New Aim Pty Ltd v Leung - Confidentiality Breach and Section 183 Corporations Act Appeal

Original Word Document (162.3 KB) Federal Court of Australia

New Aim Pty Ltd v Leung [2026] FCAFC 49

| Appeal from: | New Aim Pty Ltd v Leung (No 4) [2025] FCA 747 |

| File number(s): | VID 1002 of 2025 |

| Judgment of: | MOSHINSKY, THAWLEY AND BUTTON JJ |

| Date of judgment: | 20 April 2026 |

| Catchwords: | CONTRACT – confidentiality – where the first respondent was employed by the appellant – where the employment contract contained a clause providing that the first respondent shall not misuse confidential information of the appellant – where the contract did not contain a definition of confidential information – where the contractual obligation was equivalent to an equitable obligation of confidence – where no occasion to consider whether necessary for equity to intervene where there is a contractual obligation of confidence – whether the first respondent misused confidential information – held: breach of contract made out

PRACTICE AND PROCEDURE – equity – breach of confidence – where the appellant pleaded that an equitable obligation attached to confidential information comprising the identity and contact details of all of its suppliers as at January 2021 – where the primary judge decided the claim on that basis – where the appellant also opened and conducted its case on the basis that the body of information to which an equitable obligation of confidence attached was the identity and contact details of 17 specific suppliers – where the primary judge did not address this narrower case – held: the primary judge erred in failing to address the alternative case

EQUITY – breach of confidence – where the appellant is a large online retailer of various goods sourced from China – whether the identity and contact details of 17 specific suppliers of the appellant was confidential information – where the information concerning all the appellant’s suppliers as at January 2021 included information relating to suppliers that were historical and unreliable – where the information concerning the 17 specific suppliers related to reliable, current suppliers of products suitable to the Australian market – where it would require substantial effort and time to identify such suppliers – where the information concerning the 17 suppliers was commercially valuable – where the appellant engaged in white-labelling of products to prevent public disclosure of supplier information – where the appellant implemented restrictions on employee access to supplier information – where the first respondent, after leaving employment with the appellant, disclosed the information concerning the 17 suppliers to the fourth and fifth respondents, being competitors of the appellant – where it was conceded that the first respondent had misused the information in breach of an equitable obligation, if the information was confidential – where the information concerning the 17 suppliers was confidential – held: breach of confidence made out

CORPORATIONS – whether the first respondent breached s 183 of the Corporations Act 2001 (Cth) by improperly using the information concerning the 17 suppliers – where the primary judge held there can be no improper use of information under s 183 if the information cannot be regarded as confidential in equity – where the meaning of information in s 183 is not so limited – where, to the extent that Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 2; 81 IPR 1 held otherwise, it was wrong – where, even if the information concerning the 17 suppliers was not confidential in equity, the degree of confidentiality of the information and the circumstances of its misuse supported a finding that the first respondent breached s 183 – held: claim under s 183 made out

EQUITY – breach of confidence – where the appellant brought derivative claims for breach of confidence against the fourth and fifth respondents – where the primary judge dismissed the claims against the fourth and fifth respondents because the primary judge dismissed the claim against the first respondent – held: claims against fourth and fifth respondents remitted for further hearing |

| Legislation: | Corporations Act 2001 (Cth) ss 182, 183, 839B, 1317AAE

Federal Court of Australia Act 1976 (Cth) s 28 |

| Cases cited: | AG Australia Holdings Ltd v Burton [2002] NSWSC 170; 58 NSWLR 464

Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; 261 ALR 501

Australian Securities and Investments Commission v Mitchell (No 2) [2020] FCA 1098; 382 ALR 425

Australian Securities and Investments Commission v Somerville [2009] NSWSC 934; 77 NSWLR 110

Breen v Williams [1996] HCA 57; 186 CLR 71

Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2021] FCA 809; 160 IPR 361

Chan v Zacharia [1984] HCA 36; 154 CLR 178

Coco v AN Clark (Engineers) Ltd [1969] RPC 41

Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; 165 IR 148

Destec Pty Ltd v De Haas [2025] WASC 5

Forkserve Pty Ltd v Pacchiarotta [2000] NSWSC 979; 50 IPR 74

Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2007] FCA 1621

Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 2; 81 IPR 1

Garner v Central Innovation Pty Ltd [2022] FCAFC 64

Luvalot Clothing Pty Ltd v Dong [2022] FCA 1411

McNamara v Flavel (1988) 13 ACLR 619

New Aim Pty Ltd v Leung (No 3) [2023] FCA 1295

New Aim Pty Ltd v Leung (No 4) [2025] FCA 747

New Aim Pty Ltd v Leung [2021] FCA 1329

New Aim Pty Ltd v Leung [2022] FCA 722

New Aim Pty Ltd v Leung [2023] FCAFC 67; 171 IPR 511

Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 281

Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598

Printers and Finishers Ltd v Holloway [1965] 1 WLR 1; RPC 239

R v Byrnes [1995] HCA 1; 183 CLR 501

Re City Equitable Fire Insurance Co Ltd [1925] Ch 407

Rosetex Company Pty Ltd v Licat a (1994) 12 ACSR 779

Smart EV Solutions Pty Ltd v Guy [2023] FCA 1580

Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2; 85 NSWLR 196

Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227

United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347; 128 ACSR 324

University of Sydney v ObjectiVision Pty Ltd [2019] FCA 1625; 148 IPR 1 |

| | Heydon JD, Leeming MJ, Turner PG, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies, (5 th ed, LexisNexis Butterworths, 2014) |

| Division: | General Division |

| Registry: | Victoria |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Commercial Contracts, Banking, Finance and Insurance |

| Number of paragraphs: | 170 |

| Date of hearing: | 24 March 2026 |

| Counsel for the appellant: | Mr P D Crutchfield KC with Mr L A Merrick KC and Ms M Evetts |

| Solicitor for the appellant: | Corrs Chambers Westgarth |

| Counsel for the respondents: | Ms W Harris KC with Mr K A Loxley SC and Mr T P Diaz and Mr W Liu |

| Solicitor for the respondents: | Zeal Legal Group |
ORDERS

| VID 1002 of 2025 |

| BETWEEN: | NEW AIM PTY LTD

Appellant | |
| AND: | MAN HUNG (JACK) LEUNG

First Respondent

SUN YEE INTERNATIONAL PTY LTD (ACN 159 318 224)

Fourth Respondent

BROERS GROUP PTY LTD (ACN 647 179 271)

Fifth Respondent | |

| order made by: | MOSHINSKY, THAWLEY AND BUTTON JJ |
| DATE OF ORDER: | 20 April 2026 |
THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Order 1 of the orders made by the primary judge on 8 July 2025 (dismissing the proceeding against the first, fourth and fifth respondents) be set aside.

3. The proceeding be remitted to the primary judge for further hearing and determination, including for determination of the claims against the fourth and fifth respondents.

4. The respondents pay the appellant’s costs of the appeal.

5. Order 1 of the orders made by the primary judge on 21 July 2025 (concerning costs) be set aside except in so far as that order concerns the second and third respondents at first instance.

6. Subject to:

(a) order 3 of the orders of Justice O’Callaghan dated 26 October 2023 relating to the costs of the hearing regarding the scope of the remitter;

(b) order 3 of the orders of Justice McElwaine dated 19 April 2022 relating to the appellant’s Australian Consumer Law claim;

(c) order 8 of the orders of Justice McElwaine dated 19 April 2022 relating to the appellant’s copyright claim;

the respondents pay the appellant’s costs of the proceeding below to date (including, to the extent applicable, the costs of the first trial before Justice McElwaine and the second trial before the primary judge), to be taxed or otherwise agreed.

1. If any party seeks a variation of the costs orders in orders 4 to 6 above, the party may file and serve within 7 days a short written submission, in which case the other party or parties may within a further 7 days file and serve a responding short written submission, and the issue of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

THE COURT:

OVERVIEW

1 New Aim (the appellant) is a large Australian online retailer. By 2024, it sold over 6,000 products across a varied range, sourced from about 400 suppliers. Mr Leung (the first respondent) worked for New Aim for around 10 years in various roles. He was Head of New Aim’s Buyer Team from 2015 to July 2020, concerned with sourcing products from suppliers in China. He then became New Aim’s Chief Commercial Officer (CCO), a position he held until he left New Aim in January 2021.

2 Shortly before leaving New Aim, Mr Leung introduced Mr Dai and Mr Chen. Mr Leung had met Mr Chen in December 2020 at a social occasion, and was friends with Mr Dai since they met around 2015. Mr Dai was Sun Yee’s (the fourth respondent’s) director. Sun Yee was a competitor of New Aim, being a participant in the online retail market since 2011. At the time Sun Yee was founded, it sold four-wheel drive accessories, outdoor camping equipment and LED lighting products for vehicles.

3 Mr Dai and Mr Chen founded Broers (the fifth respondent) in January 2021 to engage in online retailing via online marketplaces. Mr Chen was its sole director. Before he left New Aim, Mr Leung assisted Mr Chen in various ways in setting up the business. Mr Chen asked Mr Leung for suggestions of products to sell online in the newly established business. Mr Dai and Mr Chen wanted the business up and running quickly.

4 In January 2021, after he had left New Aim, Mr Leung posted a “moment” on WeChat stating: “I am determined to do better and work harder than before, and totally destroy what I built in the past 12 years”. This post was seen by Mr Chen and Mr Dai, both of whom were aware of Mr Leung’s association with New Aim. Mr Leung was employed by Broers from at least July 2021 or as early as April 2021. However, even earlier than this, Mr Chen had told him that, if he got results, he might get a financial interest in Broers in the future.

5 Between January and July 2021, Mr Leung disclosed to Broers the names and contact details of individuals associated with 17 suppliers to New Aim. The disclosures were typically made by Mr Leung sharing the WeChat contact details stored on his phone. Mr Leung stated that he did not generally list the name of the company where the person worked: Leung 1 at [42].

6 In August 2021, Mr Huang – New Aim’s Chief Operating Officer – undertook online searches and became aware that Broers and Sun Yee were selling several products which appeared to be identical to those sold by New Aim. Further, they appeared to be using product images that incorporated photographs of products taken by New Aim’s graphic design team.

7 Mr Huang (and others from New Aim) had a telephone conversation with Mr Leung in August 2021. Mr Huang and Mr Leung gave different accounts of the conversation. According to Mr Huang, Mr Leung stated that (Huang 1 at [121]):

he had instructed the Project Designer at Broers to download New Aim’s images from New Aim’s website to form part of Broers’ promotional works, but he had not taken any raw data of the product photographs from New Aim;

he felt it was not necessary for him to take any files from New Aim to assist him with the new business, because he already had New Aim’s supplier contacts on his personal mobile phone in the WeChat app;

he had approached the suppliers one by one, beginning with the suppliers of products he knew were high quality and could be manufactured quickly;

he did not feel it was necessary to take information from New Aim relating to product quality or profitability, including QC reports or sales data, because he was already aware of which products were good;

the first order made by Broers arrived in Australia in April 2021;

he was attempting to locate new suppliers from China from whom New Aim did not procure products.

8 According to Mr Leung, he had stated that some images had been taken from a website associated with New Aim: Leung 1 at [147]. Mr Leung denied saying that he approached suppliers successively, beginning with suppliers of products he knew were of high quality and could be manufactured quickly. Mr Leung stated that a number of suppliers had told him that they would not supply to Broers because the Head of the Buyer Team at New Aim had spoken to them and said that New Aim would stop ordering from them if they continued to supply to Broers or Sun Yee.

9 In closing submissions, the respondents accepted that Mr Huang was generally a witness of truth and did not suggest his account of the August 2021 conversation should not be accepted.

10 No point was taken by the respondents that the disclosure was of the identity and contact details of contacts associated with the 17 New Aim Suppliers rather than the identity and contact details of the suppliers themselves (ie the relevant corporate entities). The case was conducted on the basis that the former was equivalent to the latter. This was reflected in the Amended Statement of Agreed Facts before the primary judge, which recorded as an agreed fact that Mr Leung provided Broers with the contact details of various of New Aim’s suppliers.

11 It was not in dispute that Broers dealt with 17 New Aim suppliers to obtain products, including products that were identical to the products sourced by New Aim from those suppliers. Broers was alleged to have profited from the sale of such products. At the time the proceedings were commenced on 23 September 2021, the stock in Broers’ warehouse equated to approximately $1,000,000 at cost and approximately $2,000,000–$3,000,000 in potential re-sale value. Sun Yee was also alleged to have benefited from the information disclosed by Mr Leung to Broers because it purchased products sourced from the 17 suppliers from Broers and on-sold those products.

12 It was also not in dispute that sourcing reliable suppliers required effort and could take several months and that the identity and contact details of suppliers was commercially valuable and generally protected by participants in the e-commerce industry.

13 When proceedings were commenced on 23 September 2021, New Aim did not know the precise extent of the supplier information disclosed by Mr Leung. Its pleading therefore identified the relevant confidential information broadly, by reference to the identity and contact details of all suppliers to New Aim as at (relevantly) January 2021. New Aim sought permanent injunctions framed by reference to its broad definition of confidential information.

14 On 26 October 2021, the Court granted an interlocutory injunction preventing Broers and Sun Yee from using the identity or contact details of suppliers to New Aim as at January 2021, including by procuring or selling products from those suppliers that were the same or substantially the same as products in the New Aim product range as it stood at January 2021 and from using certain images: New Aim Pty Ltd v Leung [2021] FCA 1329 (Moshinsky J). The respondents’ written submissions in relation to the application leading to that interlocutory injunction stated that the respondents did not deny that: (a) Mr Leung had knowledge of New Aim’s suppliers and contact details for them in respect of the “Relevant Products”; (b) Mr Leung had made that knowledge available to Broers in the course of his employment with Broers; (c) Broers sold Relevant Products; and (d) Broers made Relevant Products available to Sun Yee, which also sold Relevant Products.

15 The proceedings were listed for an expedited hearing on liability in April 2022 before a Judge of this Court (the first trial judge). An order had been made on 11 February 2022 that all questions of liability be determined before questions of quantum.

16 Parts of the dispute were resolved before that hearing. On 19 April 2022, Broers and Sun Yee consented to a permanent injunction restraining them from using images of New Aim’s products obtained from New Aim’s website, which they admitted that they had used. This injunction replaced the interlocutory injunction, granted on 26 October 2021, preventing the use of those images.

17 The claims addressed at the expedited hearing before the first trial judge were for breach of confidence, breach of contract and contravention of s 183(1) of the Corporations Act 2001 (Cth). Each of the claims was dismissed: New Aim Pty Ltd v Leung [2022] FCA 722. The first trial judge held (amongst other things) that:

(a) the breach of confidence claim failed because the information did not have the necessary quality of confidence: [2022] FCA 722 at [234];

(b) the breach of contract claims relevantly failed because cll 33.1 and 33.2, which provided for an obligation of confidence in relation to “confidential information” (but did not define that term), did not extend to the information: at [244] to [246];

(c) no contravention of s 183(1) was established because the information was not confidential and Mr Leung’s use of the information was not improper: at [251].

18 The claims against Broers and Sun Yee failed due to the failure of the breach of confidence claim against Mr Leung.

19 On 10 May 2023, the Full Court allowed an appeal from the orders dismissing New Aim’s claims and remitted the matter for retrial before a different judge: New Aim Pty Ltd v Leung [2023] FCAFC 67; 171 IPR 511. The principal error identified by the Full Court was that the first trial judge had focussed on the location of the information rather than its nature and content and thus failed to address New Aim’s case: [2023] FCAFC 67 at [51].

20 The Full Court’s order for a retrial had the effect of granting a “new trial” within the meaning of s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth) – see: New Aim Pty Ltd v Leung (No 3) [2023] FCA 1295 at 28. This meant that existing issues could be abandoned and new ones raised; the parties were not bound by how they conducted the original trial and they might (or might not) improve their case by leading new evidence or by making new arguments; and where the same issues arose in both trials, the judge at the second trial was not hampered by any decision at the original one – see: [2023] FCA 1295 at [12].

21 By the time of the new trial, the case had narrowed in practical operation. New Aim’s pleadings and written opening submissions did not explicitly confine its case to the 17 suppliers whose details Mr Leung disclosed to Broers. However, it was apparent by the time of oral opening submissions, or shortly thereafter, that New Aim had confined its allegations of misuse, and the relief it sought, to the 17 suppliers: see T42.30–43, T51.39–52.11. This was consistent with passages in the judgments of the first trial judge and the Full Court in the first appeal focusing on the 17 suppliers: [2022] FCA 722 at [152], [155] and [226]; [2023] FCAFC 67 at [23], [25], [34] to [36], [39], [41] and [45].

22 The primary judge dismissed New Aim’s claims: New Aim Pty Ltd v Leung (No 4) [2025] FCA 747. Her Honour:

(a) dismissed the claim for breach of confidence on the basis that the information concerning all suppliers as at January 2021 did not have the necessary quality of confidence: J[284] to [291];

(b) dismissed the various contract claims, including because the information concerning all suppliers as at January 2021 was not confidential: J[297] to [310]; and

(c) dismissed New Aim’s claim under s 183(1) of the Corporations Act on the basis that Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 2; 81 IPR 1 stood for the proposition that “the obligation in respect of confidential information under s 183(1) of the Corporations Act aligns with the equitable obligation and there can be no improper use of information, within the meaning of s 183, if there has been no improper use of information under the general rules of equity”: J[316].

23 The claims against Broers and Sun Yee were dismissed because those claims depended on New Aim making out the breach of confidence claim against Mr Leung.

24 New Aim contends the primary judge erred in dismissing its case against Mr Leung. In relation to breach of confidence, New Aim contends that:

(a) its case included that the confidential information was the identity and contact details of the 17 specific suppliers to New Aim (Ground 1); and

(b) its case based on the information concerning the 17 suppliers ought to have prevailed (Ground 2).

25 In relation to breach of contract, New Aim contends that the claim should have succeeded because the information concerning the 17 suppliers was confidential within the meaning of the relevant contract (Ground 3).

26 In relation to s 183(1), New Aim contends that the primary judge:

(a) erred in dismissing New Aim’s s 183(1) claim by reason of the errors infecting the primary judge’s treatment of the breach of confidence claim (Ground 4);

(b) erred in concluding that:

(i) there can be no improper use of information, for the purposes of s 183(1), if there has been no breach of an equitable obligation of confidence (Ground 5(a));

(ii) there can be no improper use of information within the meaning of s 183(1) unless that information would be treated as confidential in equity (Ground 5(b));

(c) ought to have found that it was improper for Mr Leung to access and use the details of the 17 suppliers stored in his WeChat account for his own benefit or the benefit of Broers and Sun Yee (Ground 6).

27 Finally, New Aim contends that the primary judge erred in dismissing the claims against Sun Yee and Broers (Ground 7) and in awarding costs in the respondents’ favour (Ground 8).

28 New Aim contends that, if the appeal against Mr Leung succeeds on breach of confidence, the matter must be remitted for determination of the issues concerning Sun Yee and Broers. The respondents contend that the claims against Sun Yee and Broers should be dismissed even if the appeal succeeds as against Mr Leung.

29 The appeal should be allowed and the matter remitted for determination of questions of relief against Mr Leung and of liability and relief against Sun Yee and Broers.

30 In summary:

(a) It is true that the confidential information was broadly defined in the pleadings and that New Aim did not abandon its broader case that the information concerning all suppliers was confidential. The difficulty with the primary judge’s reasons is that the case conducted at trial, as to misuse and relief, was confined to the information concerning the 17 suppliers, yet her Honour did not determine whether that narrower body of information possessed the necessary quality of confidence or was received by Mr Leung in circumstances importing an obligation of confidence. The case was opened and conducted on the basis that the information concerning the 17 suppliers was confidential. Once attention is directed to that specific information, the claim for breach of confidence should have succeeded.

(b) The claim in contract should have succeeded for reasons equivalent to those given with respect to the claim for breach of confidence.

(c) The primary judge erred in treating the claim under s 183(1) as necessarily rising or falling with the equitable claim for breach of confidence. Section 183(1) applies to “information” and can apply even where the information does not answer the equitable description of confidential information. Mr Leung’s conduct departed from the standards of commercial behaviour to be expected of a departing CCO, with his history of employment at New Aim, and in his circumstances. Mr Leung’s disclosure and use of the information concerning the 17 suppliers was an improper use of information obtained because of his position. Mr Leung improperly used the information to gain an advantage for himself and Broers. Accordingly, a contravention of s 183(1) was made out, even if New Aim failed to prove that the information was information of a kind which would answer the equitable description of confidential information.

THE CONTRACT

31 New Aim addressed the appeal (as it had the trials) by dealing first with breach of confidence in equity, then contract, and then its claim for contravention of s 183(1). This approach was understandable given the terms of the particular contract. Logically, a contract claim is anterior to a claim for breach of confidence in equity because the scope of the parties’ contractual obligations with respect to confidential information informs the scope of any equitable obligation, including whether there is any role for equity to intervene at all – see: Coco v AN Clark (Engineers) Ltd [1969] RPC 41 at 47 (Megarry J); Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; 165 IR 148 at 118; Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598 at 522; Luvalot Clothing Pty Ltd v Dong [2022] FCA 1411 at [190] to 192; Heydon JD, Leeming MJ, Turner PG, Meagher, Gummow & Lehane ’s Equity Doctrines and Remedies, (5 th ed, LexisNexis Butterworths, 2014) at [42-050] and [42-055].

32 The contractual relationship generally, and specifically with respect to confidential information, is also important to the application of s 183(1).

33 Clause 33 of Mr Leung’s employment contract provided:

1. Confidentiality

33.1    During the course of your employment with New Aim, you may become acquainted with or obtain access to confidential information relating to the business and affairs of New Aim, its subsidiaries and their clients.

33.2    Confidential information may or may not be expressly designated as such. You will be obligated during, and also after termination of your employment to maintain the confidentiality of such information and to disclose it only when you receive prior written authorisation from the Directors of New Aim. You acknowledge that any such disclosure could cause considerable loss and damage to New Aim. If you have any concerns as to whether disclosure in any circumstance would be authorised, you should ask a Director of New Aim beforehand.

33.3    You shall not, during or after your employment with New Aim, use any of the confidential information of New Aim and its subsidiaries for personal gain, in order to disadvantage the company or for any purpose other than for the benefit of New Aim.

34 The contract did not contain a definition of “confidential information”. Objectively construed, the parties intended that the expression would capture information which, in the employment and commercial context known to them, was to be treated as confidential. On the facts of the present case, cl 33 does not operate in any materially different way from the equitable obligation of confidence in relation to confidential information acquired in the course of employment.

35 The parties have conducted the case on the basis that the relief if the contract claim were upheld would be the same as the relief if the claim for breach of confidence in equity were upheld. In the circumstances, it is appropriate to address the issues principally by reference to the breach of confidence case and it is unnecessary to explore the debate about whether equity would generally intervene where there is both a contractual obligation and an equitable obligation of confidence – as to which see, for example: Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2021] FCA 809; 160 IPR 361 at [312] and [313], referring to Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2; 85 NSWLR 196 at [150] and Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 281 at [34], [35] and [38].

36 The claim in contract succeeds for reasons equivalent to the reasons the claim for breach of confidence succeeds, as discussed next.

BREACH OF CONFIDENCE

Ground 1: the primary judge did not determine the case as conducted at trial

37 The primary judge proceeded on the basis that New Aim’s case was that the confidential information comprised the identity and contact details of all suppliers as at January 2021, including historical suppliers and suppliers from whom New Aim ceased to obtain products because of faults or lack of profitability – see, for example: at J[291] and [294].

38 Her Honour stated that New Aim did not run an alternative case that the confidential information comprised the identity and contact details of active suppliers (including the 17 reliable suppliers) of high-quality products suitable for sale in the Australian market indisputably disclosed by Mr Leung to Broers: at J[284].

39 As has been mentioned, when the proceedings were commenced New Aim did not know the extent of disclosure by Mr Leung. It relied on a broad definition of “New Aim Confidential Information”. The definition as it stood during the second trial was contained in [11] of the Second Further Amended Statement of Claim (2 FASOC) and provided, relevantly, as follows:

11.    During the course of his employment with New Aim, Mr Leung had access to:

…

(b)     confidential and commercially sensitive business information of New Aim, comprising each of the following categories:

(i)    the identity and contact details of the suppliers to New Aim of products as at January 2021 including each of the New Aim Products [with one supplier excluded]

…

(together, the New Aim Confidential Information).

40 The misuse of confidential information was pleaded in [19] in the following way:

19.    In the course of his work for Sun Yee and/or Broers, … Mr Leung [has] used the New Aim Confidential Information (or parts of it) including to assist Sun Yee and/or Broers to procure, promote and sell the Copied Products.

41 After proceedings were commenced, it became clear that the names of contacts at 17 active suppliers had been disclosed by Mr Leung. The first trial focussed on the 17 suppliers. Despite this focus on the 17 suppliers, New Aim did not abandon its primary contention that the identity and contact details of all suppliers as at January 2021 was confidential. It was entitled to maintain this broader definition and explore, during the proceedings, whether further breaches might come to light. The first trial judge focussed on the information relating to the 17 suppliers in considering the confidentiality of the information, stating at [2022] FCA 722 at 155:

In my view, the extent to which the claim to information belonging to the applicant has been made out on the evidence is limited to the pleading at paragraph 11(b)(i) of the FASOC, namely the identity and contact details of the suppliers to New Aim of products as at January and March 2021 and then confined to the 17 identified suppliers in annexure MC-1 to the affidavit of Mr Chen of 5 November 2021, when read with annexure ML-8 to the affidavit of Mr Leung of 5 November 2021.

