Singtel Optus v Almad [2013] NSWSC 1427

Supreme Court New South Wales

Medium Neutral Citation: Singtel Optus v Almad [2013] NSWSC 1427 Hearing dates: 29/07/2013, 30/07/2013, 31/07/2013, 05/08/2013, 06/08/2013, 07/08/2013, 08/08/2013, 09/08/2013, 12/08/2013, 13/08/2013, 14/08/2013, 15/08/2013, 19/08/2013, 20/08/2013, 21/08/2013 Decision date: 30 September 2013 Jurisdiction: Equity Division - Commercial List Before: McDougall J Decision: See at [362]. Plaintiffs to serve and submit draft orders. Catchwords: EQUITY - fiduciary duties - breach of fiduciary duties - employer and employee - where employee acts as a shadow director of supplier - where employee fails to disclose several conflicts of interest - where advantage accrues to third party that is the alter ego of the fiduciary employee

EQUITY - fiduciary duties - breach of fiduciary duties - knowing involvement - knowledge - what constitutes knowledge - where a person is aware of the circumstances that would indicate, to an honest and reasonable person, a breach of fiduciary duty

REMEDIES - equitable remedies - equitable compensation - breach of fiduciary obligations - employer and employee - conflict of interest - failure to disclose - causation - test for causation - whether loss would have occurred in the absence of the breach - obligation to make restitution not limited to common law principles governing damage, foreseeability and causation

TORT - trespass to goods - conversion

PRACTICE & PROCEDURE - pleadings - where evidence raises issues not pleaded - where party fails to object to the admission of evidence - cases determined by the evidence, not the pleadings Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Australian Securities and Investments Commissions v Hellicar (2012) 86 ALJR 522 Banque Commerciale SA (In Liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Demagogue Pty Limited v Ramensky (1992) 39 FCR 31 Farah Constructions Pty Limited v Say-Dee Pty Ltd (2007) 230 CLR 89 Gencorp Limited v Dalby (2002) 2 BCLC 734 Grimaldi v Chameleon Mining NL (No.2) (2012) 200 FCR 296 Hardy v Your Tabs Pty Limited [2000] NSWCA 150 Hill v Rose [1990] VR 129 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653 Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53,193 Michael Wilson and Partners Limited v Nicholls (2011) 86 ALJR 14 Re Dawson (deceased) [1966] 2 NSWR 211 Warman International v Dwyer (1995) 182 CLR 544 Category: Principal judgment Parties: Singtel Optus Pty Ltd (First Plaintiff) Optus Networks Pty Ltd (Second Plaintiff) Optus Administration Pty Ltd (Third Plaintiff) Almad Pty Ltd (First Defendant) Sumo Distribution and Storage Pty Ltd (Second Defendant) Leon Mark Curtis (Third Defendant) Craig Hasler (Fourth Defendant) PJC333 Pty Limited (Fifth Defendant) Representation: Counsel: J Stoljar SC / DJA Mackay (Plaintiffs) BW Rayment QC / J T Johnson / IJ King (First, Third, Fourth and Fifth Defendants) Second Defendant (Unrepresented) Solicitors: Minter Ellison (Plaintiffs) MCW Lawyers (First, Third, Fourth and Fifth Defendants) Second Defendant (Unrepresented) File Number(s): 2011/139541