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

Supreme Court

New South Wales

Medium Neutral Citation: Showcase Realty Pty Ltd v Nathan Circosta [2021] NSWSC 355
Hearing dates: 4 November 2020
Date of orders: 9 April 2021
Decision date: 09 April 2021
Jurisdiction: Equity
Before: Rees J
Decision:
Set aside Anton Piller order ab initio, with costs

Catchwords:
ANTON PILLER – real estate agent obtains ex parte search order against former employee and new employer – alleged misuse of confidential information – relied on letters handed over by employee 2 years earlier, on joining new employer, terminating property management of 9 properties – letters provided by employee’s friends and family – not disclosed that the clients were the employee’s friends and family, and thus unlikely to have been approached using confidential information – principles at [4]-[9] – non-disclosure of material fact – does not matter whether search order may have been made anyway.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b)

Cases Cited:
Brags Electrics Ltd v Gregory [2010] NSWSC 1205
Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at 1356
Palaris Mining Pty Ltd v Short [2012] QSC 224
Principal Financial Group Pty Ltd v Vella [2011] NSWSC 327
Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213
Singtel Optus Pty Ltd v Almad Pty Ltd [2011] NSWSC 492
Walter Rau NeusserOel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955

Category: Principal judgment
Parties: Showcase Realty Pty Ltd (Plaintiff)
Nathan Circosta (First Defendant)
Oproperty Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr D O’Sullivan (Plaintiff)
Mr R Jedrzejczyk (Defendants)
Solicitors:
Fisher Cartwright Berriman Group (Plaintiff)
Mills Oakley (Defendants)

File Number(s): 2020/287946

Judgment

HER HONOUR: This is an application by the defendants, Nathan Circosta and his employer Oproperty Pty Ltd trading as “Ray White (Carlingford)”, to set aside Anton Piller orders made ex parte by Rein J on 6 October 2020, together with an order that items seized pursuant to execution of those orders be returned.
The application is opposed by the plaintiff, Showcase Realty Pty Ltd, being Mr Circosta’s former employer. In the substantive proceedings – also commenced on 6 October 2020 – Showcase seeks damages for breach of its employment contract with Mr Circosta.
On this application, the defendants read affidavits by Mr Circosta and his friends, Andy Rod and Hayden Muscat. The plaintiff read affidavits by its director and real estate licencee, Immacolata (Margot) Brattoli, her son and sales director Michael Brattoli, office manager Christa Jong and client, Naomi Noakes. There was no cross-examination.

PRINCIPLES

The principles were not in dispute. On an ex parte application, the applicant has a duty of candour as described by Allsop P in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 at [38]:

In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts…

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.

Keep reading for free

Create a free CaseChat account to read Showcase Realty Pty Ltd v Nathan Circosta and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWSC 355
Decision Date: 09 April 2021

CaseChat Overview and Summary

Showcase Realty Pty Ltd, an entity in the business of property management, sought an ex parte search order against Nathan Circosta, a former employee, and his new employer. The dispute centred around allegations that Circosta had misused confidential information obtained during his employment. The case was heard by the Federal Court of Australia. The court had to determine whether the applicant, Showcase Realty, had provided sufficient evidence to justify the issuance of the search order against Circosta and his new employer.

The primary legal issue was whether Showcase Realty had demonstrated a sufficiently arguable case for the search order, as required under the relevant legal provisions. The court examined the basis for the application, focusing on the nature of the alleged misuse of confidential information and the steps taken by Showcase Realty in support of their application. It was noted that the applicant had relied on letters handed over by Circosta two years earlier, upon joining his new employer, which led to the termination of the property management of nine properties. However, these letters were provided by Circosta's friends and family, who were also the clients in question. This significant fact was not disclosed, casting doubt on whether the confidential information was indeed used improperly.

The court found that the non-disclosure of the material fact that the clients were Circosta's friends and family undermined the strength of Showcase Realty's case. The court held that even if the search order may have been made regardless of this omission, the failure to disclose such a crucial fact was a significant oversight. Consequently, the application for the search order was dismissed. The court emphasised that the principles guiding such applications require full disclosure of all material facts, and any non-disclosure, even if seemingly insignificant, could lead to the rejection of the application.

Orders