42 The first appeal was also consistent with the case being focussed on the 17 suppliers: [2023] FCAFC 67 at [23] to [25], [35] to [37], [39], [41] and [45].

43 After the first appeal, New Aim’s pleading continued to identify the relevant information broadly, by reference to the identity and contact details of (all) suppliers to New Aim as at January 2021.

44 The new trial before the primary judge was conducted on a narrower footing in an important practical sense. The evidence of misuse was confined to the information concerning 17 identified suppliers, and New Aim confined the relief it sought accordingly. New Aim’s narrower forensic focus on the 17 suppliers was reflected in the way New Aim opened and closed its case, albeit it did not abandon its broader case.

45 In its written opening, New Aim made clear that the “confidential information in suit comprises the details of its suppliers and the fact that New Aim has identified them as reliable suppliers of high quality products that are suitable for the Australian market” and that “[t]his includes, at least the 17 suppliers … [i]t also includes the WeChat contact list”: AOS at [39]. New Aim submitted that the evidence would establish that Mr Leung knew that the contact details that he provided to Broers were contact details of suppliers to New Aim of products that New Aim had identified as reliable suppliers of high quality products suitable for the Australian market: AOS at [44]. It submitted that Mr Leung knew, or at the very least ought reasonably to have known, that this information was confidential: AOS at [44]. It also submitted that the evidence would establish that each of Broers and Sun Yee knew, or ought reasonably to have known, that the supplier contact details provided by Mr Leung to Broers were details of New Aim’s suppliers, being suppliers which New Aim had identified as reliable suppliers of high quality products suitable for the Australian market: AOS at [45].

46 The respondents, in their written opening, complained about the particularity of the information because it was unclear whether suppliers meant current and former suppliers or only current suppliers: ROS at [21]. No complaint was made that the confidential information comprised at least the information concerning the 17 suppliers and the WeChat contact list: ROS at [34]. There was no dispute between the parties that those 17 suppliers were “current” in the sense that they were suppliers to New Aim at the time Mr Leung provided the contact details to Broers – see: Amended Statement of Agreed Facts.

47 In its oral opening, New Aim made clear that it maintained its broad case that the confidential information comprised the contact information in relation to all suppliers and this included historical suppliers. New Aim also made clear that its case was focusing on the 17 suppliers because those were the suppliers whose information was said to have been used: T2.45–3.11, 3.33–40, 4.41–44, 5.27–33, 6.1–2, 6.14–19, 6.34–37, 10.21–22, 10.36–38, 13.6–9. New Aim explained that the trial before the first trial judge had focussed on the 17 suppliers and that the 17 suppliers were central in the first appeal: T4.40–6.4. At T4.41–45, New Aim submitted:

… the next point I wanted to make, just to make it perfectly plain, this case is focusing on the 17 suppliers. That’s the way the case evolved, and that’s the information that we know Mr Leung used – it’s common ground. He has admitted he used it, and we say, misused it, and I interpolate, we say – and we will develop this in closing submissions …

48 New Aim explained that one of the respondents’ contentions, with which it disagreed, was that the contact details associated with the 17 suppliers was in the nature of “know how” because it was information which Mr Leung remembered: T5.27–29. New Aim quoted from the judgment of the first trial judge (referring to the spreadsheet identifying the 17 suppliers) and submitted (T5.27–32):

That’s our case. They’re the 17 suppliers, and our friends in their written submissions say, “This isn’t confidential information, because this is in the nature of know how. It was in Mr Leung’s head.” We will take your Honour to that, and I will say a little bit more about it later in this opening, but in short, your Honour will have seen that the evidence is bereft of any suggestion by Mr Leung that he remembered this information, that he had it in his head.

49 At T13.6–9, after referring to paragraph 3 of an affidavit of Mr Leung, New Aim submitted:

And, I know – I appreciate your Honour knows this, but that information being referred to in paragraph 3 is obviously wider than the 17 suppliers. But we’re only pressing the case before your Honour about the 17, because it’s only the 17 we know the information has been misused.

50 Shortly after the oral openings, New Aim expressly accepted that (at least injunctive) relief sought should be tailored to those 17 suppliers: T51.39–52.4.

51 New Aim adduced evidence specifically addressing the 17 suppliers, from Ms Ho (New Aim’s General Manager – Channel and Category) and Mr Huang (New Aim’s COO).

52 Ms Ho gave detailed evidence concerning New Aim’s practices in selecting suppliers: Ho 1 at [22] to [50]. She addressed the key aspects of the process undertaken by New Aim’s Buyer Team to identify new products and suppliers:

(a) Step 1 involved analysing industry and internal data for the purpose of proposing new products: Ho 1 at [26]. Sometimes new products would be suggested by an existing supplier: at [28].

(b) Step 2 involved New Aim’s Buyer Team in China identifying a range of suppliers potentially suitable for the product line: at [29]. This was achieved through searches on business-to-business websites, business-to-consumer websites and attendance at the Canton Trade Fair: at [30] to [32].

(c) Step 3 involved the Buyer Team developing a shortlist of suppliers through consideration of publicly available information and sometimes through direct contact with suppliers: at [33] and [35]. Reports would be prepared to propose new suppliers: at [34].

(d) Step 4 involved contacting the shortlisted suppliers to ascertain further information including unit prices, minimum order requirements and timing limitations: at [36].

(e) Step 5 involved the Buyer Team preparing a Value Chain Analysis report, containing key financial data for each product and supplier, and a Product Proposal report, containing key information such as production time, pricing, payment terms, deposit amount and ability to comply with compliance certificates: at [38] and [39]. Step 5 also involved a range of quality and safety assessments: at [40]. New Aim ordered samples from a range of suppliers to compare quality and safety, usually assessed by its QC Team. The Compliance Team assessed the product to ensure that it met New Aim’s standards and any relevant legal or regulatory standards. New Aim might apply for relevant regulatory certificates where required. It might engage third parties to assist where testing was required.

(f) Step 6 involved approving the supplier and placing a first order: at [41]. Approval was provided by Mr Leung when he was Head of the Buyer Team.

(g) Step 7 involved the Buying Team negotiating the terms of payment with the supplier: at [44].

(h) Step 8 involved New Aim’s QC Team or a third party QC company engaged by New Aim reviewing the products before they were shipped to Australia: at [45].

(i) Step 9 involved New Aim making the products available for sale to Australian consumers on a range of online platforms: at [46]. New Aim then monitored progress and sales. A part of this involved creating “fault reports”: at [47].

53 Ms Ho then stated that the general process for sourcing suppliers which she had described applied in relation to the 17 suppliers: at [49]. She then addressed each of the 17 suppliers, exhibiting over 12,000 pages of documents: Ex SH-1. These documents were relevant to the reliability of the 17 suppliers, and the confidentiality of the identity and contact details of those suppliers, on the basis that the documents showed New Aim’s sampling, testing, inspection and issuing of Engineering Change Approvals to refine products relevant to each of the 17 suppliers.

54 The primary judge accepted that Ms Ho had acquired an understanding of New Aim’s current and historical practices concerning the selection of new products and suppliers and stated that her evidence was broadly consistent with the evidence given by Mr Huang and Mr Leung regarding the process for sourcing potential suppliers while Mr Leung was employed at New Aim: J[87]. The primary judge found that the process for identifying suppliers in China of products suitable for the Australian market required effort and the process could take several months: J[228].

55 As mentioned, Mr Huang also addressed the 17 suppliers in his affidavit. He had a table prepared from New Aim’s business records, identifying and summarising: (a) the 17 suppliers and the products sourced from those suppliers before 2022; (b) New Aim’s brand for those products; and (c) the date of New Aim’s first order from each supplier: Huang 1 at [124]; Ex DH-17. Each of the first orders occurred when Mr Leung was an employee of New Aim. Invoices and purchase orders from those suppliers comprised Ex DH-18. Mr Huang also addressed the dollar value of the amounts of product that New Aim ordered from the 17 suppliers in the period from 1 July 2017 to 30 June 2022: Huang 3 at [15] to [17]; Ex DH-37 and DH-38 (these two exhibits were not put before the Court on the appeal).

56 Mr Leung addressed in his evidence each of the contacts associated with the 17 suppliers and the circumstances in which he disclosed the identity and contact details of the relevant individuals: Leung 1 at [142]; see also [30], [67], [73] and [116]; Confidential Annexure ML‑28; Confidential Annexure ML-30. His evidence on this topic is summarised in Annexure A to these reasons.

57 The evidence of Mr Leung was relevant to assessing the confidential nature of the information concerning those suppliers and to determining the circumstances in which that information was obtained.

58 Mr Leung did not always indicate when precisely he met each contact in his evidence, but, in the case of each of the 17 suppliers, the context indicates that it was likely during Mr Leung’s employment with New Aim.

59 In its written closing, New Aim continued to advance its case by reference to the 17 suppliers and proposed relief framed by reference to them: ACS[85] and [87] and the orders set out in Annexure A to ACS.

60 In oral closing, counsel for New Aim stated that “the only real issue in the case is whether the names of the details of the 17 New Aim suppliers used by the respondents has the necessary quality of confidence”: T270.7–9.

61 In oral closing in reply, counsel for New Aim also submitted that, if a subset of the entire body of information relating to all suppliers as at January 2021 was not confidential, that did not prevent a finding that a subset was confidential: T338.39–339.2 (T339.12–22).

62 The respondents submitted on appeal that the primary judge correctly analysed the case by reference to the pleaded definition of New Aim Confidential Information and that New Aim now seeks impermissibly to recast its case on appeal, as it allegedly sought to do in closing before the primary judge. The respondents submitted that New Aim’s submissions at trial were largely directed to supplier information generally rather than the information concerning the 17 suppliers and that, if the information had been identified more narrowly, it would have conducted the case differently. The respondents submitted that, if the case had been put that there were specific reasons why at least the information concerning the 17 suppliers was confidential, even if some parts of the New Aim Confidential Information were not confidential, then the respondents would have had to cross-examine Mr Huang and Ms Ho on such matters as: how reliable those suppliers were, what effort had been taken to identify those particular suppliers and what the commercial value of those particular relationships was, as opposed to all of the others. The respondents submitted that none of the evidence adduced by New Aim addressed such matters.

63 These submissions should not be accepted.

64 First, it was clear from its written opening submissions that New Aim contended that the confidential information comprised at least the information concerning the 17 suppliers.

65 No complaint was made about that in the respondents’ written opening. The respondents’ complaint related to “currency” which was not an issue in relation to the 17 suppliers who the respondents accepted were relevantly “current”.

66 Secondly, it is not correct to say that New Aim’s evidence did not address the confidentiality of the information concerning the 17 suppliers. Ms Ho’s evidence addressed the time and effort involved generally in sourcing suppliers, stated that these general processes applied to the 17 suppliers, and then exhibited thousands of pages of New Aim’s business records relevant to quality and supervisory issues concerning those specific suppliers: Ho 1 at [49]. There was nothing to suggest Ms Ho’s personal involvement in the transactions and dealings evidenced by those records. Unsurprisingly, the respondents did not cross-examine Ms Ho about the business records, but instead analysed those records to prepare two aide-memoires and made thorough submissions about that evidence: RCS at [133] to [140]. Specifically, the respondents made detailed submissions to the effect that, “if one focuses narrowly on the 17 suppliers to New Aim from which Broers also sourced products”, the documents in SH-1 revealed that those suppliers were not reliable: RCS at [133] to [140].

67 These were obvious submissions to have been made in the circumstances. The evidence of Mr Huang and Ms Ho was relevant to assessing the confidential nature of the information concerning the 17 suppliers. It was a necessary part of New Aim’s case that the contact information relating to the 17 suppliers was confidential. Even if New Aim established that, generally, supplier contact information was confidential, the respondents could defend the case on the basis that the information concerning the 17 suppliers was not confidential. This is what the respondents did, including on the basis that New Aim had failed to establish that the 17 suppliers were reliable, being a matter on which New Aim relied to establish the confidential nature of the information.

68 Thirdly, the quality or character of the information concerning the 17 suppliers (including whether it was confidential and, if so, the degree of confidentiality) was independently relevant to the case brought by New Aim under s 183(1), irrespective of its relevance to the breach of confidence case. In its written opening submissions, referring to considerable authority supporting such a view, New Aim made clear that its position was that s 183(1) should be found to apply irrespective of its success or failure in its claim for breach of confidence: AOS at [47] to [51]. The status of information as confidential or otherwise (and, if confidential, the degree of confidentiality) was relevant to the question of whether the use of information, obtained because a person is or was an employee, was relevantly “improper” under s 183(1).

69 Further, the s 183(1) case did not turn on whether the information concerning all suppliers was confidential, but rather on whether the use of the information concerning the 17 suppliers was improper, a question to which the confidential nature of the information was relevant (although not determinative).

70 New Aim did not abandon its broad definition of New Aim Confidential Information. The primary judge dismissed that broad case and New Aim does not suggest on this appeal that her Honour erred in that regard. New Aim also opened and conducted its case on the basis that the information concerning the identity and contact details of the 17 suppliers was confidential. New Aim confined its allegations of misuse, and the relief sought, to the information concerning those 17 suppliers, thereby bringing the particular circumstances relevant to those 17 suppliers into the heart of the contest. It was clear that New Aim contended that the information concerning the 17 suppliers, said to have been misused, was confidential. The primary judge recorded as much at J[37(b)] stating “New Aim contended that the New Aim Confidential Information included … at least the 17 suppliers, set out in Confidential Annexure ML-28, being the list of New Aim suppliers from whom the respondents admit that Broers sourced products”.

71 The primary judge approached the questions whether the information had the necessary quality of confidence, and whether it was received in circumstances importing an obligation of confidence, by reference only to the broader class of all suppliers as at January 2021, including historical suppliers and suppliers from whom New Aim had ceased sourcing products.

72 Given the way in which the case was conducted, it was necessary also to decide whether the information concerning the 17 suppliers, being the information said to have been misused, and in respect of which relief was sought, possessed the necessary quality of confidence and was received by Mr Leung in circumstances importing an obligation of confidence. Those questions were at the heart of New Aim’s case. The respondents addressed that narrower case as well as the broader case.

73 It is true that New Aim did not expressly plead an alternative case that the confidential information comprised a subset of the larger pleaded set of confidential information, namely the information concerning the 17 suppliers. However, a hearing that departs from the pleadings is not necessarily an unfair hearing: Garner v Central Innovation Pty Ltd [2022] FCAFC 64 at [68] to 71. One can depart from the pleadings in different ways. In the present case, there could have been no doubt that it was necessarily contended that the information concerning the 17 suppliers was confidential. That contention was necessarily implicit in the allegation of misuse. Further, as has been said, the confidentiality or otherwise (and, if confidential, the degree of confidentiality) of the information concerning the 17 suppliers was independently relevant to the question whether information had been improperly used within the meaning of s 183(1).

74 In Garner, the issue was whether the primary judge erred by finding that the confidential information in the case included a body of information termed the “SUGAR Extracts”, consisting of certain customer information, and was not limited to a narrower body of information. The Full Court held that the primary judge did not so err because the pleading could sensibly be read as including the SUGAR Extracts and the respondent was made aware of the case upon which the applicant intended to rely: at [101] to [102].

75 The respondent’s reliance on the decision of Burley J in University of Sydney v ObjectiVision Pty Ltd [2019] FCA 1625; 148 IPR 1 at [747] to [750] is misplaced. In ObjectiVision, the pleaded case, consistent also with the way the case was conducted until closing submissions, was that the whole of the source code of the relevant software was confidential information and that the misuse consisted in the reproduction of a substantial part of that whole. In closing submissions, ObjectiVision sought to advance a different case, namely that parts or fragments of the source code were confidential. Burley J did not permit that alternative and unpleaded case to be advanced and, in any event, held that it would fail because confidentiality of the alleged fragments had not been separately established.

76 The present case is different. The information concerning the identity and contact details of the 17 suppliers was the practical focus of the allegations of misuse and of the relief sought. It was clear from the opening submissions that New Aim contended that the information concerning the 17 suppliers was confidential. That case was addressed by both parties in the conduct of the trial, together with the broader case.

77 The element of unfair surprise that was present in ObjectiVision is not present here.

Ground 2: The primary judge ought to have found a breach of duty of confidence

78 The primary judge rejected the breach of confidence claim for two reasons:

(1) Her Honour concluded that the information concerning all suppliers did not have the necessary quality of confidence: J[284] to [291]. The reasons for that conclusion included that all suppliers “included suppliers of products with high fault rates and suppliers of products that were not profitable” and that New Aim had not explained how New Aim employees were meant to know that those suppliers were “reliable”: at J[291].

(2) Her Honour was not satisfied that the information concerning all suppliers was imparted to Mr Leung in circumstances where he ought to have known that information relating to the identity and contact details of all suppliers of New Aim, including historical suppliers and suppliers from whom New Aim ceased to obtain products because of faults or lack of profitability, was confidential information to New Aim which it sought to protect: J[292] to [294].

79 In relation to both issues, the primary judge proceeded on the basis that New Aim’s case was confined to the relevant information being information concerning all suppliers, including historical suppliers and suppliers from whom New Aim ceased to obtain products because of faults or lack of profitability.

80 When attention is directed to the information concerning the 17 suppliers, the considerations bearing upon confidentiality are materially different from those relied on by the primary judge in relation to the broader class of supplier information. The information in question did not concern historical suppliers or those that supplied faulty products. It concerned the contact details of individuals associated with 17 suppliers, which Mr Leung retained and disclosed. The suppliers had been identified by New Aim as reliable suppliers of products suitable for the Australian market. The contacts were disclosed to Broers because of the perceived value of the contact and associated supplier. The relevant suppliers could quickly supply reliable products, suitable in the market conditions which prevailed, and without the need for Broers to conduct research or undertake quality control measures. The contact details were not general knowledge which Mr Leung carried in his mind independently of the details recorded on his phone. The information was distinguishable from general knowledge about market conditions or general means of identifying reliable suppliers.

81 For the following reasons, the information concerning the identity and contact details of the 17 suppliers had the necessary quality of confidence and it was received by Mr Leung in circumstances which imported an obligation of confidence.

82 First, as discussed earlier, the contractual relationship expressly addressed the fact that Mr Leung would “become acquainted with or obtain access to confidential information relating to the business and affairs of New Aim”: see [33] above. Mr Leung held a high level of seniority at New Aim, entitling him to greater access to confidential information than others in the business: J[220]. He held senior roles, including Head of Buying (2015 to 2020) and CCO (from 2020). He knew that supplier information was treated by New Aim as confidential and he held concerns that such information could be taken and used by employees after employment ceased and was involved in discussing measures to minimise this occurring.

83 It can be inferred from Mr Leung’s evidence that he obtained the contact details for each of the 17 suppliers whilst he was employed by New Aim. Even if certain information was obtained prior to his promotion to senior positions from 2015, his roles from 2010 were all centrally connected to the supply of products. The receipt of supplier information was intimately connected with Mr Leung’s employment.

84 Second, as the primary judge stated, it was not in contention that the identity and contact details of suppliers who had established themselves as reliable suppliers to New Aim was commercially valuable information. The commercial value of the identity and contact details of the suppliers, if it was not immediately apparent on its acquisition by Mr Leung, was clearly apparent by the time he left New Aim in January 2021. Mr Huang gave unchallenged evidence to that effect: J[221]. As her Honour held at J[222]:

(a) Mr Dai (Sun Yee) considered it was important for an Australian e-commerce business to provide products suitable for the Australian market and to have reliable suppliers, which was something he regarded as commercially valuable.

(b) Mr Chen (Broers) accepted that reliable suppliers were a necessity for a successful e-commerce business.

85 Third, it was common ground, and the primary judge found, that the process for identifying suppliers in China of products suitable for the Australian market required effort and the process could take several months: J[228].

86 Fourth, as her Honour found at J[246]:

(a) New Aim’s system of white-labelling its product and allocating its own SKUs (Stock Keeping Units) meant that supplier details were not disclosed to New Aim’s competitors, purchasers or any other persons inspecting New Aim’s products.

(b) New Aim’s Buyer Team was aware of New Aim’s practices in white-labelling its product and allocating its own SKUs.

87 An SKU is a unique code used, amongst other things, to track inventory. Her Honour stated that the system of white-labelling and allocating its own SKUs were strong indicators that New Aim guarded the identity and details of its suppliers and regarded them as confidential information: J[246]. The employees in New Aim’s Buyer Team must have known that New Aim guarded the identity and details of its suppliers and regarded that information as confidential. Employees receiving or accessing supplier information would know that it was received or accessed on a confidential basis.

88 The primary judge held (at J[248]) that:

(a) Mr Leung ought to have known that white-labelling New Aim’s products would make it difficult for New Aim’s competitors to copy New Aim’s products, in circumstances where he also knew that New Aim’s suppliers did not sign exclusive supply agreements and could produce similar products for competitors: J[248]; and

(b) the practice of white-labelling products, and allocating its own SKUs, ought to have conveyed to Mr Leung that the identity and contact details of the suppliers were regarded as confidential information that New Aim wanted to protect: J[248].

89 These conclusions are well-founded, particularly when regard is had to Mr Leung’s conversation with Mr Huang concerning the protection of such information referred to at [92] below.

90 The respondents contended (NOC [1(b)]) that the primary judge should have found that, as at 18 January 2021, New Aim:

(1) allocated SKUs based on the product category, colour and size of a product to allow the company to track the product through its internal systems; and

(2) requested plain packaging so that it could include its own branding on products because it wanted customers to recognise and associate the products with New Aim’s brands.

91 Neither of these matters is inconsistent with a conclusion that SKUs and white-labelling had, as one advantage and purpose, the prevention of those receiving the products from identifying the identity and contact details of the relevant supplier. Indeed, as discussed at [103] below, the two experts agreed that businesses in the e-commerce industry that imported products from China took steps to keep supplier information confidential, such as white-labelling products: J[273].

92 Fifth, as the primary judge concluded:

(a) Mr Leung was aware that there were password controls that restricted access to the New Aim Purchasing System, which contained supplier information: J[251].

(b) Mr Huang and Mr Leung had discussed the sensitivity of New Aim’s supplier information and the desirability of restricting access to relevant members of the Buyer Team, rather than allowing access to the entire Buyer Team, as had been the case with the previous Vtiger system: J[252] and [254].

(c) During the discussion:

(i) Mr Leung said that he supported stringent access controls and that he was concerned that, if an employee resigned from New Aim, they could take commercially sensitive information, such as supplier details, to a competitor: J[252];

(ii) Mr Leung agreed that access to supplier information in the New Aim Purchasing System, including supplier names, contact details and other purchasing information such as pricing, should be further restricted so that employees could only see information concerning products and suppliers relevant to their role: J[252];

(iii) Mr Leung said he was concerned about the risk of a New Aim employee using commercially sensitive information to assist a competitor and agreed that access to supplier information and pricing should be limited so that employees could only see information concerning products and suppliers relevant to their role: J[254].

93 These findings favour the conclusion that the information concerning the identity and contact details of the individuals associated with the 17 suppliers had the necessary quality of confidence and that contact information received by Mr Leung during his employment was received in circumstances which imported an obligation of confidence.

94 Sixth, there was no dispute that the New Aim Confidential Information (as broadly defined) was not generally known or available: J[262].

95 The primary judge:

(a) recorded that the respondents had submitted that supplier information was ascertainable from publicly available sources and that experienced e-commerce businesses were able to identify competitors’ suppliers, and that suppliers were willing to disclose their customers: J[262].

(b) referred to the evidence of the respondents’ expert, Mr Wang, concerning the availability of Reverse Sourcing software which facilitated identification of suppliers, without guaranteeing success: J[263] to [265].

(c) recorded that, similarly to New Aim’s expert (Mr Schoots), Mr Wang stated that importers generally kept their supplier’s information confidential and would not disclose those details to other business, especially competitors: J[263];

(d) concluded that it was not a “regular outcome” for Mr Leung or other buyers at New Aim to be told, or to be able to discover, if a potential supplier also supplied a potential product to others in the industry: J[267].

96 The respondents contended that the primary judge did not adequately consider or weigh in the balance the ease or difficulty with which the information could be properly acquired or duplicated by others and that her Honour should have found that the information was capable of being acquired or duplicated by others within the e-commerce industry using publicly available information or independent inquiry or experience: NOC [1(d)].

97 The primary judge considered these matters. She referred, for example, to the evidence of Mr Leung about identification of products, identification of suppliers of identical products, and the identification of the suppliers of the products: J[134]. Suppliers could be identified with differing levels of ease. However, the evidence indicated that such information was treated as confidential and that the practice in the industry was not to disclose that information and to take steps to keep supplier information confidential, such as white-labelling products: J[273].

98 That supplier information can be ascertained from public sources can be said of the details of practically any commercial supplier engaging in export business. When assessed together with the matters referred to above, the fact that it was possible, perhaps with a considerable amount of time and work, to find a supplier via publicly available information does little to suggest that the information concerning the 17 suppliers was not confidential.

99 The respondents challenged the primary judge’s finding that it was not a “regular outcome” for Mr Leung or other buyers at New Aim to be told, or to be able to discover, if a potential supplier also supplied a potential product to others in the industry: NOC [1(c)]; J[267]. The respondents contended that the primary judge should have found that it was common for Mr Leung or other buyers at New Aim to be told or to be able to discover if a potential supplier also supplied a potential product to others in the industry, in circumstances where: Mr Leung gave cogent evidence to this effect (summarised at J[131] to [134]); Mr Leung was the only member of the Buyer Team during the relevant period to give evidence; and there was no basis to find that his evidence was unreliable.

100 Properly analysed, Mr Leung’s evidence, summarised by the primary judge at J[134], went to: identification of products; identification of suppliers of that kind of product; and identification of the supplier of the product. Her Honour addressed this evidence at J[267], where her Honour stated:

Mr Leung said that during his time at New Aim, it was common for New Aim to conduct online searches and copy competitors’ products that were also sold online. Mr Leung estimated that the majority of New Aim’s new products were copied from other eBay sellers and, in many cases, the products New Aim sold were identical to the original seller’s products. New Aim submitted that the fact that New Aim copied its competitor’s products did not mean the suppliers were the same. While Mr Leung said that through the process of identifying potential suppliers, he or New Aim were told or were able to discover if the potential supplier also supplied the potential product to others in the industry, in my assessment, the evidence does not suggest that this was a regular outcome.

101 Mr Leung did not state that it was a regular outcome that New Aim was told, or could find, the supplier of the product.

102 It might be observed that Mr Wang’s evidence – taken together with the industry practice in white-labelling products and New Aim’s practice of allocating its own SKUs – tends to underscore the commercial value in information concerning the identity of a supplier of a product and the likelihood that such information is treated as confidential by those in possession of it in circumstances such as those of New Aim and its employees.

103 Seventh, her Honour accepted the broad agreement between the two experts, Mr Schoots and Mr Wang, that the practice in the industry was for businesses to treat supplier information as confidential, not to disclose that information to competitors, and that businesses in the e-commerce industry that imported products from China took steps to keep supplier information confidential, such as white-labelling products: J[259] and [273].

104 Once attention is turned to the information concerning the 17 suppliers, most of the matters the primary judge relied upon in concluding that there was not the necessary quality of confidence are either irrelevant to the assessment, or of less weight.

105 Directing her attention to the case that the confidential information concerned all suppliers, the primary judge considered it significant that some suppliers might no longer be current or considered suitable due to rates of fault and other matters – see: J[286] to [288], [291].

106 That consideration was not relevant to the information concerning the 17 suppliers providing products suitable for the Australian market, all of which were current suppliers of New Aim – see: J[145] to [152].

107 Her Honour observed that the New Aim Purchasing System contained a “wide variety” of information, such as pricing: J[288]. That does not bear on the question whether the identity and contact details of individuals associated with the 17 suppliers had the necessary quality of confidence.

108 The primary judge observed that New Aim’s employees used their own mobile phones for work purposes: J[289]. Some employees would have had contact details of some of the suppliers. That fact does not of itself mean the information is not confidential. It means that the employee has certain information, which the employee would necessarily access to perform their work. The fact that some employees had some information must be balanced against the matters referred to above.

109 The respondents contended that the primary judge erred in her evaluation of the extent to which the New Aim Confidential Information was jealously guarded by New Aim as at January 2021: at J[233] to [246]; NOC[1(a)]. The respondents contended that the primary judge should have found that the weight of the evidence did not support a finding that New Aim jealously guarded the identity and contact details of suppliers, including because New Aim did not:

(1) include a clause in its employment contracts addressing the confidentiality of supplier identities and contact details, nor did it have any restraints of trade or non-solicitation clauses;

(2) impose disclosure constraints on its suppliers or third-party quality assurance companies, including by way of confidentiality agreements or undertakings;

(3) provide employees within its Buyer Team with a company-issued mobile phone for communicating with suppliers or potential suppliers;

(4) impose restrictions on the Buyer Team’s use of personal mobile phones for communicating with suppliers or potential suppliers;

(5) require employees within its buying team, particularly in Australia, to communicate via systems that were within New Aim’s control; and

(6) restrict access to supplier information to particular sub-groups in the Buying team.

110 As to (1), it is true that the employment contracts did not expressly refer to suppliers. The primary judge observed that New Aim’s employment contracts did not expressly require supplier details to be treated as confidential: J[290]. However, neither did it expressly exclude suppliers. As has been mentioned, Mr Leung’s contract (and by inference those of New Aim’s other employees) did not contain a definition of “confidential information”. The primary judge did not explicitly reach a conclusion about whether supplier details were within the meaning of the phrase in the contract. The lack of an express contractual inclusion of supplier details as confidential is not persuasive against confidentiality. As discussed at [92] above, Mr Leung knew that the information contained in the New Aim Purchasing System, which included supplier information, included confidential information.

111 As to (2) to (6), it is true that New Aim could have taken steps better to protect the identity and contact details of suppliers. However, that does not gainsay that it took steps to protect that information or that Mr Leung was aware that the information was confidential.

112 The respondents contended that the primary judge did not adequately consider or weigh in the balance whether the New Aim Confidential Information could be readily identified: NOC [1(e)]. The respondents contended that the primary judge should have found that the difficulty for Mr Leung to readily identify what comprised the New Aim Confidential Information (as broadly defined) weighed against the identity and contact details of suppliers being regarded as confidential in nature.

113 That submission has considerable force where the information being considered is that concerning all suppliers. It has less force in relation to the information concerning the 17 suppliers. Mr Leung evidently disclosed the contact details of the 17 suppliers to Broers because he considered that it would assist Broers in its commercial operations. The identity and contact details of the 17 suppliers could be, and was, readily identified.

114 The respondents contended that the primary judge did not adequately consider or weigh in the balance the extent to which the New Aim Confidential Information could be isolated from Mr Leung’s general know-how: NOC [1(f)]. The respondents contended that the primary judge should have found that the New Aim Confidential Information could not realistically be isolated or disentangled from Mr Leung’s general know-how, including personal relationships and connections he developed over the course of many years while employed at New Aim, which he was entitled to use after his employment at New Aim.

115 When this contention is directed to all suppliers as at January 2021, including those that were inactive, it has considerable force. A person in Mr Leung’s position would inevitably acquire, over time, general know-how in relation to sourcing products, dealing with manufacturers, attending trade fairs and assessing potential suppliers. That kind of accumulated skill and experience is not, without more, protectable after employment ends.

116 If the submission is directed to the more specific information concerning the 17 suppliers and the circumstances of the disclosure of that information, it has less force. The 17 suppliers were disclosed to Broers within a confined time in order: (a) to shortcut the process of independently identifying reliable suppliers of quality products likely to sell in the Australian market in the (pandemic) conditions which prevailed at the time; and (b) to put Broers in a position where it could commence trading quickly, in competition with New Aim. The information was capable of ready isolation from Mr Leung’s general experience and judgment – see: Del Casale at [41]. The information was transmitted, over a short time, to the respondents to provide a commercial advantage, namely for Broers to commence trading within a period which was unlikely otherwise to have been achievable. In those circumstances, the information in respect of which relief was sought, albeit not conveyed as a single list of suppliers, is more appropriately characterised as specific information than as part of Mr Leung’s general know-how. That is, the information is not what an ordinary person of average intelligence and honesty would regard as knowledge “not readily separable from his general knowledge”: Printers and Finishers Ltd v Holloway [1965] 1 WLR 1 at 6; RPC 239 at 256 (Cross J).

117 The position is analogous to an employee using his detailed knowledge of his employer’s suppliers and customers for the purpose of dealing with them in place of his employer. Referring to Printers and Finishers¸ Megarry VC stated in Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 at 246:

… I observe that Cross J, at p 6, pointed out that to recall information or skills was quite unlike memorising a formula or a list of customers, or what was said in confidence at a particular meeting: and he drew a distinction between such matters on the one hand, and, on the other hand, drawing on a fund of knowledge and experience which the employee might well not realise that it was improper to use. The test that I think he indicated was whether a man of average intelligence and honesty would think that there was anything improper in his putting his memory of the matters in question at the disposal of his new employers. Judged by that standard, I think it would be remarkable if a man of average intelligence and honesty were to think that there was nothing improper in using his detailed knowledge of his employer’s suppliers and customers for the purpose of dealing with them in place of his employer.

118 The position here is clearer than that addressed by Megarry VC because the identity and contact details of the 17 suppliers were not contained in Mr Leung’s memory, but were contained in written form in his WeChat contact list, supplemented by a “remark” with information about the products they supplied.

119 It should be emphasised that Mr Leung did not disclose a pre-existing written list of 17 suppliers. What the evidence establishes is that, for the benefit of Broers, he used knowledge acquired through his employment at New Aim as to which contacts were likely to be suitable and useful, together with the WeChat information he retained about those contacts, to connect Broers with the relevant suppliers. In that way, he used New Aim-derived supplier information to shortcut the process that would otherwise have been required to identify and access suitable suppliers. That use was more than the application of general skill or experience. It involved the deployment, for a competitor’s benefit, of specific supplier information, and means of contact or access, retained through his employment.

