LCM Litigation Fund Pty Ltd v Coope [2016] NSWSC 1221

Supreme Court New South Wales

Medium Neutral Citation: LCM Litigation Fund Pty Ltd v Coope [2016] NSWSC 1221 Hearing dates: 15 – 16 and 28 June 2016 Date of orders: 01 September 2016 Decision date: 01 September 2016 Jurisdiction: Equity Before: Robb J Decision: (1) Order that the plaintiff's Amended Summons and Amended Statement of Charge be dismissed. (2) Order that the plaintiff pay the defendant's costs of the proceedings. (3) Order that the exhibits and any documents produced on subpoena or notice to produce may be returned forthwith in accordance with the Rules. Catchwords: CONTEMPT OF COURT – construction of undertaking – defendant gave an undertaking to court of non-solicitation of clients – plaintiff alleges that the defendant breached his undertaking by communicating with the plaintiff's clients – whether the word "client" in the undertaking was intended to have its ordinary meaning or the meaning as defined in the employment agreement – consideration of undertaking as a whole – held the term was intended to have its ordinary meaning – held Mr Duncan was not a client of the plaintiff but Mr Farnsworth was – whether the defendant's communication with Mr Farnsworth involved solicitation – held email communications with Mr Farnsworth constituted a solicitation – whether the defendant had direct dealings with Mr Farnsworth – held the defendant did not have direct dealings with Mr Farnsworth whilst working for the plaintiff – held plaintiff failed to establish beyond reasonable doubt that the undertaking was breached – held plaintiff's amended summons and amended statement of charge be dismissed Legislation Cited: Corporations Act 2001 (Cth) Cases Cited: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 Australasian Meat Industry Employees Union and Others v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 Barrett v Ecco Personnel Pty Ltd [1998] NSWCA 30 Construction, Forestry, Mining and Energy Union v Grocon Constructors (Vic) Pty Ltd [2014] VSCA 261 Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 Lee v New South Wales Crime Commission [2012] NSWCA 262; (2012) 224 A Crim R 94 NE Perry Pty Ltd v Judge [2002] SASC 312; (2002) 84 SASR 86 National Australia Bank Ltd v Juric [2001] VSC 375 Pang v Byland Holdings Pty Ltd [2011] NSWCA 69 Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 Wysenko v Wysenko [2012] NSWSC 732 1st Available v Melocco [2016] NSWSC 30 Category: Principal judgment Parties: LCM Litigation Fund Pty Ltd (plaintiff) Patrick Mark Coope (defendant) Representation: Counsel: AJ Sullivan QC/T O'Brien (plaintiff) Y Shariff/V Bulut (defendant)