Resilium Pty Ltd v Nest Insurance Consult Pty Ltd [2024] NSWSC 1190

Supreme Court New South Wales

Medium Neutral Citation: Resilium Pty Ltd v Nest Insurance Consult Pty Ltd [2024] NSWSC 1190 Hearing dates: 9 and 10 September 2024 Date of orders: 20 September 2024 Decision date: 20 September 2024 Jurisdiction: Equity - Commercial List Before: Hammerschlag CJ in Eq Decision: Cross-claimant's cross-claim against the cross-defendants, and all other claims and cross-claims in the proceedings dismissed Catchwords: CONTRACTS – Breach of Contract – Cross-Claim for damages for breach of a contractual term of confidentiality – The cross-claimant was an authorised representative and agent, of the first cross-defendant insurance broker and Australian Financial Services Licence holder, under a written Authorised Representative Agreement (the Agreement) – The Agreement contained a provision that during and after termination of the Agreement, each party must keep confidential and must not use the other party's Confidential Information (a defined term) except as necessary to perform the Agreement or as required by law – The Agreement and the cross-claimant's appointment as the first cross-defendant's Authorised Representative were terminated after the first cross-defendant became aware that the cross-claimant had knowingly provided false information about insured clients to insurance companies to reduce the premium payable – The first cross-defendant transmitted the client information to another Authorised Representative to carry out a policy remediation process and service the clients – The cross-claimant claims that this was in breach of the confidentiality provision and claims damages being the loss of the sale value of the insurance broking portfolio which the cross-claimant was administering – HELD on the proper construction of the Agreement, the information concerned was not Confidential Information – What the first cross-defendant did was required by law – Any loss and damage caused to the cross-claimant was caused by its own acts and not the acts of the first cross-defendant – The cross-claimant failed to place before the Court sufficient material to enable the Court to make a rational assessment of the loss – Methodology adopted by the expert valuers was inappropriate in the circumstances of this case Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Electricity Generation Corporation Ltd v Woodside Energy Ltd (2014) 251 CLR 640 Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (2023) 276 CLR 500 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Spencer v Commonwealth of Australia (1907) 5 CLR 418 Troulis v Vamvoukakis [1998] NSWCA 237 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 Texts Cited: Paul Stanley, The Law of Confidentiality: A Restatement (Hart Publishing, 2008) 55 Category: Principal judgment Parties: Resilium Pty Ltd (Plaintiff / Second Cross-Defendant) Resilium Insurance Broking Pty Ltd (First Cross-Defendant) Nest Insurance Consult Pty Ltd (Defendant / Cross-Claimant) Representation: Counsel: MR Elliott SC with D Ratnam (Plaintiff / Cross-Defendants) P Braham SC with S Gray (Defendant / Cross-Claimant)