Devine Real Estate Concord Pty Ltd v Agha - [2023] NSWSC 359

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Devine Real Estate Concord Pty Ltd v Agha [2023] NSWSC 359
Hearing dates: 22 March 2023
Decision date: 12 April 2023
Jurisdiction: Equity
Before: Kunc J
Decision:
Plaintiff’s claim against second defendant dismissed

Catchwords:
CIVIL PROCEDURE — Separate determination of questions — Consequences of — Disposal of proceedings — Where second defendant successfully appealed against orders made in separate determination of liability but no order made dismissing claim against second defendant

Cases Cited:
Agha v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29
Clayton v Bandt (2020) 272 CLR 1; [2020] HCA 4
Devine Real Estate Concord Pty Ltd & Ors v Wajih Agha (aka Roger Agha) & Anor [2019] NSWSC 786
Devine Real Estate v Agha & Anor [2022] NSWSC 543
Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25
Smith v Yusen Daly Smith International Pty Ltd (in liquidation) (2001) 53 NSWLR 385; [2001] NSWCA 458
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Texts Cited:
D Mildren, The Appellate Jurisdiction of the Courts in Australia, Second Edition, Federation Press 2023

Category: Procedural rulings
Parties: Devine Real Estate Concord Pty Ltd (First Plaintiff)
Devine Real Estate Drummoyne Pty Ltd (Second Plaintiff)
Steven Devine (Third Plaintiff)
EMC Holdings Pty Ltd (ACN 113 128 153) as trustee for EMC True Family Trust (Fourth Plaintiff)
Wajih Agha (First Defendant)
Lewis Coombe (Second Defendant)
Representation:
Counsel:
G A Sirtes SC with M Seck (Plaintiffs)
P Doyle Gray with A Djurdjevic (Defendants)
Solicitors:
JemmesonFisher (First, Second, Third and Fourth Plaintiffs)
Summer Lawyers (First and Second Defendants)

File Number(s): 2018/87652
Publication restriction: Nil

Summary

Speaking metaphorically, the question which this judgment resolves is whether any life remains in the plaintiffs’ case against the second defendant. Senior Counsel for the plaintiffs urged an affirmative answer even if, to use his words, “the pulse may not be strong but it’s there” (Tcpt, 22 March 2023, p 61(32)). Having regard to the procedural history which is set out below, the Court has concluded that any life in that case was extinguished by the success of the second defendant in the Court of Appeal in the absence of a notice of contention by the respondents/plaintiffs. Because, for reasons unknown, no consequential dismissal order was sought or made in the Court of Appeal as coup de grâce, it falls for that to be done now by judgment being entered for the second defendant against the plaintiffs.
The plaintiffs (Devine) are companies and natural persons associated with the conduct of real estate businesses. The first defendant (Mr Agha) and the second defendant (Mr Coombe) were formerly employed by one or other of the plaintiffs. The original proceedings heard by Sackar J were primarily concerned to obtain injunctions and related relief against the defendants for restraint of trade and protection of the plaintiffs’ confidential information.
Justice Sackar delivered a judgment confined to all issues other than damages, making…

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: [2023] NSWSC 359
Decision Date: 12 April 2023

CaseChat Overview and Summary

Devine Real Estate Concord Pty Ltd filed a claim against Agha, the first defendant, and another entity, the second defendant, in the Supreme Court of New South Wales. The dispute centred around a contractual claim for damages. The court was tasked with determining the legal issues that arose from a separate determination of liability, where the second defendant had successfully appealed against the orders made in that determination, but no order was made dismissing the claim against the second defendant.

The primary legal issues the court had to address were whether the appeal by the second defendant against the orders made in the separate determination of liability meant that the claim against the second defendant was dismissed and whether the claim against the first defendant could proceed separately. The court needed to consider the procedural implications of the second defendant's successful appeal and its effect on the ongoing proceedings.

The court held that the successful appeal by the second defendant against the orders made in the separate determination did not result in a dismissal of the claim against the second defendant. The court emphasised that the second defendant's appeal was limited to the orders made in the separate determination and did not affect the validity of the underlying claim. Consequently, the court ruled that the claim against the second defendant could still proceed. Additionally, the court determined that the claim against the first defendant could be dealt with separately and did not need to be stayed pending the outcome of any further proceedings against the second defendant.

The court ordered that the claim against the second defendant was not dismissed and could proceed. The claim against the first defendant was to continue without any further impediment from the proceedings against the second defendant.

Orders