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:
Solicitors:
G A Sirtes SC with M Seck (Plaintiffs)
P Doyle Gray with A Djurdjevic (Defendants)
JemmesonFisher (First, Second, Third and Fourth Plaintiffs)
Summer Lawyers (First and Second Defendants)
File Number(s): 2018/87652 Publication restriction: Nil
Summary
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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.
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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.
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Justice Sackar delivered a judgment confined to all issues other than damages, making…
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- Case
- [2023] NSWSC 359
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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