Devine Real Estate Concord Pty Limited v Agha

Case •

[2025] NSWSC 837

•

29 July 2025

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Devine Real Estate Concord Pty Limited v Agha [2025] NSWSC 837
Hearing dates: 26 and 27 May 2025
Date of orders: 29 July 2025
Decision date: 29 July 2025
Jurisdiction:Equity
Before: Hmelnitsky J
Decision:

1. On the question of the plaintiffs’ entitlement to damages, direct the parties to bring in agreed short minutes of order to give effect to my findings at paragraphs [87] to [94] by 4:00PM on 12 August 2025.

2. Order that Mr Coombe’s application for damages pursuant to the usual undertaking as to damages given by the plaintiffs be dismissed.

3. Direct the parties to file and serve any evidence and short submissions on costs on or before 4:00PM on 12 August 2025.

4. Direct the parties to file and serve any evidence and short submissions in reply on costs on or before 4:00PM on 19 August 2025.

Catchwords:

CONTRACTS — Remedies — Damages — Loss of chance — Where defendant breached various restraints in employment agreement and shareholders’ agreement — Where breaches caused loss to plaintiffs — Whether ‘Sellars’ discount should be applied to the calculation of damages to be awarded to the plaintiffs

EQUITY — Equitable remedies — Injunctions — Where undertakings made by and injunctions ordered against party who was previously the second defendant — Where plaintiffs gave the relevant undertaking as to damages — Where Court of Appeal reversed findings as to the second defendant’s liability — Whether second defendant now entitled to damages flowing from the undertakings and injunctions

Legislation Cited:

Corporations Act 2001 (Cth) ss 181-183 and 1317H

Cases Cited:

Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1

AEI Insurance Group Pty Ltd v Martin (No 4) [2024] FCA 1110

Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29

Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75

Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27

Commonwealth of Australia v Sanofi [2024] HCA 47; 99 ALJR 213

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Devine Real Estate Concord Pty Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Ithaca Ice Works Pty Ltd v Queensland Ice Supplies Pty Ltd [2002] QSC 222

Searle v The Commonwealth (2019) 100 NSWLR 55; [2019] NSWCA 127

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4

Texts Cited:

Nil

Category:Principal judgment
Parties: Devine Real Estate Concord Pty Ltd (First Plaintiff)
Devine Real Estate Drummoyne Pty Ltd (Second Plaintiff)
Steven James Devine (Third Plaintiff)
EMC Just Holdings Pty Ltd (Fourth Plaintiff)
Wajih Agha aka Roger Agha (Defendant)
Representation:

Counsel:
M Seck (Plaintiffs)
P Doyle-Gray/A Djurdjevic (Defendant)

Solicitors:
Jemmeson & Fisher (Plaintiffs)
Summer Lawyers (Defendant)
File Number(s): 2018/87652
Publication restriction: Nil

JUDGMENT

  1. The first plaintiff (Devine Concord) carried on business as a real estate agency in the inner western suburbs of Sydney. The defendant, Mr Agha, was a licensed real estate agent employed by Devine Concord. He was also a shareholder and director. One of the junior employees of Devine Concord with whom Mr Agha had a particularly close working relationship was Mr Coombe. Mr Coombe was previously the second defendant.

  2. In late 2017, Mr Agha and Mr Coombe decided to leave Devine Concord and to take up with Belle Property Neutral Bay. In the course of doing so, they deliberately solicited clients away from Devine Concord and towards Belle Property Neutral Bay. The steps they took to achieve this diversion of business involved the improper use of information that was confidential to Devine Concord. Not content with merely diverting business away from Devine Concord and taking its confidential information, Mr Agha sabotaged Devine Concord’s files and databases so that it would not easily be able to contact the clients whose information and business had been diverted to Belle Property Neutral Bay.

  3. Devine Concord, together with the other plaintiffs whom I will describe shortly, commenced these proceedings on 19 March 2018 and immediately sought urgent interlocutory relief to restrain Mr Agha and Mr Coombe from using Devine Concord’s confidential information and from acting for certain clients on the sale of certain properties pending final resolution of the proceedings.

  4. On 22 March 2018, Mr Agha and Mr Coombe appeared and gave undertakings in order to forestall the making of interlocutory injunctions against them, pending an urgent defended interlocutory hearing. At the same time, the plaintiffs gave the usual undertakings as to damages. The undertakings given by Mr Coombe, which I will set out in full in due course, included undertakings not to use Devine Concord’s confidential information and to:

“…immediately cease and desist soliciting, acting for or accepting instructions from any person whose custom or appointment was obtained by the use of Devine Concord’s confidential information by him, or in respect of the Properties (as defined in Ex. A)”

  1. I was informed by the plaintiffs that ‘Ex. A’ was the original statement of claim. This seems unlikely because that pleading was not filed until May 2018. In the proceedings before me, the parties made indistinct references to there being only ‘two properties’ or ‘two or three properties’ in respect of which Mr Coombe was restrained by reason of this undertaking but I am unable to identify exactly which properties they were referring to.

  2. Mr Coombe’s undertakings were overtaken by injunctions ordered by Parker J on 4 April 2018 and thereafter continued by consent until 20 April 2018 (the undertakings). On that day, Parker J made order 2 against Mr Coombe which was in the same terms as order 8 his Honour subsequently made on 27 April 2018 (the injunctions), as follows:

“8   On the plaintiffs by the counsel giving the usual undertaking as to damages, the second defendant, Mr Coombe, by himself, his servants or agents shall be restrained until further order from:

8.1   using or disclosing [certain confidential information] to:

(a)   gain an advantage for himself;

(b)   gain an advantage for someone else

(c)   cause detriment to [Devine Concord]; or

8.2   being involved in using or disclosing [certain confidential information]…”.

  1. On 4 May 2018, Sackar J ordered that the question of liability be determined separately from other issues in the proceedings. His Honour then conducted an expedited final hearing limited to that question. The hearing commenced in August 2018 and, for reasons of ill-health of counsel as well as some significant deficiencies in the way the parties conducted the hearing, ran for a total of 12 days spread between August 2018 and May 2019, with written submissions filed in May and June 2019.

  2. Sackar J delivered comprehensive reasons on the question of liability on 28 June 2019: Devine Real Estate Concord Pty Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786 (the liability judgment, ‘J’). For the moment, it is enough to note his Honour’s findings that Mr Agha was subject to comprehensive non-compete and non-solicitation restraints in his employment agreement and shareholders’ agreement as well as express obligations not to misuse confidential information and that he breached those obligations. His Honour also found that Mr Agha breached ss 181 to 183 of the Corporations Act 2001 (Cth).

  3. So far as Mr Coombe was concerned, Sackar J found that he was subject to a written employment agreement that included the same non-compete and non-solicitation restraints as contained in Mr Agha’s employment agreement.

