Orica Investments Pty Ltd & 2 Ors v William McCartney & 3 Ors [2007] NSWSC 645

New South Wales Supreme Court

CITATION : Orica Investments Pty Ltd & 2 Ors v William McCartney & 3 Ors [2007] NSWSC 645

3-5 April 2007; HEARING DATE(S) : 10-13 April 2007; 16-20 April 2007

JUDGMENT DATE : 25 June 2007

JURISDICTION : Equity Division

JUDGMENT OF : White J

DECISION : Counsel to bring in short minutes of order in accordance with reasons.

CATCHWORDS : CONTRACTS – Construction and interpretation of contracts – Share sale agreement – First defendant's covenant in restraint of trade – Restraint against directly or indirectly carrying on business – Held restraint applied to acts of first defendant by which the first defendant or the second defendant carried on a proscribed business – Held that first defendant's providing working capital to and being a beneficial shareholder in second defendant did not contravene restraint - Held that enticing supplier away from second plaintiff to second defendant, proffering internal advice and assistance to second defendant, and dealings with third parties on behalf of the third defendant, contravened restraint. - CONTRACTS – Construction and interpretation of contracts – Prohibition in share sale agreement against enticing away from first plaintiff any customer, supplier or employee of "Restricted Business" – Held that first defendant breached share sale agreement by enticing supplier and certain employees away from first plaintiff. - CONTRACTS – Obligation of confidentiality – Obligation breached by first defendant by disclosure of contact details of supplier to second defendant. - EQUITY – Equitable remedies – Injunctions – Injunction to restrain continued breaches of contract. - EQUITY – Fiduciary duties – Whether fiduciary duties owed by first defendant as a consultant – Where fiduciary duties owed as director and employee ceased when directorship and employment ceased – Where no evidence of first defendant being given tasks to perform from which fiduciary obligation to second plaintiff might arise - Whether fiduciary duties to second plaintiff arose from terms of consultancy contract with third plaintiff and first defendant's possession of confidential information – Held that fiduciary relationship with second plaintiff not established. - EQUITY – Confidential information – Where second defendant in possession of second plaintiff's confidential pricing information – Where evidence of misuse of certain confidential information but not other information – Injunction to restrain misuse of such information. - TORTS – Interference with contractual relations – Knowing and intentional interference – Held that second and third defendants liable for knowingly interfering with first defendant's contractual relations. - TORTS – Other economic torts – Unlawful interference with contractual relations – First defendant's covert provision of funds amounted to breach of consultancy agreement but not shareholders share sale agreement – Interference by fourth defendant by assisting with covert provision of funds – No knowing interference or intention to cause loss on the part of fourth defendant – Held that fourth defendant did not unlawfully interfere with contractual relations.