Windgap Foundation Ltd v Solomons - [2018] NSWSC 809

Supreme Court

New South Wales

Medium Neutral Citation: Windgap Foundation Ltd v Solomons [2018] NSWSC 809
Hearing dates: 27 April 2018
Decision date: 31 May 2018
Jurisdiction: Equity
Before: Robb J
Decision:
See paragraph 82.

Catchwords: COSTS — Party/Party — Costs orders in interlocutory proceedings — Plaintiff sought to recover confidential information taken by the Defendant — Final orders uncontested — whether costs incurred by plaintiff were proportionate
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW)
Civil Procedure Act 2005 (NSW)
Cases Cited: Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Bates v Lloyd [2005] NSWSC 1253
Melbourne University Publishing Ltd v Williamson [2005] FCA 1910
Columbia Pictures Industries Inc v Robinson [1987] Ch 38
Category: Costs
Parties: Windgap Foundation Limited (Plaintiff)
Leanne Solomons (Defendant)
Representation:
Counsel:
J S Tobin (Plaintiff)
Solicitors:
Brown Wright Stein (Plaintiff)
Haywoods Solicitor (Defendant)

File Number(s): 2017/331472

Judgment

The question in this matter, which was heard in the Applications List on 27 April 2018, concerns the costs order that should be made in proceedings in which final orders have been made in favour of the plaintiff, without any contest by the defendant.

Background

The plaintiff is Windgap Foundation Ltd (Windgap) and the defendant is Ms Leanne Solomons. Windgap is a charitable organisation that provides services to people with an intellectual disability in New South Wales. Ms Solomons worked for Windgap from April 2010 to 17 January 2017. On 17 January 2017, Ms Solomons was made redundant and at that time she signed a deed of release with Windgap that had the effect of terminating her employment (termination deed).
Windgap learned on 9 October 2017 that before the termination of her employment, Ms Solomons stole Windgap operational documents and a database with all the information about all of Windgap's clients, in breach of various terms of Ms Solomons' contract of employment.
In addition to those terms, Ms Solomons had covenanted by clause 8 of the termination deed not to disclose Windgap's confidential information without Windgap's prior consent. Ms Solomons also promised to return all of Windgap's confidential information then in her possession to Windgap.

The proceedings

These proceedings were commenced on 30 October 2017, when Hallen J, sitting as the Duty Judge, gave Windgap leave to file in court its summons as well as a notice of motion by which Windgap sought interlocutory relief against Ms Solomons.
Windgap's notice of motion did not seek a search order in respect of Ms Solomons' electronic devices in the form that is commonly sought against former employees who are alleged to have stolen electronically the confidential information of their former employer.
Windgap sought an order that Ms Solomons be restrained from using, communicating or reproducing any of its Confidential Information (as defined). It sought an order for delivery up, as well as an order that Ms Solomons deliver to the Court all computer devices that contained the Confidential Information. It sought an order that she provide 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.

Continue reading Windgap Foundation Ltd v Solomons

Details

AGLC: Windgap Foundation Ltd v Solomons [2018] NSWSC 809
Case: [2018] NSWSC 809
Decision Date: 31 May 2018

CaseChat Overview and Summary

In Windgap Foundation Ltd v Solomons, the plaintiff, Windgap Foundation Ltd, sought to recover confidential information taken by the defendant, Solomons. The case was heard in the Supreme Court of Queensland. Windgap Foundation Ltd, a not-for-profit entity, had instituted proceedings against Solomons to recover confidential information that was allegedly taken from the plaintiff and used by the defendant. The plaintiff sought an interlocutory order for the return of the confidential information, along with an interlocutory costs order. The plaintiff's application was ultimately successful, and the parties agreed on final orders, which were made without any costs order.

The legal issues before the court were whether the plaintiff was entitled to an interlocutory costs order and whether the costs incurred by the plaintiff in bringing the interlocutory application were proportionate to the relief sought. The defendant argued that the plaintiff's costs were not proportionate to the relief sought and that the plaintiff had not provided sufficient evidence to support the costs claimed. The plaintiff argued that the costs were proportionate and that the defendant's actions in taking the confidential information warranted the costs incurred.

The court held that the plaintiff's costs were proportionate to the relief sought and that the plaintiff had provided sufficient evidence to support the costs claimed. The court noted that the defendant's actions in taking the confidential information were egregious and that the plaintiff's costs were necessary to protect its confidential information. The court further held that the plaintiff was entitled to an interlocutory costs order, and the costs incurred by the plaintiff were proportionate to the relief sought. The court ordered the defendant to pay the plaintiff's costs of the interlocutory application.

Orders