Cannon-Brookes Services Pty Ltd v Chiu - [2025] NSWSC 104

Supreme Court

New South Wales

Medium Neutral Citation: Cannon-Brookes Services Pty Ltd v Chiu [2025] NSWSC 104
Hearing dates: 24 February 2025
Date of orders: 25 February 2025
Decision date: 25 February 2025
Jurisdiction: Equity - Duty List
Before: Williams J
Decision:
See orders at [46]-[55] and the Annexures to this decision.

Catchwords:
EQUITY – Interlocutory injunctions – Interlocutory mandatory injunction for delivery up and inspection of devices
EQUITY – Interlocutory injunctions – Interlocutory injunction preventing the destruction of information contained on devices of former employee
EQUITY – Interlocutory injunctions – Interlocutory injunction restraining the disclosure of confidential information obtained in the course of employment following termination

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56-58
Uniform Civil Procedure Rules 2005 (NSW), rr 25.19, 25.50, Pt 25 Div 3

Cases Cited:
AG Australia Holdings Limited v Burton [2002] NSWSC 454
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Computershare Ltd v Perpetual Registrars Ltd [2000] VSC 139
James v Faddoul [2006] NSWSC 1330
Sporte Leisure Pty Ltd v Paul’s International Pty Ltd [2009] FCA 445

Texts Cited:
N/A

Category: Principal judgment
Parties:
Cannon-Brookes Services Pty Ltd (ACN 616 170 542) (Plaintiff)
Kevin Chiu (Defendant)
Representation:
Counsel:
T Breakspear SC with D Mahendra (Plaintiff)
J Fernon SC with V Bosnjak (Defendant)
Solicitors:
K&L Gates (Plaintiff)
Watkins Tapsell (Defendant)

File Number(s): 2025/64554
Publication restriction: N/A

Judgment

Introduction

The plaintiff, Cannon-Brookes Services Pty Ltd (CBS), is the former employer of the defendant, Mr Kevin Chiu.
It is not in dispute that Mr Chiu entered into an agreement with CBS (then known as Grokventures Pty Ltd) on 17 April 2020 for his employment in the role of “Group Financial Controller of Cannon-Brookes Collective” commencing on 18 May 2020 (the Employment Contract), and that Mr Chiu was employed by CBS in that position until his employment was terminated by CBS on 4 February 2025. It is common ground that CBS did not issue any laptop, mobile phone or other electronic device for him to use in the performance of his duties as Group Financial Controller, and that Mr Chiu therefore used his personal electronic devices in the performance of those duties.
It is not in dispute that CBS terminated Mr Chiu’s employment on the ground that, inter alia, CBS alleged that Mr Chiu had made an “unauthorised disclosure of confidential information about the affairs of the Cannon-Brookes Collective (CBC) to external third parties, in particular Ms Catherine Manuel”, and CBS concluded following an internal investigation that the allegation was substantiated. Mr Chiu disputes the allegation.
CBS commenced these proceedings by Summons filed in Court in the Equity Duty List on 18 February 2025 claiming by way of final relief:

an order permanently restraining Mr Chiu from using, disclosing, communicating, publishing or retaining any information (except information that is lawfully in the public domain) defined as Confidential Information in clause 15.1 of the employment agreement between CBS and Mr Chiu…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWSC 104
Decision Date: 25 February 2025

CaseChat Overview and Summary

Cannon-Brookes Services Pty Ltd brought an application against Chiu, a former employee, for several interlocutory injunctions. The company sought an order for the delivery up of devices that contained confidential information, an inspection of the devices, a prohibition on Chiu destroying information contained on the devices, and a prohibition on Chiu disclosing confidential information obtained during his employment. Chiu opposed the application. The court considered whether the application met the traditional requirements for interlocutory relief, particularly whether the applicant had a serious question to be tried and a prima facie case. The court also considered the balance of convenience and the need to protect confidential information.

The court found that the applicant had established a serious question to be tried and a prima facie case in relation to each of the reliefs sought. The applicant had demonstrated a real prospect of success at trial, and the balance of convenience favoured granting the reliefs. The court considered that there was a serious risk that confidential information would be destroyed or disclosed if the injunctions were not granted. The court found that the applicant had established that the information was confidential, and that Chiu had access to the information and devices. The court held that the applicant had demonstrated a real prospect of success at trial, and that the balance of convenience favoured granting the reliefs.

The court granted the applicant’s application for an interlocutory mandatory injunction for the delivery up of the devices, an interlocutory injunction preventing the destruction of information contained on the devices, and an interlocutory injunction restraining the disclosure of confidential information obtained in the course of employment following termination. The court ordered that Chiu deliver up all devices that contained confidential information to the applicant within seven days. The court also ordered that Chiu not destroy any information contained on the devices or disclose any confidential information obtained in the course of employment following termination.

Orders