  4. Sackar J made final orders on 4 December 2019. Those orders did not include injunctive relief against Mr Coombe. The only final relief granted against or in relation to Mr Coombe was a declaration that he was bound by an employment agreement on the same terms as Mr Agha and a declaration that he had breached ss 181 to 183 of the Corporations Act.

  5. Mr Agha and Mr Coombe appealed to the Court of Appeal from the liability judgment. The appeal was partially successful: Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29 (the appeal judgment, ‘CA’). The Court of Appeal found that the primary judge had erred in finding that Mr Coombe was party to a written employment agreement in the terms identified by his Honour. The Court also found that his Honour erred in finding that Mr Coombe had breached the Corporations Act. Thus, the Court of Appeal set aside the orders concerning Mr Coombe.

  6. This is a slightly abbreviated summary of the procedural history, but it serves to identify the substantive issues remaining in dispute between the parties.

  7. The first concerns the quantification of the damages which the plaintiffs are entitled to recover from Mr Agha following the liability judgment. Their case is essentially that they lost the opportunity to sell and, in some cases, earn management fee income in respect of 29 properties identified in a table handed up at the hearing.

  8. The second concerns the quantification of any damages to which Mr Coombe is entitled pursuant to the usual undertaking as to damages given to secure his initial undertakings (by which he was constrained between 22 March 2018 and 26 April 2018) and to secure the interlocutory injunctive relief initially granted by Parker J (by which he was constrained between 27 April 2018 and 4 December 2019). His case also is put as a lost opportunity case. He says that if he had not been bound by the undertakings and injunctions, he stood a chance of earning a share of the sales commissions on certain properties. He also says that the undertakings and injunctions deprived him of the opportunity to develop a successful career as a real estate agent in the inner western suburbs of Sydney by exploiting customer connections of his own.

Some additional aspects of the procedural history

  1. The original summons was filed in Court pursuant to leave granted by Hallen J, sitting as duty judge, on 19 March 2018. A statement of claim was filed in May 2018. It sought relief on a number of bases against Mr Agha and Mr Coombe, including interlocutory injunctive relief.

  2. The relationship between the plaintiffs was explained by Sackar J in the liability judgment as follows (at J[2]):

“The Plaintiffs are two real estate agencies Devine Real Estate Concord Pty Ltd (First Plaintiff or Concord Office) and Devine Real Estate Drummoyne Pty Ltd (Second Plaintiff or Drummoyne Office), their majority shareholder and managing director Mr Steven Devine (Third Plaintiff) and his family trust company EMC Just Holdings Pty Ltd (Fourth Plaintiff). The real estate agencies are part of the Third Plaintiff’s family real estate business which has five offices in New South Wales and one in the Philippines (the Devine Group).” (emphasis in original)

  1. In these reasons, I am chiefly concerned with the first plaintiff’s claim for damages. It was the employer of the defendant and the evidence shows that it was the entity that lost the opportunity to derive commission and management fee income from the sale and rental of properties. In their submissions before me, the parties sometimes described the claim as being on behalf of the plaintiffs generally and sometimes as being on behalf of Devine Concord. I will sometimes refer to the plaintiffs generally, but I understand that damages for breach of contract and pursuant to the Corporations Act are sought only by Devine Concord.

Pleadings in relation to Mr Coombe’s employment

  1. The plaintiffs alleged that Mr Coombe was first employed as a receptionist ‘from about March 2012’ and that he ‘was offered and accepted a position employed by Devine Concord as a personal assistant to’ Mr Agha in about October 2013. In his defence filed on 13 July 2018, Mr Coombe admitted both of these allegations.

  2. The plaintiffs also alleged that Mr Coombe ‘entered into an employment contract… in or about October 2013’: see paragraph 96 of the statement of claim. The plaintiffs’ primary case was that Mr Coombe’s contract of employment was in the form of a so-called Real Estate Employers Federation (REEF) agreement, being a standard form employment agreement used in the real estate industry. However, the particulars made clear that if Mr Coombe’s employment was not on the terms of a REEF agreement, either expressly (paragraph 96(1)) or because such a state of affairs was to be ‘implied by conduct’ (paragraph 96(2)) or because Mr Coombe was estopped from denying that he was employed on those terms (paragraph 96(3)), then he was otherwise employed ‘on the terms implied by law’ (paragraph 96(4)).

  3. Mr Coombe denied the whole of paragraph 96.

  4. In paragraph 97 of the statement of claim, the plaintiffs alleged that Mr Coombe was bound by a range of obligations as an employee. Some of these allegations depended solely on the existence of a REEF agreement. Others did not. Two obligations that were said to arise by reason of ‘implication of law’ (that is, by reason of being an employee even if not bound by a REEF agreement) were the obligations identified in paragraphs 97(1) and (2). These were that Mr Coombe was required to ‘be faithful to Devine Concord while an employee’ and to ‘keep confidential the Customer Information, Business Documents and other confidential information, while an employee and after his employment ceased’.

  5. Mr Coombe admitted the first but denied the second. His position at trial was therefore that he was an employee, that he was required to ‘be faithful to Devine Concord while an employee’ but that he was not required to ‘keep confidential the Customer Information, Business Documents and other confidential information, while an employee and after his employment ended’.

The undertakings and orders against Mr Coombe in more detail

  1. At 5:00PM on 22 March 2018, the parties by their counsel gave extensive undertakings to the Court which were later recorded in an order made and entered by Hallen J on 28 March 2018. So far as Mr Coombe was concerned, the undertakings were as follows:

“On the Plaintiffs by their counsel giving the usual undertaking as to damages, the second Defendant, without admissions, undertakes that until 4 April 2018, he will:

a. immediately cease and desist using or disclosing the confidential information of Devine Concord directly or indirectly and whether by himself or his servants, agents, contractors, partners or principals;

b. within 7 days disclose to Devine Concord a list of all of the persons to whom Mr Coombe has disclosed Devine Concord’s confidential information;

c. immediately take all necessary steps to return or destroy any of Devine Concord’s confidential information in his possession or control and within 7 days certify to Devine Concord by statutory declaration that he has done so;

d. if there are any copies of Devine Concord’s confidential information in whatever form that Mr Coombe cannot return or destroy, to within 7 days inform of Devine Concord of identifying details of that information and its location and render all reasonable assistance to Devine Concord to retrieve or destroy that confidential information;

e. immediately cease and desist soliciting, acting for or accepting instructions from any person whose custom or appointment was obtained by the use of Devine Concord’s confidential information by him, or in respect of the Properties (as defined in Ex. A);

f. immediately take all steps necessary to remove his name and contact details from all advertising in any form including signboards, handbills, Belle Property marketing documents or materials in any form, any entries on any websites including but not limited to Belle Property, RealEstate.com.au, Domain.com.au identifying Mr Coombe as an agent for the sale or management of properties for which the advertised listing or appointment was obtained;

in respect of the Properties”.

