Curve Securities Pty Ltd v Young (No 2) [2022] NSWSC 1436

Supreme Court New South Wales

Medium Neutral Citation: Curve Securities Pty Ltd v Young (No 2) [2022] NSWSC 1436 Hearing dates: 14 October 2022 Date of orders: 21 October 2022 Decision date: 21 October 2022 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Plaintiff granted leave to amend its Commercial List Statement Catchwords: PRACTICE AND PROCEDURE – pleadings – whether plaintiff should have leave to amend its Commercial List Statement – whether List Statement should be struck out Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Chen v Golden Land Enterprises Pty Ltd [2022] NSWSC 19 Commissioner for Corporate Affairs v Green [1978] VR 505 Curve Securities Pty Ltd v Young [2022] NSWSC 1016 Forkserve Pty Ltd v Jack [2000] NSWSC 1064 In the matter of Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 Jack Brabham Engines Limited v Beare [2010] FCA 872 Category: Procedural rulings Parties: Curve Securities Pty Ltd (Plaintiff) Alexander Young (First Defendant) Ord Minnett Limited (Second Defendant) Representation: Counsel: A Fernon SC (Plaintiff) S Docker with A Gandar (Second Defendant)

Solicitors: Hitch Advisory (Plaintiff) Tom Howard Legal (First Defendant) Lander & Rogers (Second Defendant) File Number(s): 2021/103525

Judgment 1. The background to this matter is set out in my judgment of 28 July 2022. [1] I shall use the same abbreviations here. 2. To repeat, Curve and Ord Minnett are competitors in the market of trading fixed rate financial investments. Mr Young was, until August 2020, the Associate Director Interest Rate Markets at Curve. Since September 2020, Mr Young has been employed by Ord Minnett as a Fixed Interest Advisor. Mr Young's role at Ord Minnett is substantially the same as was his role at Curve. 3. Curve alleges that, in the course of his employment with Ord Minnett, Mr Young has: 1. approached, solicited, and accepted Curve's clients; 2. disclosed and used confidential information (described as "Curve's Business Information") obtained in the course of his employment with Curve; and 3. commenced his new employment in direct competition with Curve. 1. Curve alleges that Mr Young has taken these steps in accordance with what Curve alleges to be an "Arrangement" [2] entered into with Ord Minnett while he was still in employment with Curve, in contravention of restraints and non-disclosure clauses in his employment contract and in breach of his contractual, equitable and fiduciary duties to Curve. 2. Curve also alleges that Ord Minnett is, on various bases, accessorily liable to Curve for Mr Young's conduct. 3. There has been discovery prior to evidence in the course of which Ord Minnett has produced some 5,000 documents relating to 118 former clients of Curve, referred to by the parties as the "Relevant Clients". It is common ground that the Relevant Clients are now clients of Ord Minnett and that Mr Young approached those clients, identified them to Ord Minnett, introduced them to Ord Minnett, or won or procured them as clients for Ord Minnett. 4. By Notice of Motion filed on 2 June 2022, Curve seeks to amend its Summons and Commercial List Statement. By Notice of Motion filed on 16 June 2022, Ord Minnett seeks an order that Curve's then current List Statement be struck out. 5. For the reasons I gave in my judgment of 28 July 2022, I refused to grant Curve leave to amend its Commercial List Statement in accordance with the then proposed draft. 6. On 28 July 2022, in the course of declining to give Curve the leave it then sought, I said that I would give Curve "a further, final opportunity to do so". [3] I directed that Curve circulate the form of any further proposed Amended Commercial List Statement by 12 August 2022. 7. Since then, Curve has circulated four further proposed forms of the Amended Commercial List Statement, each form evidently responding to criticisms made on behalf of Ord Minnett and Mr Young to the earlier iterations. 8. On 14 October 2022, I heard argument about the fourth such iteration ("the Proposed List Statement"). 9. Ord Minnett and Mr Young oppose Curve having leave to file the Proposed List Statement in two respects.