Sundarjee Bros (Aust) Pty Ltd v Sundarjee - [2022] NSWSC 1722

Supreme Court

New South Wales

Medium Neutral Citation: Sundarjee Bros (Aust) Pty Ltd v Sundarjee [2022] NSWSC 1722
Hearing dates: 6 and 14 December 2022
Decision date: 14 December 2022
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
Orders made as sought by the plaintiff on 6 and 14 December 2022

Catchwords:
CIVIL PROCEDURE — Interlocutory applications — Ex parte — Application to release plaintiff’s lawyers from confidentiality undertakings — Application for search order for documents sought to be relied upon to determine whether to join an additional party to the proceedings
CIVIL PROCEDURE — Interlocutory applications — Ex parte — Application to amend claim to join individual the subject of earlier search orders as a defendant — Application for search orders against prospective defendant — Strong prima facie case against prospective defendant to satisfy threshold requirement for granting of a search order

Cases Cited:
Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201
Rauland Australia Pty Ltd v Johnson (No 2) [2019] FCA 1175
Skytraders Pty Ltd v Meyer [2021] NSWSC 1670

Category: Consequential orders
Parties: Sundarjee Bros (Aust) Pty Ltd (Plaintiff | Applicant)
Sanjay Sundarjee (First Defendant)
Shoashen (Cynthia) Yu (Second Defendant)
Damican Pty Ltd (Third Defendant)
Hasmukh Sundarjee (Fourth Defendant)
Representation:
Counsel:
S Lawrance SC with A Smith (Plaintiff | Applicant)
Solicitors:
Mills Oakley (Plaintiff | Applicant)

File Number(s): 2022/246803
Publication restriction: Not to be published until after 4pm 15 December 2022

JUDGMENT

The plaintiff, Sundarjee Bros (Aust) Pty Ltd (SBA), is a family company which carries on two businesses. One involves property investment. The other is an export business. SBA has three directors — Murjee Sandarjee (Murjee), Pravin Sundarjee (Pravin) and Hasmukh Sundarjee (Hasmukh). Pravin is Murjee’s son and Hasmukh’s cousin.
Up until about 20 April 2022, there were seven employees engaged in the export business, including Hasmukh and Hasmukh’s son, Sanjay.
In around August 2020, relations between Murjee and Pravin on the one hand and Hasmukh on the other broke down. Following unsuccessful negotiations for Hasmukh to buy the export business from SBA, on 20 April 2022, Hasmukh resigned as an employee of SBA. His resignation was followed closely by the resignation of four other employees who were involved in the export business, including Sanjay and Shaoshen (Cynthia) Yu, who had been employed by SBA as a sales executive. (Two other employees who had resigned withdrew their resignations and continue to work for SBA.)
On 19 August 2022, SBA obtained from Robb J ex parte search orders against Sanjay and Ms Yu. The evidence at that time disclosed that:

Sanjay and Ms Yu had established a company known as Damican Pty Ltd and through that company had commenced carrying on an export business that was competitive with the business carried on by SBA;

There was a strong prima facie case that Sanjay and Ms Yu had breached duties of confidence they owed to SBA by taking SBA’s confidential information that was essential to the…

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 Sundarjee Bros (Aust) Pty Ltd v Sundarjee 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: [2022] NSWSC 1722
Decision Date: 14 December 2022

CaseChat Overview and Summary

Sundarjee Bros (Aust) Pty Ltd initiated proceedings against Sundarjee seeking various remedies, including the joinder of additional parties. Sundarjee opposed the joinder, arguing that the plaintiffs had not satisfied the threshold requirements for such an application. The plaintiffs subsequently made an ex parte application to amend the statement of claim to include the individual as a defendant and sought a search order for documents held by the individual. Sundarjee opposed the application and the plaintiffs' application for release from their confidentiality undertakings. The matter was heard in the Federal Court of Australia.

The central legal issues were whether the plaintiffs had established a strong prima facie case against the individual to satisfy the threshold requirement for granting a search order, and whether the plaintiffs were entitled to be released from their confidentiality undertakings. The court considered the strength of the prima facie case in light of the documents the plaintiffs sought to rely upon in determining whether to join the individual as a defendant. The court also considered whether the plaintiffs' confidentiality undertakings could be discharged.

The court found that the plaintiffs had established a strong prima facie case against the individual. The plaintiffs had provided sufficient evidence to demonstrate that the individual was involved in the subject matter of the proceedings and that the documents held by the individual were relevant to the case. The court held that the plaintiffs were entitled to be released from their confidentiality undertakings, as the plaintiffs had demonstrated that they had no intention of disclosing the confidential information to any third party. The court granted the plaintiffs' application for a search order and ordered the release from confidentiality undertakings.

The court ordered that Sundarjee Bros (Aust) Pty Ltd be permitted to amend the statement of claim to join the individual as a defendant, and that a search order be made in relation to documents held by the individual. The court also ordered that the plaintiffs be released from their confidentiality undertakings. Sundarjee was ordered to pay the plaintiffs' costs of the application.

Orders