  1. I again refer to my comments at [5] above concerning the difficulty of knowing exactly which ‘Properties’ were being referred to.

  2. I have already set out the order made by Parker J in respect of Mr Coombe on 27 April 2018: see paragraph [6] above.

Findings made by Sackar J

  1. It is unnecessary to repeat the extensive findings made by Sackar J as to the background of the matter and the circumstances in which Mr Agha breached his various contractual and statutory duties. It is however appropriate to observe the following matters.

  2. Mr Agha, as noted, was a shareholder and director of Devine Concord: J[3]. As a shareholder, he was party to a shareholders agreement (as defined at J[20], the 2008 Shareholders Agreement). He was also an employee and was party to a written employment agreement executed in 2011 (as defined at J[26], the First Defendant’s Employment Agreement, also referred to in the judgment as the 2011 Employment Agreement). Both the Shareholders Agreement and the 2011 Employment Agreement contained non-compete and non-solicitation clauses. They also contained obligations concerning the use of confidential information. Sackar J found that on their proper construction, the two agreements were intended to co-exist: J[244].

  3. There was no dispute before Sackar J that Mr Coombe had been an employee of Devine Concord. There was however a dispute about whether he ever executed a written employment contract, such as a REEF contract which is a form of employment agreement commonly used in the real estate business. This issue was important because to the extent the plaintiffs sought relief against Mr Coombe to restrain him from competing with Devine Concord and soliciting its customers, it was on the basis of the restraints contained in such an employment agreement. At general law, an employee is not subject to anti-competitive restraints of that kind.

  4. Sackar J found that Mr Coombe did execute a written employment agreement that contained similar terms to Mr Agha’s 2011 Employment Agreement: J[382]. His Honour did so on the basis of an inference which he drew from the overall circumstances: J[384].

  5. Sackar J made findings as to a large range of matters concerning the liability of Mr Agha and Mr Coombe. These may be divided into three categories. The first category concerned the way in which Mr Agha and Mr Coombe had systematically siphoned off customers from Devine Concord to Belle Property Neutral Bay. At paragraphs J[294] and following, Sackar J made extensive findings as to their conduct in relation to the solicitation of customers. His Honour made this category of findings with respect to specific properties. It is relevant to note two things about these findings. The first is that his Honour’s conclusions were generally expressed to be in relation to both of Mr Agha and Mr Coombe, who were at that point both defendants. Thus, at J[291] his Honour said:

“Generally, I am satisfied that the Defendants engaged in breach by siphoning customers from the Devine Group to their new employer Belle Property. The clearest indication of this is the trail of contemporaneous materials that demonstrate that a property owned by a Devine Group client would come in and do some business with the First Defendant and/or become a contact of the Plaintiffs, and then come out again and follow the Defendants into the Belle Property group.”

  1. Secondly, although these findings generally involved the solicitation of customers and therefore amounted to a breach of what his Honour took to be both of Mr Agha’s and Mr Coombe’s non-solicitation and non-compete covenants, his Honour also found that they both improperly used confidential information in doing so. This appears clearly at J[292] where his Honour said:

“This constitutes breach of the restraints of trade mandated by clause 10 of the Shareholders Agreement and clause 19 of the Employment Agreement. By developing these properties for Belle Property, the Defendants exploited the confidential client lists of the Plaintiffs to their personal advantage and not to the advantage of the Plaintiffs, again also in breach of the confidentiality requirements of the Shareholders Agreement (for the First Defendant) and the Employment Agreement (for both Defendants).”

  1. Thus, the second category of findings concerned the misuse of confidential information generally (ie not in connection with any particular property). Notably, his Honour found at J[271] that:

“…the Defendants engaged in breaches of confidential information by sending confidential client lists to their personal email addresses prior to terminating their employment with the Plaintiffs.”

  1. To even more emphatic effect, see J[278]-[280].

  2. His Honour also found that the information that was the subject of this finding was ‘innately confidential’ quite apart from anything said in either the Shareholders Agreement or in the 2011 Employment Agreement: J[274]. As his Honour said, it was ‘patent on the face of the materials, that client lists and client details are crucial to the profitable conduct of a real estate business’.

  3. The third category applies only to Mr Agha and was also not made in relation to any specific property. Sackar J found that he deliberately sabotaged the records of Devine Concord by altering its digital files. At J[281], his Honour said:

“I am satisfied the First Defendant engaged in the systematic and repeated sabotage of the Plaintiffs’ client contact numbers by changing one number only in 905 files on 8 December 2017.”

  1. Sackar J was quite justifiably scathing about Mr Agha’s behaviour in this regard. At J[287] he said:

“Although there is no direct evidence of the First Defendant’s behaviour, in my view this plainly was an act of seeking maliciously to disadvantage and obstruct the Plaintiffs from doing business and maintaining contact with their clients. Had it not been rectified it was likely to have wreaked havoc and caused a great deal of time to reconstruct the client contact details...”.

  1. At J[288] he added that the sabotage ‘indicates a degree of malevolence directed to harming the Plaintiffs’ business’.

  2. His Honour did not make any findings that Mr Agha breached any fiduciary duty. Nor did the plaintiffs seek to argue that Belle Property Neutral Bay or anyone else was a knowing participant in Mr Agha’s breach of fiduciary duty. There was a vague pleading about ‘equitable duties’ which his Honour dealt with as follows at J[393]:

“As to the opaque reference to breach of ‘equitable duties’ I do not propose to make any finding or grant any final injunction or declaration to the effect of protecting against breach of equitable duties. My findings as to breach have already been sufficiently identified above, and any reference to imprecisely framed ‘equitable duties’ has not been sufficiently identified by the Plaintiffs.”

  1. Consent orders to give effect to Sackar J’s conclusions were made on 4 December 2019. There were extensive orders made against Mr Agha, including injunctions to restrain him from competing with Devine Concord for a period of three years and in relation to other matters, such as the use of confidential information and an injunction to prevent him seeking to lure away any Devine Concord employee who had access to confidential information. Several of these orders were made in respect of specific postcodes.

  2. Orders 5, 6, 8 and 9 were as follows:

“5. A declaration that the ‘restraint period’ contained in clause 19.2 of the employment agreement dated 20 April 2011 between Concord and Mr Agha (the ‘EA’) means ‘three (3) years’ and is, as regards its application to Mr Agha, altogether valid for a period of three (3) years, with effect from 26 April 2018, and ‘Competitor’ means any business engaged in providing real estate agency services within a radius of 6 kilometres from the office of the first defendant.

