Bencross Pty Ltd v Teasdale [2003] NSWSC 54

New South Wales Supreme Court

CITATION : Bencross Pty Ltd v Teasdale [2003] NSWSC 54 HEARING DATE(S) : 10/02/03 JUDGMENT DATE : 18 February 2003

JURISDICTION: Equity Division Corporations List JUDGMENT OF : Barrett J DECISION : See paragraphs 13 to 15

CATCHWORDS : PROCEDURE - whether civil proceedings in Local Court may be removed into Supreme Court for consolidation with existing Supreme Court proceedings Corporations Act 2001 (Cth) District Court Act 1973 LEGISLATION CITED : Industrial Arbitration Act 1996 Local Court (Civil Claims) Act 1970 Supreme Court Rules CASES CITED : Buzera Pty Ltd v Mezan Enterprises Pty Ltd (1998) NSW ConvR 56,656 Palm Springs Ltd v Darling (2002) 192 ALR 763 PARTIES : Bencross Pty Limited - Plaintiff Angela Teasdale - Defendant FILE NUMBER(S) : SC 5612/02 COUNSEL : Mr C.D. Freeman - Plaintiff Mr M.B. Lee - Defendant SOLICITORS : Maurice Harrison & Associates - Plaintiff James A. Moustacas & Co - Defendant

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

TUESDAY, 18 FEBRUARY 2003

5612/02 – BENCROSS PTY LIMITED v ANGELA TEASDALE JUDGMENT 1 The plaintiff carries on a real estate agency business at Bondi Beach. In June 2001, the defendant became an employee of the plaintiff and began work as a sales executive. The employment ended some seven months later, in January 2002, and the defendant went to work for an estate agency at Bondi Junction. The plaintiff alleges that the defendant thereafter divulged to her new employer certain information obtained in the course of her employment by the plaintiff and took steps which resulted in two properties in respect of which the plaintiff had been appointed selling agent being taken out of its hands and listed instead with the defendant's new employer as selling agent. 2 On 26 April 2002, the plaintiff sued the defendant in the Local Court at the Downing Centre by way of ordinary statement of claim claiming $40,000 damages plus costs on account of alleged breaches of contract committed by the defendant by reason of the events to which I have referred. On 24 May 2002, the defendant filed in the Local Court notice of grounds of defence denying the entitlement of the plaintiff to the relief sought in the ordinary statement of claim. The defence, as subsequently amended, relies in part on the proposition that the supposed contractual terms upon which the plaintiff sues are inconsistent with provisions of an applicable award made under the Industrial Arbitration Act 1996 and are accordingly unenforceable. The defendant also filed notice of cross-claim in respect of a claim against the plaintiff for $9,291.75 plus interest on account of commissions allegedly due but unpaid for sales arranged by the defendant while an employee of the plaintiff. The plaintiff, as cross-defendant, denies liability. 3 The present application (the nature of which I shall mention presently) results from separate but closely related steps subsequently taken by the plaintiff against the defendant. By an originating process filed in this court on 21 November 2002, the plaintiff claims, as against the defendant, declarations that the defendant breached duties owed to the plaintiff pursuant to ss.182 and 183 of the Corporation Act 2001 (Cth) (concerned with improper use of position or information by officers and employees of corporations) plus orders for the payment of damages under s.1324 or compensation under s.1317H of that Act. There is, in the alternative, a claim for damages corresponding with that articulated in the ordinary statement of claim in the Local Court. The plaintiff has prepared but not yet filed in this court a consolidated statement of claim pleading in full the claims in the originating process (annexure A to the affidavit of Grace Silveira sworn on 25 November 2002 and filed herein on 26 November 2002). 4 On 10 February 2002, I heard an application initiated by the plaintiff's interlocutory process filed on 26 November 2002. The relief sought is: