Devine Real Estate Concord Pty Ltd v Agha - [2018] NSWSC 556

Supreme Court

New South Wales

Medium Neutral Citation: Devine Real Estate Concord Pty Ltd v Agha [2018] NSWSC 556
Hearing dates: 5, 11, 12, 13 April 2018
Date of orders: 13 April 2018
Decision date: 13 April 2018
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
Plaintiffs have a prima facie case against the first defendant for breaches of his contractual obligations.
Plaintiffs also have a prima facie case against each of the first and second defendants for breaches of statutory obligations of confidence owed to the plaintiffs, statutory obligations not to their position as a director or employee of the plaintiffs for their own benefit; and breaches of equitable obligations of confidence owed to the plaintiffs.

Catchwords:
REAL PROPERTY – interlocutory injunctions – where the plaintiffs seek contractual, statutory and equitable injunctive restraints against the defendants prior to hearing and determination of a breach of confidence and restraint of trade case – whether the plaintiffs have a prima facie case against the defendants for any or all of those injunctive restraints to be granted
EQUITY – equitable remedies – specific performance – maxims – “he who seeks equity must do equity” – where the plaintiffs have not paid the first defendant the moneys he is owed for their purchase of his shares – whether the plaintiffs’ conduct disentitles them to interlocutory relief in the form of specific performance – breach of contract – whether plaintiffs are “ready, willing and able” to comply with their contractual obligations – discussion of the application of the “ready, willing and able” rule in applications for interlocutory relief – whether the plaintiffs’ failure to fulfil their contractual obligations is a ground for refusing to enforce the first defendant’s statutory or equitable obligations
Legislation Cited: Corporations Act 2001 (Cth)
Category: Principal judgment
Parties: Devine Real Estate Concord Pty Limited (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) (First Defendant)
Lewis Coombe (Second Defendant)
Representation:
Counsel:
V Heath (Plaintiff)
P Doyle Gray (First and Second Defendants)
Solicitors:
Jemmeson Fisher (Plaintiff)
Baybridge Lawyers (First and Second Defendants)

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

Judgment – EX TEMPORE

Revised and issued 1 May 2018

This is an application for interlocutory injunctions in a breach of confidence and restraint of trade case.
The third plaintiff, Steven James Devine, is the majority shareholder of a group of companies to which I will refer as the Devine Group. The Group was founded by Mr Devine's father as a real estate agency business at Strathfield in western Sydney. It subsequently expanded, and now operates five offices in New South Wales and one in the Philippines.
Two of the Group’s offices are at Concord and Drummoyne in inner western Sydney. The Concord office is operated by the first plaintiff, to which I will refer as the “Concord company”. The Concord company was incorporated in August 2008. Mr Devine holds 42.16 per cent of…

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: [2018] NSWSC 556
Decision Date: 13 April 2018

CaseChat Overview and Summary

The case of Devine Real Estate Concord Pty Ltd v Agha involved a dispute over the ownership of shares and the granting of injunctive relief by the court. The plaintiffs, Devine Real Estate Concord Pty Ltd, sought to obtain contractual, statutory, and equitable injunctive restraints against the defendants, Agha, prior to the hearing and determination of a separate case involving breach of confidence and restraint of trade. The defendants opposed the grant of any interlocutory relief, arguing that the plaintiffs' failure to pay them for the purchase of shares and their lack of readiness to perform contractual obligations disentitled them to relief.

The legal issues before the court included whether the plaintiffs had a prima facie case for the grant of any form of injunctive relief, whether the plaintiffs' conduct disentitled them to seek specific performance, and whether their failure to fulfil contractual obligations was a ground for refusing to enforce statutory or equitable obligations. The court needed to consider whether the plaintiffs had established the necessary threshold for obtaining interlocutory relief and whether their conduct affected their entitlement to such relief.

The court held that the plaintiffs had made out a prima facie case for the grant of injunctive relief. However, the court found that the plaintiffs' failure to pay the defendants for the purchase of shares and their inability to demonstrate that they were ready, willing, and able to perform their contractual obligations disentitled them to seek specific performance. The court held that the maxim "he who seeks equity must do equity" applied in this context and that the plaintiffs' conduct was a ground for refusing to enforce the defendants' statutory or equitable obligations. The court refused to grant any form of interlocutory relief to the plaintiffs.

The court ordered that the plaintiffs pay the defendants the outstanding amount for the purchase of shares and that the application for interlocutory relief be dismissed with costs. The court held that the defendants' statutory and equitable obligations were not enforceable against the plaintiffs due to their conduct.

Orders