6. A declaration that Mr Coombe is bound by the same EA entered into by Mr Agha.

…

8. A declaration that Mr Agha breached the Corporations Act s.181-183.

9. A declaration that Mr Coombe breached the Corporations Act s.181-183.”

The Court of Appeal decision

  1. Mr Agha and Mr Coombe sought leave to appeal from the liability judgment. Mr Coombe’s appeal was allowed. White JA, with whom Payne and McCallum JJA agreed, held that the evidence did not justify the conclusion that Mr Coombe had executed or was otherwise bound by the terms of a REEF agreement: CA[98]-[100]. His Honour also found that he was not an ‘officer’ within the meaning of ss 181, 182 and 183 of the Corporations Act. In the course of his reasons, White JA said at CA[174] that:

“However, the primary judge made no finding that Mr Coombe had used or disclosed confidential information other than by sending confidential information to Mr Agha whilst both he and Mr Agha were employees of Devine Concord. There was no notice of contention.”

  1. Mr Agha’s appeal was dismissed save in one respect. Order 5 made by consent on 4 December 2019 had proceeded on the basis that Mr Agha’s three-year constraint should operate by a combination of a ‘radius’ restraint and a ‘postcode’ restraint. As White JA explained, that did not accurately reflect the terms of the agreement. As such, order 5 was set aside: see CA[145]. This did not however affect any of the injunctive or other relief against Mr Agha, all of which remained in place.

  2. The orders of the Court of Appeal were as follows:

“(1) The appeal of the first appellant be allowed in part.

(2) The appeal of the second appellant be allowed.

(3) Set aside orders 5, 6 and 9 made on 4 December 2019.

(4) The appeal of the first appellant be otherwise dismissed.

(5) The respondents pay the second appellant’s costs of the appeal so far as those costs concern only the claims of the second appellant.

(6) The first appellant pay the respondents’ costs of the appeal, not including costs referable only to the claims of the second appellant.”

  1. An application for special leave to appeal to the High Court was dismissed.

The plaintiffs’ claim for damages

  1. On 8 May 2023, the plaintiffs filed an amended statement of claim in which Mr Coombe was removed as a defendant. The plaintiffs now seek damages against Mr Agha.

  2. The key breaches on which the plaintiffs rely may be summarised as follows:

  1. By sending confidential client lists to his personal email address prior to terminating his employment with the Devine Group, Mr Agha breached obligations in both his employment agreement and the shareholders’ agreement. The plaintiffs here emphasised the findings made by Sackar J at J[271] to J[280].

  2. Mr Agha engaged in the systematic sabotage of the Devine Group’s client contact numbers by changing one number in each of the 905 files on 8 December 2017 in order to maliciously disadvantage and obstruct the plaintiffs from doing business and maintaining contact with their clients. His Honour found a ‘degree of malevolence directed to harming’ the plaintiffs’ business. The plaintiffs here emphasised the findings made by Sackar J at J[281] to J[289].

  3. Mr Agha systematically diverted customers from the Devine Group to his new employer, Belle Property Neutral Bay, in breach of the non-solicitation, non-compete and confidentiality clauses in both the shareholders’ agreement and his employment agreement. The plaintiffs here emphasised the findings made by Sackar J at J[290] to J[294]. They referred me to the findings made by Sackar J concerning individual clients and properties at paragraphs J[295] to J[375] of his reasons.

  4. The conduct described in the previous three paragraphs also constituted breaches of Mr Agha’s obligations under ss 181, 182 and 183 of the Corporations Act.

Applicable principles

  1. Insofar as the plaintiffs’ claims relate to breaches of Mr Agha’s employment agreement and the shareholders’ agreement, their claims are for damages for breach of contract. The general principle governing the award of compensatory damages in contract is that the plaintiff should receive a monetary sum which, so far as money can, represents the fair and adequate compensation for the loss sustained by reason of the defendant’s breach: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 at 116.

  2. Insofar as the plaintiffs’ claims relate to breaches of the Corporations Act, they seek compensation pursuant to s 1317H. As such, they must demonstrate that the damage suffered by the plaintiff ‘resulted from’ the defendant’s contravention: Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 at [709].

  3. In each case, the plaintiffs’ claims are appropriately described as being for damages for loss of opportunity. In Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4 at 355, Mason CJ, Dawson, Toohey and Gaudron JJ said:

“…the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.” (emphasis added)

  1. It is not essential for the Court to establish that the likelihood of the opportunity being realised was greater than 50 percent. Nor is it necessary to arrive at a precise percentage of probability to be attributed to the prospect of the chance being realised and discount the damages by that percentage: Searle v The Commonwealth (2019) 100 NSWLR 55; [2019] NSWCA 127 at [202] to [206]. The estimation of the value of the loss of opportunity involves an evaluative assessment which may require a degree of speculation and fixing an amount falling within a reasonable range of outcomes: Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; [2020] HCA 27 at 171 and 174.

  2. In the case of agents who have lost an opportunity to derive income from customers, courts have assessed damages by identifying the amount of income that would have been derived if the plaintiff had acted for those customers in respect of the ‘period during which the customer would reasonably have been expected to remain with the plaintiff’, but discounted for the possibility that the customers may have left in any event: Ithaca Ice Works Pty Ltd v Queensland Ice Supplies Pty Ltd [2002] QSC 222 at [17]. This is sometimes done on a global basis (such as in AEI Insurance Group Pty Ltd v Martin (No 4) [2024] FCA 1110 at [277] to [289]).

  3. The plaintiffs submitted that in the circumstances of this case, the damages in relation to the Corporations Act breaches are likely to be the same as those flowing from Mr Agha’s breach of contract. Neither party submitted that the outcome should be different in relation to these remedies.

The plaintiffs’ evidence as to damages

  1. In their amended statement of claim filed in 2023 for the purposes of better articulating their claim for damages, the plaintiffs identified the particular properties in respect of which they say they lost the opportunity to derive income at [102(a)].

  2. However, in the proceedings before me the plaintiffs proceeded by reference to a different list of properties. This list consisted of a subset of the properties in relation to which Sackar J had explicitly found breaches. There were 29 properties in total. These included some that were not particularised at [102(a)] of the amended statement of claim and left out several of the properties that were set out in the amended statement of claim.

  3. The plaintiffs’ affidavit evidence was to the same effect. That is, their evidence concerned a subset of the properties for which Sackar J had explicitly found breaches. Mr Devine gave evidence as to when such properties had been sold, the price at which they sold, the identity of the agent (if known) and whether or not Devine Concord had had an agency agreement with the client in relation to the property.

