Gunasegaram v Blue Visions Management Pty Ltd

In *Gunasegaram v Blue Visions Management Pty Ltd*, the Court of Appeal of New South Wales considered appeals arising from a dispute concerning alleged breaches of fiduciary duty and statutory obligations by senior employees. The employer, Blue Visions Management Pty Ltd, alleged that two senior employees, Mr Gunasegaram and another individual, had improperly diverted business to a company in which they had an interest, following their resignation. The core of the dispute involved the novation of a contract with a client to this new company after the employees had given notice of their intention to resign from their positions with Blue Visions.

The court was required to determine several legal issues, including whether the employees breached their fiduciary duties to their employer by preferring their personal interests over their employer's, and whether they improperly used their positions to divert business, contrary to section 182 of the *Corporations Act 2001* (Cth). Further issues included whether the defence of informed consent had been properly pleaded, whether a new point could be raised on appeal, the existence of sufficient causation between any alleged breach of fiduciary duty and profits earned by the employees, and whether liability in deceit could be established in respect of representations not specifically pleaded or raised at trial. The assessment of damages in deceit was also a point of contention.

The Court of Appeal dismissed both Mr Gunasegaram's appeal and Blue Visions' appeal. The court found that the employees had not breached their fiduciary duties in the manner alleged, particularly in relation to the causation of profits earned after a competitive tender process. The court also found that the employer had not established liability in deceit, as the relevant representations had not been properly pleaded or raised at trial. Consequently, the appeals were dismissed, and the parties were ordered to pay the costs of the proceedings. Orders were made for the discharge of previous stay orders and the payment of a sum of $400,000, previously paid into court by Mr Gunasegaram, to Blue Visions Management Pty Ltd.