3D Access Pty Ltd v Buzasi

Case [2025] FCA 1105

FEDERAL COURT OF AUSTRALIA

3D Access Pty Ltd v Buzasi [2025] FCA 1105   

File number: VID 1077 of 2025
Judgment of: SNADEN J
Date of judgment: 9 September 2025
Catchwords: PRACTICE AND PROCEDURE – interlocutory application for urgent injunctive relief and freezing orders – where first respondent a former employee, director and shareholder of first applicant – where employment contract contained restraint clause prohibiting post-employment solicitation of  or interference with clients – where first respondent’s notice of departure as a shareholder given under exit agreement but share transfer ultimately executed under a separate agreement containing entire agreement clause – where exit agreement contained a restraint clause prohibiting competition – where first respondent started a competing business about six months after departure – where applicants seek injunction to prevent amongst other things competition with first applicant – where making of application attended by delay – enforceability of covenants in restraint of trade – whether prima facie case established – whether balance of convenience favours grant of injunction – whether circumstances such as to warrant freezing orders – application dismissed in part    
Cases cited:

Birdanco Nominees Pty Ltd v Money (2012) 36 VR 341

British Reinforced Concrete Co v Schelff [1921] 2 Ch 563

Capgemini US v Case [2004] NSWSC 674

Freedom Finance Accounting Pty Ltd v Goldstein [2017] VSC 179

Just Group Ltd v Peck (2016) 344 ALR 162

Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union [2019] FCA 1265

Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Scyne Business Services Pty Ltd v Heaney (2024) 329 IR 461

Southern Cross Computer Systems Pty Ltd v Palmer (No 2) [2017] VSC 460

Zhen v Mo [2008] VSC 300

Division: General Division
Registry: Victoria
National Practice Area: Commercial and Corporations
Sub-area Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 93
Date of hearing: 1 and 2 September 2025
Counsel for the Applicants: Mr L Magowan
Solicitor for the Applicants: Olivine Lawyers
Counsel for the Respondents: Ms L Collaris
Solicitor for the Respondents: Mahons with Yuncken & Yuncken Lawyers

ORDERS

VID 1077 of 2025
BETWEEN:

3D ACCESS PTY LTD

First Applicant

MICHAEL COLIN DOBBS

Second Applicant

MCD NOMINEES PTY LTD (and others named in the Schedule)

Third Applicant
AND:

ADAM BUZASI

First Respondent

AFB INVESTMENT GROUP PTY LTD

Second Respondent

ARTICULATE ACCESS PTY LTD

Third Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

9 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.Save insofar as it concerns an application for a freezing order against Taylah Jai Buzasi, the applicants’ amended interlocutory application dated 8 September 2025 be dismissed.

2.The hearing of the applicants’ amended interlocutory application dated 8 September 2025, insofar as it concerns an application for a freezing order against Taylah Jai Buzasi, be adjourned to 9.30am on Thursday, 11 September 2025.

3.Costs be reserved.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

SNADEN J:

  1. By an amended interlocutory application dated 8 September…

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AGLC
3D Access Pty Ltd v Buzasi [2025] FCA 1105
Case
[2025] FCA 1105
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, 3D Access Pty Ltd, a disability access consulting company, brought an application against the former employee, director, and shareholder, Mr Buzasi, and his wife, Ms Buzasi, seeking injunctive relief and freezing orders to prevent Mr Buzasi from competing with 3D Access and to protect the applicants' assets. The application arose from Mr Buzasi's departure from 3D Access and subsequent establishment of a competing business, Articulate Access. The applicants argued that Mr Buzasi breached restraint clauses in his employment contract and an exit agreement, and that he improperly retained and used confidential information from 3D Access.

The court was required to decide whether the applicants established a prima facie case for injunctive relief and whether the balance of convenience favoured the grant of such relief. Additionally, the court had to determine if the circumstances warranted the imposition of freezing orders to protect the applicants' assets. The court considered the enforceability of the restraint clauses, the strength of the prima facie case, and the balance of convenience in determining whether to grant the relief sought.

The court found that while a prima facie case might exist for breach of the restraint clauses, it was not especially strong. The court had serious reservations about the enforceability of the restraint clauses and found no evidence to support the applicants' claim that Mr Buzasi improperly retained or used confidential information. The court concluded that the balance of convenience did not favour the grant of injunctive relief, and that the applicants did not establish a credible threat of asset dissipation that would warrant the imposition of freezing orders. Consequently, the application was dismissed in part.