  4. In an affidavit sworn on 7 June 2024, Mr Devine said that the plaintiffs lost the opportunity to earn the following amounts in relation to the 29 properties that were diverted:

  1. Sales commissions of $570,741.00.

  2. Letting fees of $10,164.00.

  3. Management fees of $25,836.03.

  4. Capital value (being the sale of the rent roll which I will shortly describe) of $94,887.94.

  1. Mr Devine’s evidence was based largely on searches which he conducted on property sales websites. This evidence was overtaken by rather more reliable evidence in the form of Land Titles Office records which were tendered at the hearing. In final submissions, the plaintiffs relied on a table of damages that reflected this updated and more reliable evidence. Their final position as to the loss referable to the 29 properties was as follows:

  1. Letting fees of $8,375.

  2. Management fees of $23,195.70.

  3. Capital value of $96,494.

  1. I will set out their final evidence as to commissions in the following section.

Sales commissions

  1. As to the amount of lost sales commission, the plaintiffs’ final evidence showed that of the 29 disputed properties, there were sales with an aggregate value of $20,366,500 during the period within which Mr Agha was subject to his post-employment restraints. The parties agreed that the relevant restraint period was between 26 April 2018 and 26 April 2021.

  2. If Devine Concord had acted as agent on all of these sales, if it had charged commission at the rate of 2%, and if it had been entitled to keep all of that commission without deduction, then it would have earned gross commission of $407,330 in respect of the properties sold during the restraint period. The defendant did not dispute that 2% was an appropriate rate by which to calculate lost sales commission.

  3. Devine Concord would not however have been entitled to keep all of the commission. As Mr Devine explained, Devine Concord was and is required to split gross commission between itself, the listing agent and the selling agent under the various employment agreements with sales staff. The amount of the gross commission which it was required to share varied from agent to agent. Mr Devine said that in the relevant period, the amount of gross commission that could be retained by Devine Concord ranged between 100% (if he was the selling agent) and 46% (if Mr Agha was the selling agent). For the other three selling agents at the time, Devine Concord would have retained between 59.5% and 82% of gross commission, depending on the agent.

  4. As to the likelihood that Devine Concord would actually have earned all of these commissions and other items of income, the plaintiffs’ evidence was couched in quite general terms. The evidence focused on the overall manner in which Devine Concord carried on business including its practices and processes in marketing and selling properties. Mr Agha did not dispute this evidence. The evidence establishes that Devine Concord was a highly professional, well-established local real estate agency with a very good reputation in the community. The evidence did not however address particular customer connections. Save in relation to the 19 properties owned or controlled by Mr Boumelhem, it has not been possible for me to form a view as to the specific likelihood that the owners of any of the other 10 properties would have continued to use Devine Concord on property sales or that they would have used Devine Concord to manage rental properties.

Management and letting fees

  1. The plaintiffs also seek damages in respect of the loss of the opportunity to continue to earn management and letting fees on the letting of properties. Mr Devine set out evidence that 15 of the 29 properties were rented. Mr Devine said that if the owners of these properties had engaged Devine Concord to act as rental agent, then it would have charged a one-time letting fee equal to the first month’s rent and an annual management fee calculated as 5.94% of all rent collected. Mr Devine estimated that, on average, properties would derive rent over 50 weeks of each year.

Capital value

  1. This particular loss of opportunity had an additional aspect, namely the loss of an opportunity to sell the rent roll for these properties for a capital sum. It is here relevant to note that the plaintiffs in fact sold the Devine Concord business to The Agency, an unrelated third party, in April 2023 and that the calculation of the overall price for the business included a capital sum for the rent roll. The price paid in respect of the rent roll was calculated as a four-times multiple of gross annual management fees. At the time it was sold, the rent roll did not include any of the 29 properties. The plaintiffs say that if Mr Agha had not breached his contractual obligations, they may have sold the rent roll for a higher price because it may have included those of the 29 properties that were investment properties.

Mr Agha’s evidence

  1. Much of Mr Agha’s evidence was aimed at demonstrating the unreliability of Mr Devine’s evidence about whether, when and at what price properties had been sold. To the extent Mr Agha had direct knowledge about whether, when and at what price properties were sold (which he must have had) he did not say what it was.

Letting and management fees

  1. In relation to rentals, Mr Agha said that Mr Devine’s evidence about property rentals ‘is not reliable’ and that the ‘correct way’ to obtain reliable information is to contact the managing agent. I can accept that Mr Devine’s evidence about rental returns for properties is unlikely to be the most reliable source of information. It does not however follow that it should be given no weight. It seems inherently likely that Devine Concord would have earned some letting and management fees in relation to rental properties if customers had not been systematically solicited away from them by Mr Agha.

  2. Mr Agha said that where a property was onboarded with no tenant, one or both of the business development manager and the referral sales agent at Devine Concord would be entitled to 50% of the first week’s rent once a tenant was in place. If only one of them was entitled to this ‘commission’, they would get all of it. Otherwise, it would be split between them. Where a property was onboarded with a tenant in place, the referral sales agent would be entitled to 20% of the total annual management fee for the first year.

  3. Mr Agha also said that the market rate for an ongoing management fee for new clients fell to 5% of the annual rent collected during the ‘end of’ his time at Devine Concord.

Sales commissions

  1. As to sales commissions, Mr Agha referred to a sales commission report for the period 11 January 2018 to 24 January 2018. The report shows the way in which Mr Agha’s entitlement to net commission was calculated for that period. The report shows several things. I particularly note the following:

  1. First, the gross sales commission was subject to a deduction of 10% described as an ‘Admin Fee’. Mr Agha expressed the opinion that this is an amount which Devine Concord ‘keeps to cover its costs’.

  2. Secondly, the proportion of the average gross commission retained by Devine Concord in relation to settled property sales by Mr Agha, after taking into account all commissions paid to both listing and selling staff and the Admin Fee, was 59%. This may be contrasted with the figure calculated by Mr Devine, which was 46%. The percentage calculated by Mr Agha is favourable to Devine Concord, because it shows that it was entitled to keep more sales commission than Mr Devine’s evidence otherwise suggests.

Other evidence

  1. Having dealt with these relatively tangible aspects of the claim for damages, Mr Agha then expressed a number of opinions about generalities such as the likelihood of sale of properties; the nature of the relationship between customers and Devine Concord generally; the limited duration of agency agreements; and the clearance rate of properties for sale generally.

  1. Mr Devine did not respond to Mr Agha’s evidence, save to dispute his assertion that he, and not Devine Concord, had the relevant customer connections.

  2. There was no cross-examination of either Mr Devine or Mr Agha. The parties informed me that they agreed not to cross-examine witnesses (other than Mr Coombe, who was cross-examined) on the understanding that neither party would make any ‘Browne v Dunne’ submission. These kinds of non-aggression pacts have their place, but they do sometimes leave the Court in a difficult position where, as here, it is necessary for the Court to decide which of two competing accounts should be accepted.

  3. Although not a lot turns on the differences between the evidence of Mr Devine and Mr Agha, there are some differences that must be resolved. I will as far as possible do so by reference to what I see as the inherent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. The points of distinction and my findings in relation to them are as follows.

Conclusions as to Mr Agha’s evidence

  1. As to the sales which have occurred, I will proceed as the parties ultimately did by reference to NSW Land Registry Services records in relation to the 29 properties identified by the plaintiffs, being a subset of those in respect of which Sackar J made findings. Although Mr Agha’s position was that Devine was not entitled to damages in relation to lost income in relation to properties other than those in the amended pleading, his submissions did, in the end, address the issues by reference to the 29 properties to which I have referred.

  2. As to the way in which commissions are paid to staff when rental properties are onboarded, I will proceed by reference to Mr Agha’s evidence. I will also proceed on the basis that management fees would have been 5%, not 5.94%. These all seem to be straightforward propositions that Mr Devine might have dealt with in reply but said nothing about.

  3. As to the way in which gross sales commissions are paid to staff, I will proceed on the basis of Mr Devine’s evidence, namely that the costs to the business were fixed. In other words, I accept that Devine Concord deducted 10% as an ‘Admin Fee’ but I do not accept that that represented the actual cost to Devine Concord of selling each property. I approach the matter this way because the sales commission report to which Mr Agha referred is an internal book-keeping document. It is not evidence of costs actually incurred by the business. As to the costs incurred, I prefer to rely on the evidence of Mr Devine, whose business it is.

  4. As to the percentage of commissions that would have been retained by Devine Concord, I will adopt the approach suggested by Devine Concord, namely I will take the average of the three agents nominated by Mr Devine.

  5. As to the clearance rate for property sales, I accept Mr Agha’s evidence that the rate was 80%. I do not however consider that much really turns on this. The plaintiffs’ case concerns properties that actually sold, not those that were listed in the hope of a sale. In other words, the properties are all within the 80% of properties that sold. I will proceed on the basis that they would have been as likely to sell with Devine Concord as with the agent who in fact sold them. I see no reason to discount damages for the prospect that properties successfully sold by another agent were less likely to sell if sold by Devine Concord.

  6. I do not place any weight on Mr Agha’s evidence about the likelihood of ‘prospects’ becoming ‘customers’ and the nature of customers’ relationships with Devine Concord generally. The findings which Sackar J made about the way Mr Agha manipulated precisely these kinds of relationships to his own advantage are a reason to approach his evidence about these matters with scepticism. They are all customer relationships which Mr Agha systematically sabotaged. In determining the likelihood that any of the customers would have stayed with Devine Concord, I must assume not only that Mr Agha would not have solicited them away, but that he also would not have deliberately tried to destroy Devine Concord’s relationship with them, which is what he did.

Mr Boumelhem

  1. Of the 29 properties in dispute, 19 were in the Underwood Road development and were originally sold by Jaycorp Group, which was controlled by Mr Boumelhem. Mr Boumelhem gave evidence and was cross-examined at the hearing before Sackar J. He also swore an affidavit for the purposes of the assessment of damages but was not cross-examined in the hearing before me.

  2. Jaycorp Group had originally appointed Devine Concord as selling agent in relation to various of the properties in the Underwood Road development under an exclusive agency agreement in March 2017: J[297]. Mr Agha was to be the selling agent and there is no doubt that he was the agent with whom Mr Boumelhem had contact. They had a very good relationship.

  3. In his first affidavit, Mr Boumelhem said that he had a discussion with Mr Agha on 12 December 2017 in which he told him that he had decided to leave Devine Concord. Mr Boumelhem’s evidence was that he told Mr Agha at that point that he had no idea who Mr Devine was and that he believed Mr Agha to own the business.

  4. Mr Boumelhem also said in that same conversation that he would continue to use Mr Agha as his agent despite Mr Agha’s post-employment restrictions. He said: ‘I don’t give a fuck about any restriction, I’m coming with you.’ He also said that Mr Devine ‘never contacted me’ and that he decided to terminate the agency agreement and ‘stick with [Mr Agha]’.

  5. Pausing here, Mr Boumelhem’s first affidavit undoubtedly demonstrates that he had a close customer connection with Mr Agha. It also demonstrates that Mr Boumelhem had no particular antipathy towards Mr Devine personally. It says nothing about his feelings towards other Devine Concord personnel or the way they had handled his business, except that he had never heard from Mr Devine and did not know who he was.

  6. In an affidavit sworn in September 2024, Mr Boumelhem added four additional matters. First, he said that his first affidavit gave his ‘reasons for avoiding Steven Devine and avoiding the Devine Group’. Secondly, he said that he only met Steven Devine once and it involved a short and abusive exchange in a carpark. Thirdly, Mr Boumelhem said that when he terminated the agency agreement with Devine Concord he had ‘no intention of returning to Steven Devine again’. Fourthly, he said that he did return to Devine Concord to act on the sale of one of the units in the Underwood Road development. This occurred in 2019 and the agent he used was Ms Touma, who had been at Devine Concord for several years and who was a distant relative of Mr Boumelhem’s wife.

  7. I also note that in his evidence before Sackar J, Mr Boumelhem said that he had no intention of leaving Devine Concord until Mr Agha told him he was leaving: J[298].

Conclusions

  1. The foregoing matters allow me to express my conclusions as to how Devine Concord’s damages are to be calculated. In my view, its lost income is to be worked out as follows:

  1. First, it lost an opportunity to earn gross commission income of 2% of the proceeds of sales of the 29 properties that settled during the restraint period. Although it can be argued that Devine Concord may also have earned income on sales after this period, I consider that prospect to be too remote to be included in the calculation of loss.

  2. Secondly, of that gross commission income, I consider that Devine Concord would have been entitled to retain 68.5% after paying a share to selling and listing staff. This is the percentage of gross commission that Devine Concord would have retained if it had used Ms Touma, Mr Mitrovich and Mr Poynting as selling agents (being the three selling agents identified in Mr Devine’s evidence other than himself and Mr Agha) and if it had paid the average rate of commission among them.

  3. Thirdly, Devine Concord would have earned letting and management fees, subject to sharing some of these payments as described by Mr Agha (see paragraphs [67]-[68] above). However, management fees would have been calculated at 5% of yearly rental income. I accept Mr Devine’s evidence as to which properties were rented out, the amount of rent and the 50-week average occupancy rate. I consider him to be better placed to give evidence as to how management fees would have been calculated.

  4. Fourthly, the price which The Agency paid to acquire the rent roll would have included an amount for the properties referred to in the previous paragraph that would have been on the rent roll at that time. The amount would have been calculated by a four-times multiple on the annual management fees and on a 52-week term, just as it was for the balance of the rent roll.

  1. Next, it is necessary to determine the chance that Devine Concord would actually have earned this income. This is a task that requires me to consider a hypothetical world in which Mr Agha did not steal client lists and in which he did not set up in competition with Devine Concord. The hypothesis also involves Mr Agha not setting out to sow the field with salt by tampering with Devine Concord’s business records. I will instead hypothesise that Mr Agha would have acted honourably.

