Engadine Medical Imaging Services Pty Ltd as trustee for the Engadine Unit Trust v Mena Ibrahim [2024] NSWSC 1399

Supreme Court New South Wales

Medium Neutral Citation: Engadine Medical Imaging Services Pty Ltd as trustee for the Engadine Unit Trust v Mena Ibrahim [2024] NSWSC 1399 Hearing dates: 13, 15 and 16 May 2024 Date of orders: 06 November 2024 Decision date: 06 November 2024 Jurisdiction: Equity Before: McGrath J Decision: (1) The further amended statement of claim filed 18 July 2024 is dismissed. (2) The plaintiffs are to pay the costs of the defendants. Catchwords: CONSUMER LAW — misleading or deceptive conduct — representations as to future matters — silence or non-disclosure — alleged representations by first defendant as to ongoing operation of the first plaintiff's business, lease of business premises, value of business, establishment of competing business, and terms of deed of settlement — insufficient evidence that the pleaded representations were made — insufficient evidence of and evidence contraindicating reliance by plaintiffs on alleged representations — HELD — claims of misleading or deceptive conduct against first defendant dismissed — deed of settlement applies in accordance with its terms CORPORATIONS — directors and officers — whether first defendant was an officer of the first plaintiff — s 9AD(1)(b) Corporations Act — where first defendant participated in some decisions affecting corporation's business — insufficient to make him an officer of the company — directors' duties — alleged breach by third defendant of statutory and fiduciary duties — duty not to use information improperly — duty not to use position as director improperly — duty of care and diligence — duty to act in good faith in best interests of company — alleged breaches involving failure to exercise lease option, establishing competing business, and taking staff and business — insufficient evidence of pleaded conduct by third defendant said to constitute breaches — HELD — first defendant not an officer of first plaintiff; unnecessary to determine associated claims against him — claim against third defendant dismissed EQUITY — breach of confidence — first defendant's access to first plaintiff's confidential business and financial information — alleged misuse by first defendant — plaintiffs' failure to identify confidential information with precision — failure to particularise misuse or resulting loss to plaintiffs — HELD — breach of confidentiality claim against first defendant dismissed Legislation Cited: Competition and Consumer Act 2010 (Cth) s 131, Schedule 2 — Australian Consumer Law, ss 4, 18, 236, 237, 243 Corporations Act 2001 (Cth) s 9AD, 180, 181, 182, 183 Cases Cited: Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 Effem Foods Pty Limited v Lake Cumbeline Pty Limited [1999] HCA 15; (1999) 161 ALR 599 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Global Risk Alliance Group Services Pty Ltd v Harmer [2024] NSWSC 79 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 Lin v Zheng [2023] NSWCA 174 Ling v Pang [2023] NSWCA 112 Manly Council v Byrne [2004] NSWCA 123 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 Mudgee Dolomite & Lime Pty Ltd v Robert Francis Murdoch; In the matter of Mudgee Dolomite & Lime Pty Ltd [2020] NSWSC 1510 Osborne v Iris Diversified Property Pty Limited [2014] NSWSC 1488 Payne v Parker [1976] 1 NSWLR 191 Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465; [2012] HCA 18 Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 SSABR Pty Ltd v AMA Group Limited [2024] NSWCA 175 Streetscape Projects (Australia) Pty Ltd v City of Sydney (2013) 85 NSWLR 196; [2013] NSWCA 2 Touma v Highfields Australia Pty Ltd [2024] NSWCA 160 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Watson v Foxman (1995) 49 NSWLR 315 White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 Wormald v Maradaca Pty Ltd [2020] NSWCA 289 Category: Principal judgment Parties: Engadine Medical Imaging Services Pty Ltd ATF the Engadine Unit Trust (First Plaintiff) Ali Kyatt (Second Plaintiff) Advanced Imaging Pty Ltd ATF the Kyatt Family Trust (Third Plaintiff) Mena Ibrahim (First Defendant) Engadine Medical Imaging Pty Ltd (Second Defendant) Nabeel Chaudhry (Third Defendant) Warilla Diagnostic Imaging Pty Ltd ATF Warilla Diagnostic Image Trust trading as Focus Radiology (Fourth Defendant) Focus Radiology Dapto Pty Ltd (Fifth Defendant) Focus Radiology Warrawong Pty Ltd (Sixth Defendant) Dapto Imaging Pty Ltd ATF the Dapto Medical Imaging Unit Trust (Seventh Defendant) Warrawong Imaging Pty Ltd ATF the Warrawong Medical Imaging Unit Trust (Eighth Defendant) Representation: Counsel: M Pesman SC and M Klooster (Plaintiffs) M Condon SC and M Collins (First, Second, Seventh and Eighth Defendants) G Sirtes SC and F Di Lizia (Third, Fourth, Fifth and Sixth Defendants)