In summary, the court dismissed the applicants' amended interlocutory application dated 8 September 2025 insofar as it concerns an application for a freezing order against Taylah Jai Buzasi. The hearing of the application concerning the freezing order against Taylah Jai Buzasi was adjourned to 9.30am on Thursday, 11 September 2025. Costs were reserved.

Orders

Orders of the court

1. Save insofar as it concerns an application for a freezing order against Taylah Jai Buzasi, the applicants’ amended interlocutory application dated 8 September 2025 be dismissed.

2. The hearing of the applicants’ amended interlocutory application dated 8 September 2025, insofar as it concerns an application for a freezing order against Taylah Jai Buzasi, be adjourned to 9.30am on Thursday, 11 September 2025.

3. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the application—insofar as it seeks relief against the respondents—should and will be dismissed. It will be necessary to schedule a further hearing to determine the relief sought against the related party.BACKGROUND The first applicant (“3D Access”) is in the business of disability access consulting in the built environment. It is one part of a broader building consultancy group of companies known as “DDEG”. The second and fourth applicants, Mr Dobbs and Mr Doherty, started 3D Access as owner-directors in mid- 2017. Less than a year thereafter, Mr Dobbs and Mr Doherty brought on the first respondent, Mr Buzasi, as its associate director. The terms of Mr Buzasi’s employment were recorded in a contract of employment dated 19 April 2018. Clause 21 of that contract is what is commonly known as a post-employment restraint. By its terms, Mr Buzasi relevantly covenanted, on the cessation of his employment, not to:(a)“solicit business from any client”; or(b)“interfere with the relationship between [3D Access] and its Clients”. There is no geographic limitation to that stricture. As to duration, it adopted a familiar “cascading” mechanism, creating separate and severable obligations for periods of up to one year. On 31 December 2019, Mr Buzasi was elevated to Managing Director of 3D Access; and, on 28 May 2020, he acquired 40% of the shares in the company. On 16 February 2022, 3D Access, its owner-directors and the corporate vehicles through which they held their shares entered into two contracts. There is a dispute as to who or what it was that led to the making of those agreements, but little if anything turns on that. By the second instrument (the “Exit Agreement”), the directors established (amongst other things) a procedure by which any one of them might, at some later date, voluntarily depart from the business, and the terms and conditions upon which that would occur. That agreement afforded to a departing shareholder a “sell option” in respect of his equity (either owned personally or via his corporate nominee). If a shareholder were to leave of his own accord, the continuing shareholders had a right of first refusal to purchase his shares for 80% of their market value. That would be on the terms that the continuing shareholders make annual payments—being 70% of the percentage of equity held by the departing shareholder multiplied by the EBITDA from the prior financial year—until the purchase price is paid in full. All of that would unfold on the service of particular notices by the departing shareholder. Assuming that that all came to pass—and “in consideration of the continuing proprietors paying and agreeing to continue to the payments of the purchase price”—the departing shareholder would then be bound by a restraint of trade set out in cl 4.10 of the Exit Agreement. That clause prevents the departing shareholder from competing with 3D Access “directly or indirectly”, including by “canvassing, soliciting, counselling, procuring, inducing, encouraging, enticing customers away from [3D Access]”. That restriction purports to have effect throughout Australia and for two years from the date of transfer.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Again, then, such prima facie case as I accept exists cannot be described as especially strong.Conclusion On the evidence as it presently stands (albeit without the benefit of challenge), the applicants have established a prima case that the respondents (or, perhaps, Mr Buzasi and the second respondent) have conducted and continue to conduct themselves in breach of a binding and enforceable restraint (namely, cl 4.10 of the Exit Agreement). Such case as there is in that regard is, in my estimate, quite weak. At this juncture, the better view appears to be that the Exit Agreement was superseded and I have serious reservations that cl 4.10 is not void on public policy grounds. I should also mention here the additional contention that the applicants advance about the respondents having retained and used their confidential information (or, at any event, some confidential information). It is fair to say that that wasn’t put as forcefully as the submissions that were advanced about the enforcement of the restrictive covenant; but nor was it abandoned. It can swiftly be addressed. I do not accept that the evidence discloses a prima facie case that the respondents (or any of them) have wrongly retained or used any confidential information, including business or marketing plans, client and supplier lists, client contact information, pricing information, sales history, or precedent consulting reports. The submissions to the contrary do not rise beyond bald speculation and, in any event, collide headlong with Mr Buzasi’s positive denials. The applicants seek to establish the prima facie case upon which they move by inviting the court to infer that, having had access to material of the kinds described above, Mr Buzasi should be understood to have deployed his knowledge of that material for the benefit of Articulate Access. There was, perhaps, a further dimension to the contention. Mr Buzasi’s evidence included documentary material that, the applicants suggest, reflects his having some ongoing level of access to its information technology or to information that it has shared with clients. Again (and with respect), that submission did not extend beyond assertion. No doubt Mr Buzasi has, in his new and current endeavour, sought to apply skills and knowledge that were developed during his tenure at 3D Access. Doing so does not, of itself, involve the improper retention or use of any confidential information. Absent some suggestion that Mr Buzasi has taken something that he ought not have, or has sought to deploy knowledge that rises to the level of a trade secret, I do not consider there to be much to the applicants’ contention. I do not accept that there is a prospect that the court might properly infer from the evidence as it presently stands that the respondents (or any of them) have improperly retained or used any of the applicants’ confidential information. I do not consider that the applicants have established a prima facie case in that regard.Balance of convenience

