiao, Gleeson JA said at [74]:
“… The cumulative remedies do not result in overcompensation to BCEG, as the appellants suggested. BCEG is entitled to cumulative remedies because there are two distinct wrongs. WWM received property of BCEG the subject of the breach of fiduciary duty, and although the liability of the knowing recipient is dependent upon there being a breach of fiduciary duty, and to that extent the two wrongs are linked, the liability of the knowing recipient is for its own wrong, not the wrong committed by the fiduciary. The remedies are cumulative, rather than in the alternative, as the account of profits against WWM represents the gain by WWM from its own misconduct, not loss to BCEG, and as indicated, the account of profits is discretionary.”
The plaintiff submits that the equitable wrongs here are cumulative and that there is no basis to offset the remedies which it seeks. The defendants submit that the wrongs are the same and that unless there is an offset, there will be an overlap between the loss and the gain recovered respectively from each of them.
The issue may be illustrated by reference to a worked example. Let it be supposed that the defendants did an item of work for a client in breach of their fiduciary duty not to take advantage of opportunities that were in train at the time the Services Agreement was terminated. Let it be further supposed that PBH Trading earned a $10,000 commission for that item of work and that its costs of earning that commission were $5,000. It will have earned a profit of $5,000 from its breach of fiduciary duty. On an account of profits, it would be required to disgorge that $5,000 profit to the plaintiff.
The plaintiff has however elected to recover equitable compensation from Mr Hollingworth in respect of the same item of work. For simplicity, suppose there is no doubt that the work would have stayed with the plaintiff but for the breach of duty. Once one takes into account the 13% cost to the franchisor (as to which see J[319]), the amount of equitable compensation is likely to be $8,700.
The result, on the plaintiff’s case, is a total monetary remedy of $13,700 in circumstances where the defendants between them did a total of $10,000 worth of work in breach of duty. The plaintiff accepts that this is the end result but submits that this simply reflects the fact that it has cumulative remedies against multiple wrongdoers.
I am unable to accept this submission. This is a case in which the defendants owed in substance the same fiduciary duty and where the acts constituting their respective breaches were one and the same acts performed by Mr Hollingworth. Not only did they act in concert to a common end as ‘co-wrongdoers’ (cf Grimaldi at [591]-[594]) but their actions and the ends they had in view were indistinguishable as a matter of fact. Unsurprisingly, the plaintiff is therefore likely to recover amounts in excess of its real loss if different remedies are ordered against each defendant without any set-off.
These circumstances would ordinarily be a good reason to conclude that the defendants are jointly and severally liable and that the plaintiff should not be entitled to elect different remedies between them. Nevertheless, the defendants’ position on the availability of the election being what it is, the difficulty may be avoided by making an order that the amount of equitable compensation against the second defendant be reduced by the amount of profits recovered from the first defendant.
It will be necessary for the amount of equitable compensation to be calculated in accordance with my conclusion in paragraph [25] above. Once that is done, I propose to make orders broadly as follows:
Judgment against the defendants for common law damages for breach of contract in the sum of $9,720.28.
Judgment against the second defendant for equitable compensation in the sum calculated by the parties, such amount to be reduced by the amount payable to the plaintiff in accordance with Order 3 below.
Order that, pursuant to r 46.3 of the Uniform Civil Procedure Rules 2005 (NSW), an inquiry and account be taken by Hmelnitsky J of the profits made by the first defendant as a result of its breaches of fiduciary duty in accordance with the findings and reasons of Hmelnitsky J dated 19 December 2024 (see Sprout Trading NSW Pty Ltd trading as Sprout Ag v PBH Trading Pty Ltd [2024] NSWSC 1647) and order the first defendant to pay the plaintiff such amount found to be due on the taking of such accounts.
In the meantime, I make the following orders:
Direct the parties to bring in short minutes of order to give effect to these reasons, including the calculation of equitable compensation to be awarded against the second defendant and dealing with procedural and other matters relating to the taking of accounts, on or before 4.00PM on 11 July 2025.
Direct the parties to file and serve any evidence and submissions on costs on or before 4.00PM on 18 July 2025.
Direct the parties to file any evidence and submissions in reply on costs on or before 4.00PM on 25 July 2025.
**********
Sprout Trading NSW Pty Ltd trading as Sprout Ag
PBH Trading Pty Ltd
(1994) 179 CLR 332
(2001) 205 CLR 635
(2012) 200 FCR 296
(2011) 244 CLR 427
(1998) 45 NSWLR 262
(1995) 182 CLR 544
(2013) 111 NSWLR 132