Lamson Concepts Pty Ltd v Oscuro

Case [2025] FCA 579

FEDERAL COURT OF AUSTRALIA

Lamson Concepts Pty Ltd v Oscuro [2025] FCA 579

File number: NSD 501 of 2025
Judgment of: VANDONGEN J
Date of judgment: 4 June 2025
Catchwords: PRACTICE AND PROCEDURE - application to set aside ex parte search orders - whether applicant made material non-disclosure when seeking orders - whether applicant breached duty of candour - application dismissed
Legislation:

Corporations Act 2001 (Cth) s 183

Evidence Act 1995 (Cth) s 91

Federal Court Rules 2011 (Cth) Div 7.5
Cases cited:

Brags Electrics Pty Ltd trading as Inscope Building Technologies v Steven Mark Gregory [2010] NSWSC 1205

Fortescue Limited v Element Zero Pty Limited (No 2) [2024] FCA 1157

Naidenov, in the matter of 30 Denham Pty Ltd (in liq) [2023] FCA 134

Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639

Shaleen Charan v Lamson Concepts Pty Ltd [2024] FWC 2708

Showcase Realty Pty Ltd v Nathan Circosta [2021] NSWSC 355

Skytraders Pty Ltd v Ian Wallace Meyer [2021] NSWSC 1670

Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955
Division: General Division
Registry: Western Australia
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 76
Date of hearing: 23 May 2025
Counsel for the Applicant: Mr D Mahendra
Solicitor for the Applicant: Citation Legal
Counsel for the Respondent: Dr M Wolff
Solicitor for the Respondent: Prior Law

ORDERS

NSD 501 of 2025
BETWEEN:

LAMSON CONCEPTS PTY LTD

Applicant
AND:

NICHOLAS OSCURO

Respondent

ORDER MADE BY:

VANDONGEN J

DATE OF ORDER:

4 JUNE 2025

THE COURT ORDERS THAT:

1.The respondent's application for an order that the search orders made by Justice Stellios on 8 April 2025 be set aside is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

VANDONGEN J:

  1. On 8 April 2025, the applicant, Lamson Concepts Pty Ltd (Lamson), obtained ex parte search orders from Stellios J, who was then acting in his capacity as general duty judge.  Those search orders required that the respondent, Nicholas Oscuro, who is one of Lamson's former employees, permit a search for electronic documents to be carried out at his home.  Lamson alleged that those documents recorded its confidential information.

  2. Mr Oscuro has now applied for an order that the search orders be set aside because Lamson made several material non-disclosures at the hearing of its application for search orders.

  3. Contrary to Mr Oscuro's contentions, there were no material non-disclosures.  It follows that Mr Oscuro's application for an order that the search orders be set aside must be dismissed.

    Background

  4. Lamson installs, maintains and repairs materials handling solutions and systems.  Lamson's core product is a pneumatic tube system, and it operates in various industries, including healthcare, retail, hospitality and manufacturing.

  5. Mr Oscuro was employed by Lamson as a business development manager, before he resigned in December 2024.  During his employment, Mr Oscuro was given…

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Details
AGLC
Lamson Concepts Pty Ltd v Oscuro [2025] FCA 579
Case
[2025] FCA 579
Decision Date

CaseChat Overview and Summary

In the matter of Lamson Concepts Pty Ltd v Oscuro, the applicant, Mr Oscuro, sought to have search orders set aside that were granted ex parte in favour of Lamson Concepts Pty Ltd. Mr Oscuro argued that Lamson had made material non-disclosures in its ex parte application for the search orders and had thereby breached its duty of candour. Lamson, a company that installs, maintains and repairs materials handling solutions and systems, alleged that Mr Oscuro, its former business development manager, had improperly obtained and used confidential information to set up a business in competition with Lamson. Mr Oscuro sought to have the search orders set aside, arguing that Lamson had failed to disclose material factors in its ex parte application.
The court was required to determine whether Mr Oscuro had satisfied the burden of proving that Lamson had made material non-disclosures when seeking the search orders, and whether such non-disclosures amounted to a breach of the duty of candour. The court considered the evidence and submissions presented by both parties and concluded that Mr Oscuro had not satisfied the burden of proving that Lamson had made material non-disclosures. The court found that there were no material non-disclosures and dismissed Mr Oscuro's application to set aside the search orders.
The court dismissed Mr Oscuro's application to set aside the search orders made by Justice Stellios on 8 April 2025, as varied by the orders of 15 April 2025. The court found that Mr Oscuro had not satisfied the burden of proving that Lamson had made material non-disclosures when seeking the search orders. The court further found that there were no material non-disclosures and that Mr Oscuro had not satisfied the burden of proving that Lamson had breached its duty of candour. The court dismissed the application and will hear from the parties as to the form of the orders to be made to give effect to its reasons and as to the appropriate order for costs.

