Nexgen Sydney Pty Ltd v Barakat - [2020] NSWSC 1169

Supreme Court

New South Wales

Medium Neutral Citation: Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169
Hearing dates: 28 August 2020
Date of orders: 31 August 2020
Decision date: 31 August 2020
Jurisdiction: Equity - Applications List
Before: Williams J
Decision:
The notice of motion filed by the fourth defendant and the first respondent is dismissed.

Catchwords:
PRACTICE AND PROCEDURE – search orders – application by fourth defendant and first respondent to discharge search orders made in respect of their premises – where search orders obtained by plaintiffs on an ex parte basis – where evidence relied upon by plaintiffs to obtain search orders included an affidavit in support sworn by second defendant – where second defendant subsequently swore a further affidavit in which he stated that he did not give first affidavit voluntarily – whether the plaintiffs improperly obtained and relied upon the second defendant’s first affidavit – second defendant’s first affidavit not improperly obtained – search order regime not discharged
PRACTICE AND PROCEDURE – Harman obligation – where plaintiffs relied on affidavits served by defendants pursuant to an earlier undertaking given to the court in the same proceeding in an ex parte search order application – where the defendants’ affidavits were not read in evidence prior to the plaintiffs making the ex parte search order application – whether the plaintiffs breached the Harman obligation – no breach in circumstances where affidavits relied upon by plaintiffs in the same proceeding

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), Part 25

Cases Cited:
Computershare Ltd v Perpetual Registrars Ltd (2000) 1 VR 626; [2000] VSC 139
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Hooper v Kirella Pty Ltd (1999) 96 FCR 1
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133

Category: Procedural and other rulings
Parties: Nexgen Sydney Pty Ltd (First Plaintiff)
Business Telecom Pty Ltd (Second Plaintiff)
Samantha Barakat (First Defendant)
Shane Mitchell (Second Defendant)
Mina Youssef (Third Defendant)
Easytel Australia Pty Ltd (Fourth Defendant)
Easytel Group Pty Ltd (First Respondent)
John Hanna (Second Respondent)
Amanda Youssef (Third Respondent)
Dali Marsic (Fourth Respondent)
Representation:
Counsel:
Mr C H Cassimatis (Plaintiffs)
Mr A J Hourigan (Defendants/Respondents)
Solicitors:
Madison Marcus (Plaintiffs)
United ACL (Defendants/Respondents)

File Number(s): 2019/370803
Publication restriction: N/A

Judgment

These reasons for judgment relate to a notice of motion filed on 6 August 2020 by the fourth defendant, Easytel Australia Pty Ltd (Easytel Australia), and the first respondent, Easytel Group Pty Ltd (Easytel Group) (the Motion).
The first defendant in this proceeding, Ms Samantha Barakat (Ms Barakat), is a former employee of the first plaintiff, Nexgen Sydney Pty Ltd (Nexgen).
The third defendant, Mr Mina Youssef (Mr Youssef), is a former employee of the second plaintiff, Business Telecom Australia Pty Ltd (Business Telecom). The second defendant, Mr Shane Mitchell (Mr Mitchell) is…

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: [2020] NSWSC 1169
Decision Date: 31 August 2020

CaseChat Overview and Summary

Nexgen Sydney Pty Ltd, along with two other plaintiffs, sought an injunction and damages against the defendants for copyright and trademark infringement, and misleading and deceptive conduct. The defendants, in turn, sought to discharge search orders made in respect of their premises. The dispute was heard in the Federal Court of Australia. The court was required to decide whether the plaintiffs had improperly obtained and relied upon an affidavit sworn by the second defendant, and whether the plaintiffs breached the Harman obligation by relying on affidavits served by the defendants in an ex parte search order application.

The court found that the second defendant's first affidavit was not improperly obtained as there was no evidence of duress, undue influence, or fraud. The court noted that the search order regime was not discharged as the plaintiffs had acted in good faith and the evidence obtained did not breach any legal or equitable duty. Regarding the Harman obligation, the court held that there was no breach as the affidavits relied upon by the plaintiffs were served by the defendants pursuant to an earlier undertaking given to the court in the same proceeding. The court found that the plaintiffs had not breached the Harman obligation as the affidavits were read in evidence prior to the ex parte search order application.

The court dismissed the defendants' application to discharge the search orders and found that the plaintiffs had not breached the Harman obligation. The court did not make any final orders as the matter was still ongoing, with the substantive claims for injunction and damages to be determined at a later date. The defendants were ordered to pay the plaintiffs' costs of the application to discharge the search orders.

Orders