Ratio Decidendi

Legal Principle Established

In respect of Forrest’s J fifth principle, the court may, in circumstances where the arguable case against a respondent involves proof of gross dishonesty, properly infer the threat that the respondent will dissipate assets: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 336 (Meagher J).Consideration The freezing order that is sought as against the respondents is sought because the applicants are concerned that Mr Buzasi might deal with his assets in a way that might frustrate any success that they have at trial. That concern arises for the following reasons, namely that: (1)Mr Buzasi’s conduct—which although not fraudulent is, they say (in light of the restraints by which they maintain that he is bound), properly described as a form of sharp practice—is conduct of the kind from which the court might more readily infer an intention to frustrate; (2)in June 2025, Mr Buzasi transferred his family home (then owned jointly with his wife) into the name of his wife alone; and (3)Mr Buzasi told his accountants that he was doing so “for risk purposes” because he was working again and wanted “to limit [his] exposure if any issues were ever to occur”. It is convenient to address each of these in turn. Mr Buzasi’s conduct in setting up Articulate Access cannot necessarily be impugned as dishonest, fraudulent or even “sharp”. His explanation for setting up the company in October 2024, supported in at least a limited way by documentary evidence (and contemporaneous records of why it was done), is connected to the maintenance of his registration as a building surveyor and associated professional indemnity insurance. The documentary record from the time makes tolerably clear that Mr Buzasi did not leave 3D Access with any intention to continue working in competition with it. It was not until several months later (at some point between January and March 2025) that Mr Buzasi dipped his toe back into the proverbial water. In circumstances where there was a genuine question about the enforceability (and even the continuing operation) of cl 4.10 of the Exit Agreement, and Mr Buzasi’s position on cl 21 of the employment agreement was that it would at most only be enforceable for six months, nothing about that gives rise to any inference of dishonesty. Bound up in the allegation of dishonesty is Mr Mulholland’s evidence that Mr Buzasi told him before his departure that he would probably retrain as a counsellor. Mr Buzasi rejects that that conversation occurred or that such a path was ever in his contemplation. It doesn’t much matter. Even assuming that the conversation did occur, it wouldn’t necessarily be relevantly dishonest for Mr Buzasi subsequently to choose to continue on his previous career trajectory. In respect of the transfer of the matrimonial house, the applicants’ narrative is that Mr Buzasi took that step in response to their letter of demand. That proposition is attended by significant doubt. The transfer was actioned months after the letter was received, and several weeks after a response to it was sent. There are any number of reasons why ownership in a family home might be structured in a certain way; and equally, why it might be altered. No doubt protection from suit factored as one consideration; but I do not accept that there is a credible suggestion that anything was done specifically to address the circumstances of this matter (accepting, as I must, that the position might change at trial with the benefit of testing).