Orders

Orders of the court

1. The respondent's application for an order that the search orders made by Justice Stellios on 8 April 2025 be set aside is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Contrary to Mr Oscuro's contentions, there were no material non-disclosures. It follows that Mr Oscuro's application for an order that the search orders be set aside must be dismissed.Background Lamson installs, maintains and repairs materials handling solutions and systems. Lamson's core product is a pneumatic tube system, and it operates in various industries, including healthcare, retail, hospitality and manufacturing. Mr Oscuro was employed by Lamson as a business development manager, before he resigned in December 2024. During his employment, Mr Oscuro was given access to confidential information that belonged to Lamson. In early April 2025, Lamson commenced these proceedings against Mr Oscuro. Lamson alleges that on or about 18 November 2024, Mr Oscuro obtained possession of Lamson's confidential information with the intention of improperly using it to advance the interests of a business he set up in competition with Lamson, with a David Schmidt, another former employee who resigned at or about the same time as Mr Oscuro. Lamson alleges that Mr Oscuro acted in breach of various obligations, including his fiduciary duties of fidelity and good faith and his obligations as an employee under s 183 of the Corporations Act 2001 (Cth) to not make improper use of information. After Lamson discovered that Mr Oscuro had set up a business in competition with it, the work laptops that Mr Oscuro and Mr Schmidt both returned to Lamson at the end of their period of employment were forensically reviewed. According to Lamson, the forensic review demonstrates that Mr Oscuro's work laptop had been wiped using data destruction software or that it had been subjected to some form of hardware level erasure process. It is Lamson's case that Mr Oscuro had never been directed to wipe, reformat or delete any of Lamson's information from his work laptop. Lamson also alleges that the forensic review demonstrates that shortly before resigning, Mr Oscuro downloaded a significant number of confidential documents when there was no plausible business reason for that to have occurred. Lamson contends that the documents were downloaded to a device that Lamson did not own and had never issued to Mr Oscuro. Lamson also alleges that the work laptop Mr Oscuro returned on the last day of his employment was not the work laptop he had regularly been seen using during his employment. In other words, Lamson alleges that the documents that were downloaded were not downloaded to the work laptop Mr Oscuro returned on his last day of work. Lamson intends ultimately inviting the Court to find that Mr Oscuro (and Mr Schmidt) have used its confidential information in pursuit of their new venture together, in direct competition with Lamson. Lamson seeks various forms of relief, including orders that Mr Oscuro pay damages, that there be an account of profits and that he pay equitable compensation. As I have already noted, Lamson applied on an ex parte basis before Stellios J on 8 April 2025, for search orders pursuant to Div 7.5 of the Federal Court Rules 2011 (Cth). Specifically, Lamson sought orders requiring Mr Oscuro to permit a search to be carried out at his home for electronic documents. As counsel who appeared on behalf of Lamson on 8 April 2025 explained, Lamson sought the search orders to preserve the 'evidentiary trail' of what had happened to its confidential information.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am not persuaded that I should set aside the search orders on this basis.Conclusion Mr Oscuro has not satisfied me that Lamson failed to disclose any material factors in its ex parte application for the search orders. I would dismiss his interlocutory application to set aside the search orders made by Stellios J on 8 April 2025, as varied by the orders of 15 April 2025. I will hear from the parties as to the form of the orders to be made to give effect to my reasons and as to the appropriate order for costs.

Ratio Decidendi

Legal Principle Established

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