  2. The only customer about whom the evidence allows me to draw firm conclusions is Mr Boumelhem, whose evidence is described above. Mr Agha especially relies on what Mr Boumelhem said in his second affidavit. However, it is difficult to know what to make of that evidence. It seems most unlikely that the antipathy towards Mr Devine which he described in that affidavit existed at the time Mr Agha left the agency. As at December 2017 he did not even know who Mr Devine was. At the time of the first affidavit he said nothing more than that Mr Devine had not contacted him and that he wanted to follow Mr Agha. It seems likely that the antipathy that developed towards Mr Devine did so over the time these rather rancorous proceedings have been on foot. So far as the carpark incident is concerned, I note that Mr Boumelhem did not say when it occurred. Further, as much as Mr Boumelhem proclaims his general antipathy towards Mr Devine, he nevertheless used his agency again in 2019. He did not explain why he did not ask Mr Agha to act as agent on that occasion.

  3. It does seem unlikely that all of Mr Boumelhem’s business would have stayed with Devine Concord. But I do not consider this prospect to be fanciful. In early 2018, Devine Concord was a well-established and reputable agency. Mr Boumelhem had already signed an agency agreement with Devine Concord and he had no thought of leaving it until he was solicited away by Mr Agha. He may not have known who Mr Devine was, but that hardly seems a reason for him to have left if Mr Agha had not set up in competition. His lack of knowledge of Mr Devine had not stood in the way of engaging Devine Concord previously. Nor did his proclaimed antipathy towards Mr Devine stand in the way of him engaging Devine Concord in later years.

  4. On balance, I consider that there was a good chance, although not an even chance, that Devine Concord would have kept Mr Boumelhem’s work if Mr Agha had left without breaching the terms of his employment agreement. I estimate the chance to be 35%.

  5. As to the remaining properties, the evidence does not allow me to determine the chance of any individual customer staying with Devine Concord. In contrast to Mr Boumelhem and the Jaycorp Group, the remaining properties appear to be owned by individuals. The evidence does however allow me to reach a general conclusion about the chance of all 10 other customers staying. In my view, there was about an even chance of this happening. I reach this conclusion because as already mentioned, Devine Concord was a well-established and reputable agency with whom these other 10 customers had already established a connection. There is no evidence that they were dissatisfied with the agency generally or Mr Devine (or any other staff member) specifically. They no doubt also had a connection with Mr Agha, which is why Mr Agha ultimately ended up being involved in the sale of their properties after he left Devine Concord. But, unlike Mr Boumelhem, Mr Agha has chosen not to call them. I am not prepared to infer that they had a relationship with Mr Agha that was as close as Mr Boumelhem’s. I estimate the chance of all of them staying to be 50%.

  6. My conclusion that there was a 50% chance of these customers staying implies not only that these customers would have used Devine Concord as a selling agent but that in the case of customers with rental properties, that they would have used Devine Concord as rental agent also.

  7. Finally, although there was very little said about this issue at the hearing, I do not see why it is appropriate to take GST into account in calculating Devine Concord’s loss.

  8. I will direct the parties to bring in short minutes of order reflecting these conclusions.

Mr Coombe’s claim to damages

  1. Mr Coombe was born in 1992. In 2011 he began studying towards a certificate of registration as a real estate agent, stock and station agent and in strata management from TAFE. He commenced working at Devine Concord in March 2012 as a trainee. His first work was on reception. He earned his TAFE certificate in 2012.

  2. Mr Coombe’s evidence about the circumstances in which he resigned from Devine Concord and started working at Belle Property Neutral Bay was very brief. The evidence shows that he was considered a good employee and was well liked. It is very likely that he would have progressed professionally if he had stayed with Devine Concord.

  3. As to his practice as a real estate agent generally, Mr Coombe explained that he had grown up in the inner west of Sydney and that he has always developed client relationships with people in that area. He used his knowledge of the inner west as a basis for marketing. In his view, this gives him credibility in his client network. He also had a network of people from school and sport and other social connections which he was able to draw on in seeking to develop customer connections. Mr Coombe also said that in the brief period of time that he worked at Belle Property Neutral Bay he was solely focused on sales and clients in the inner west.

  4. I say that his time at Belle Property Neutral Bay was brief because very shortly after he gave the undertakings Mr Coombe left the country to live in Berlin. It is important to note his evidence about this matter, which was contained in paragraph 13 of his first affidavit and was as follows:

“When I was ordered by the Supreme Court to stop working in the inner west, I was working at Belle Property, and so I decided to resign. This was because:

(a) I was in uncharted territory with all the legal proceedings and the last thing I wanted to do was unintentionally do the wrong thing.

(b) I felt I had 2 options.

(c) Option 1 was to go to Berlin because my partner got a scholarship and I could go with them.

(d) Option 2 was to reinvent myself as an agent in an unfamiliar area, outside the inner west.

(e) It was my intention to continue my career in the inner west.

(f) It would be much harder for me to start working as a real estate agent in an area outside the inner west, where I lacked my established relationships, social proof and market knowledge.

(g) So, I decided to go to Berlin.”

  1. The reference here to Mr Coombe being ordered to ‘stop working in the inner west’ is noteworthy. He was cross-examined about this matter and I am satisfied that paragraph 13 accurately reflects his understanding of both his initial undertakings and the interlocutory injunctions. In fact, his evidence was that he received legal advice that the effect of the undertakings and injunctions was that he was required to ‘stop working in the inner west’.

  2. Mr Coombe’s case is that the undertakings and injunctions prevented him from exploiting his own valuable customer connections. He submitted that the undertakings were not limited to the use of confidential information but also denied him the opportunity to be involved in the sale of ‘two or three properties’ which were included in the properties that he and Mr Agha, on the findings made by Sackar J, solicited away from Devine Concord. He submitted that both the undertakings and injunctions took away his springboard to a career as a real estate agent. Had the undertakings not been given and had the injunctions not been made, he claims that he would have been free to continue to work with clients in the inner west and also to earn commission on certain properties.

  3. The basic difficulty for Mr Coombe is that neither his initial undertakings nor the interlocutory injunctions required him to stop working in the inner west. What he was prohibited from doing was vastly more limited than that. So far as his initial undertaking was concerned, he was required to ‘…immediately cease and desist soliciting, acting for or accepting instructions from any person whose custom or appointment was obtained by the use of Devine Concord’s confidential information by him, or in respect of the Properties…’. So far as the later injunctions were concerned, the constraints were even narrower. He was prevented only from the following:

“8.1   using or disclosing [certain confidential information] to:

(a)   gain an advantage for himself;

(b)   gain an advantage for someone else

(c)   cause detriment to [Devine Concord]; or

8.2   being involved in using or disclosing [certain confidential information]…”

  1. Mr Coombe was subject to exactly these same obligations by reason of being an employee even apart from the undertakings and injunctions. He had been an employee of Devine Concord and was subject to the usual obligations concerning the use of confidential information. As White JA said in relation to Mr Agha at CA[132]:

“…Even in the absence of an express contractual restraint, the use or disclosure of the client information would be protected in equity unless and until it came within the public domain. An employee is not entitled to remove lists which are the employer’s property, or to make copies or commit lists to memory (Weldon & Co v Harbinson [2000] NSWSC 272 at [72]). Arranging for the lists to be forwarded to his personal email address in order to have access to the client information is conduct of the same character (Orica Investments Pty Ltd & Ors v William McCartney & Ors [2007] NSWSC 645 at [254]).”

  1. I therefore do not consider that the undertakings and injunctions had any material impact on the career options available to Mr Coombe in 2018. Mr Coombe was already an employee of Belle Property Neutral Bay and was Mr Agha’s assistant as of 22 March 2018 when the undertakings were given. He did not say that he had been considering some other position but, if he had been, he would have been free to pursue it. The only constraint (at least the only restraint attributable to his undertakings, as opposed to his general law obligation not to misuse Devine Concord’s confidential information) was that he could not be involved in the sale of certain properties, but that limited restraint only remained in place for about a month.

  2. It is difficult to see how, as a practical matter, Mr Coombe could have gotten himself involved in the sale of any of the 29 properties – and earned a share of the commission – between 22 March and 20 April 2018 even if he had never been subject to the undertakings and injunctions. If there was a way of doing so without using Devine Concord’s confidential information, which I doubt, then I do not see why the undertaking prevented it.

  3. Once the undertakings were replaced by the injunctions on 20 April 2018, the only thing Mr Coombe could not do was exploit Devine Concord’s confidential information for his own or anyone else’s benefit. However, as I have explained, that was hardly more onerous than the burden placed on any former employee with access to confidential information.

  1. Mr Coombe submitted that his claim for damages on the undertaking was, in a sense, the mirror image of – or a complement to – the plaintiffs’ claim to damages against Mr Agha. By this he meant, essentially, that any gross commissions which Devine Concord may have lost the opportunity to earn would have to have been split with a selling agent and that he, Mr Coombe, was as likely as anyone to be that selling agent.

  2. I agree that Devine Concord would have been required to split the gross commission with selling and listing agents. But I disagree that there was ever a realistic prospect that any agency would have split commission with Mr Coombe in the circumstances. I say that for four reasons.

  3. First, the hypothesis here is only as to what would have happened if the undertakings and injunctions had never been in place. The hypothesis otherwise involves Mr Coombe doing all the things that Sackar J found him to have done, including being involved in the theft of confidential client lists and the diversion of clients to Belle Property. It also involves him still being a defendant in the proceedings. Furthermore, the hypothesis involves the existence of undertakings and injunctions concerning Mr Agha, who was the star to whom Mr Coombe had well and truly hitched his wagon. I consider it highly unlikely that anyone at Belle Property Neutral Bay or anyone else would in those circumstances have been willing to share with Mr Coombe any part of the sales commission in relation to properties that were the subject of these proceedings even if he was not subject to the undertakings and injunctions.

  4. Secondly and relatedly, Mr Coombe was still a junior employee. He received very little as a share of commission even when assisting Mr Agha at Devine Concord. As far as I can tell from the evidence, he received none of the commission earned by Belle Property Neutral Bay on the sale of any property. The idea that this would have changed overnight and that he would have earned a material slice of the sales commission on any of the 29 properties that were the continuing subject of the litigation is fanciful.

  5. Thirdly, he left the country. Furthermore, he did so on the basis of a fundamental misunderstanding of what the undertakings and injunctions prevented him from doing. As I see it, he chose not to exploit his inner west real estate connections after March 2018, despite being free to do so.

  6. Fourthly, even if the undertakings did prevent Mr Coombe from developing his own independent customer connections in relation to the vendors of certain properties, those undertakings only remained in place for about a month until they were replaced with the injunctions. On no view did the injunctions prevent him from either working in the inner west or exploiting his own customer connections, including in respect of other properties. Yet he took no steps to do so when the undertakings fell away.

  7. Mr Coombe relied on other evidence that shows he was a good employee and that he could have expected to enjoy professional progress. He relied on evidence from Ms Jacqueline Jones who had first employed him at Devine Concord and who gave very positive evidence about his ability and general prospects. She expressed the opinion that:

“If Lewis had been unable to work selling residential market in the Concord market (sic) and continued as an agent in another area, then his income would be severely impeded.”

  1. Her evidence, like Mr Coombe’s own evidence, seemed therefore to proceed on the same mistaken assumption as to the effect of the undertakings and injunctions.

  2. Even so, I have no reason not to accept her more general evidence about Mr Coombe’s abilities and prospects. That evidence is however not a reason to conclude that he suffered any material setback in his professional prospects by reason of the undertakings and injunctions.

Applicable principles

  1. The relevant test for assessing whether compensation should be ordered in such cases is: (a) if the damages flow directly from the injunction or undertaking; and (b) whether the damage could reasonably be foreseen: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249; [1981] HCA 75 at 266-267; Commonwealth of Australia v Sanofi [2024] HCA 47; 99 ALJR 213 (‘Sanofi’) at [166]. As Gordon ACJ, Edelman and Steward JJ jointly concluded at [166] of Sanofi:

“The first question concerns the scope of the undertaking. The second question concerns remoteness of damage including the extent of the liabilities that flow from the undertaking.”

  1. For the reasons explained above, I do not consider that the damage claimed by Mr Coombe flowed directly (or even indirectly) from the interlocutory injunctions and undertakings. I am unable to answer the above-mentioned first question in Mr Coombe’s favour in relation to any part of the damages which he claims.

  2. In my view, his application for damages on the basis of the usual undertaking given by the plaintiffs should be dismissed.

ORDERS

  1. The orders of the Court will be as follows:

  1. On the question of the plaintiffs’ entitlement to damages, direct the parties to bring in agreed short minutes of order to give effect to my findings at paragraphs [87] to [94] by 4:00PM on 12 August 2025.

  2. Order that Mr Coombe’s application for damages pursuant to the usual undertaking as to damages given by the plaintiffs be dismissed.

  3. Direct the parties to file and serve any evidence and short submissions on costs on or before 4:00PM on 12 August 2025.

  4. Direct the parties to file and serve any evidence and short submissions in reply on costs on or before 4:00PM on 19 August 2025.

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Decision last updated: 29 July 2025

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Adler v Australian Securities and Investments Commission [2003] NSWCA 131
R v Nikolaidis [2003] VSCA 191
Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29