Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 1033

New South Wales Supreme Court

CITATION : Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors [2009] NSWSC 1033

HEARING DATE(S) : 15/6/09, 16/6/09, 23/6/09, 24/06/09, 29/06/09, 30/06/09, 13/07/09, 14/07/09, 23/07/09, 24/07/09, 27/07/09 - 30/07/09,6/08/09, 10/08/09, 11/08/09, 13/08/09 17/08/09- 20/08/09, 24/08/09 - 28/08/09, 1/09/09, 2/09/09, 7/09/09, 9/09/09. 10/09/09

JUDGMENT DATE : 6 October 2009

JURISDICTION : Equity Division Commercial List

JUDGMENT OF : Einstein J

DECISION : Plaintiff disentitled to relief by way of a constructive trust. Plaintiff entitled to elect as between ultimate forms of relief on the sundry causes of action upheld in the reasons inter alia including an election for an equitable account of profits or equitable compensation.

CATCHWORDS : Equity - Fiduciary obligations - When and to what extent may employees owe fiduciary obligations to employer - Circumstances in which fiduciary obligations may be regarded as 'spent' - Accessorial liability under second limb of rule in Barnes and Addy - Breaches of contract - Secret profits - Diverting business opportunities from former employer to competing business - Confidential information - Plaintiff law firm offering legal services and business consultancy in Kazakhstan brings proceedings against former employees for having furthered their own interests to their employers detriment by various means - Jurisdiction - Enquiry as to whether foreign law applies to determination of matters litigated - Principled approach to determining questions of foreign law - Proceedings involve consideration of several potentially applicable systems of law - Multiplicity and overlapping nature of issues require Court to consider the level of abstraction appropriate to address issues so as to discharge its ultimate mandate of doing justice between the parties - Fraud - Principles which inform the proper approach to whether or not particular conduct is proven to have been fraudulent - Conspiracy to defraud - Principles - Interference with contractual relations-Principles-Causation-Abuse of process - Defendants claim that proceedings amount to an abuse of process and required to be summarily dismissed-Consideration of what amounts to an abuse of process - Case management - Allegations of abuse of process intertwined with principal issues litigated - Efficiently dictates that both the plaintiffs pleaded case as well as the defendant's abuse of process case be litigated together - Causation - Remedies - Constructive trusts - Election - Split election - Nullus commodum capere potest de injuria sua propria - Overriding purpose rule - Achievement of a just, timely and cost-effective resolution of dispute has an effect upon the Court and upon other litigants - Commercial life depends on timely and just payment of money such that those who claim to be entitled to money should know, as soon as possible, whether they will be paid and those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay - Ethos of Commercial List to determine disputes speedily