120 When one focusses on the information concerning the 17 suppliers which Mr Leung disclosed, and takes all the matters set out above into account, the following conclusions emerge:

(a) the information was precisely identified as the WeChat information being contact details for individuals associated with 17 suppliers (the first element of the action for breach of confidence);

(b) the information was disclosed by Mr Leung because the information was not known to the respondents, and Mr Leung considered it would assist Broers in commencing its commercial operations faster than it otherwise could have;

(c) the information was disclosed because Mr Leung regarded the suppliers as ones with which Broers should trade, including because they were reliable and the products would be suitable for the Australian market;

(d) the information was known by Mr Leung to:

(i) be commercially valuable to New Aim and therefore to others in the same industry;

(ii) warrant protection within New Aim in the sense of putting in place safeguards to limit the number of employees obtaining the information;

(iii) have been obtained by him in circumstance importing an obligation of confidence;

(e) the information had the necessary quality of confidence (the second element of the action); and

(f) the information was communicated to, or received by, Mr Leung in circumstances which imported an obligation of confidence (the third element of the action).

121 It follows that the first three elements of the equitable action for breach of confidence were satisfied – see: Australian Medic-Care Company Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; 261 ALR 501 at [631] to 638; Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 281 at [39].

122 The respondents conceded at trial that if the first three elements were satisfied, the disclosure of it was a misuse of the information. It follows that the primary judge ought to have concluded that the claim in relation to the 17 suppliers for breach of confidence in equity succeeded.

SECTION 183 CLAIM

The correct operation of s 183(1)

123 Section 183(1) addresses improper use of information obtained by a person because that person is or was a director, officer of employee of a corporation to gain advantage or cause detriment. It provides:

Use of information —civil obligations

Use of information—directors, other officers and employees

(1)    A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:

(a)    gain an advantage for themselves or someone else; or

(b)    cause detriment to the corporation.

Note 1: This duty continues after the person stops being an officer or employee of the corporation.

Note 2: This subsection is a civil penalty provision (see section 1317E).

124 The central focus of the provision is improper use of information received because one of the identified positions is held in the corporation. The application of s 183(1) requires: (i) precise identification of the information said to have been obtained by the relevant person; (ii) examination of whether that information was obtained because the person is or was a director, officer or employee of the corporation; and (iii) examination of whether the person improperly used the information either: (a) to gain an advantage for themselves or someone else; or (b) to cause detriment to the corporation.

Information

125 According to its text, s 183(1) does not require that the information be confidential information of a kind which would be protected in equity. It would, for example, be capable of applying to information protected by an agreement between the corporation and its employee, director or officer. Such an agreement could cover information which would not be protected in equity. Yet the existence of the agreement might make the use of the information improper. The issue which s 183(1) raises with respect to information is how the information was acquired: whether the information was acquired because of the person’s position – see: McNamara v Flavel (1988) 13 ACLR 619 at 625 (Millhouse J, with whom King CJ agreed); Australian Securities and Investments Commission v Somerville [2009] NSWSC 934; 77 NSWLR 110 at 39; United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2018] VSC 347; 128 ACSR 324 at 649; Smart EV Solutions Pty Ltd v Guy [2023] FCA 1580 at [71] to 72; Destec Pty Ltd v De Haas [2025] WASC 5 at 27.

126 The term “confidential information” is used in s 1317AAE of the Corporations Act and the concept of information being “confidential” is used in s 839B.

127 The status of the information as confidential or otherwise is centrally important in considering whether s 183(1) applies. Confidentiality is relevant to the issue of whether there was improper use of the information which the person obtained because of the person’s position. But there are degrees of confidentiality. The more confidential the information, the easier it would ordinarily be to establish improper use. It might be difficult or impossible to establish improper use if there is nothing whatsoever confidential about the information. A contravention of s 183(1) is not necessarily avoided simply because the information is not sufficiently confidential as to warrant protection in the auxiliary or exclusive equitable jurisdiction. Importantly for the present case, neither would s 183(1) necessarily be avoided simply because New Aim failed to establish its case for breach of confidence, or pleaded that case too broadly, or failed to establish confidentiality in the entire body of information of which the misused information formed a part.

Improper use

128 Speaking of the predecessor to s 182(1), the High Court in R v Byrnes [1995] HCA 1; 183 CLR 501 at 514–5 stated:

Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.

129 As explained further below, s 182(1) is structurally similar to s 183(1) and the meaning of “improper use” is equivalent in both provisions: AG Australia Holdings Ltd v Burton [2002] NSWSC 170; 58 NSWLR 464 at 125; Australian Securities and Investments Commission v Mitchell (No 2) [2020] FCA 1098; 382 ALR 425 at 1516.

130 In its application to a director, impropriety is found when a director is in breach of the standard of conduct that would be expected of a person in the director’s position by reasonable persons with knowledge of the duties, powers and authority of the person’s position as a director. In a practical sense, the inquiry is whether the person’s behaviour breached the norms of conduct thought necessary for the proper conduct of commercial life: Mitchell (No 2) at [1517]. However, the provision is not positing a universal standard; the issues need to be assessed focussing upon the particular duties and responsibilities of the officer concerned, by reference to the character of the conduct of the director in question: Mitchell (No 2) at [1518].

131 The statutory concept of “impropriety”, determined by reference to standards of conduct that would be expected of persons in a particular position, with the duties which come with that position (including duties sourced in contract and statute), is not coextensive with conduct which would breach an equitable obligation of confidence, even if such a breach would generally also constitute a contravention of the standards of conduct required by s 183(1).

Section 183(1) is not enacting a cause of action for breach of confidence

132 The primary judge dismissed New Aim’s claim under s 183(1) of the Corporations Act on the basis that “the obligation in respect of confidential information under s 183(1) of the Corporations Act aligns with the equitable obligation and there can be no improper use of information, within the meaning of s 183, if there has been no improper use of information under the general rules of equity”: J[316]. Her Honour understood this to be what had been held by the Full Court in Futuretronics FCAFC at [44] to 46.

133 The respondents submitted that Futuretronics FCAFC “was grounded in the cogent reason that the predecessor to s 183 was ‘originally taken … from the equitable duties set out by Romer J in Re City Equitable Fire Insurance Co Ltd [1925] Ch 407’”: RS[28].

134 Re City Equitable Fire Insurance was not a case about breach of confidence or about misuse of confidential information. Section 183(1) is not a statutory enactment of an equitable cause of action for breach of confidence, even if s 183(1) might often also apply where that cause of action is established. The significance of Re City Equitable Fire Insurance is simply that it was an early consideration of the equitable duties of corporate officers seen to have influenced later statutory provisions addressing duties of corporate fiduciaries.

135 Section 183(1), like s 182(1), is influenced by fiduciary law. Section 183(1) addresses improper use of information and s 182(1) addresses improper use of position. They are structured in a similar way. Section 182(1) provides:

Use of position—civil obligations

Use of position—directors, other officers and employees

(1)    A director, secretary, other officer or employee of a corporation must not improperly use their position to:

(a)    gain an advantage for themselves or someone else; or

(b)    cause detriment to the corporation.

Note: This subsection is a civil penalty provision (see section 1317E).

136 Equity imposes proscriptive obligations on a fiduciary, as a person obliged to act in another’s interests, not to obtain an unauthorised benefit from the relationship (the “no profit rule”) and not to be in a position of conflict (the “no conflict rule”) – see: Breen v Williams [1996] HCA 57; 186 CLR 71 at 113 (Gaudron and McHugh JJ). Sections 182(1) and 183(1) are targeted at preventing the identified persons from gaining an advantage through the improper use of their position or the improper use of information obtained because of their position. These may be seen as deriving from the fiduciary duty “to account for any benefit or gain obtained or received by reason of or by use of his fiduciary position or of opportunity or knowledge resulting from it”: Chan v Zacharia [1984] HCA 36; 154 CLR 178 at 198 (Deane J). Section 183(1) does not enact a statutory cause of action reflecting the equitable cause of action for breach of confidence. There is no sound basis to construe s 183(1) as applying only if the relevant facts could also establish a cause of action for breach of confidence.

Futuretronics

137 Futuretronics FCAFC concerned the disclosure by an ex-employee (Mr Atta) of one of Futuretronics’ suppliers (Storm Electronics) to one of Futuretronics’ competitors after he left employment. This was initially pleaded to constitute a breach of a confidentiality agreement: Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2007] F CA 1621 (Besanko J) at [19].

138 On the first day of trial, Futuretronics was permitted to amend to plead that this disclosure also constituted a breach of fiduciary duty, that Mr Atta disclosed confidential information, and that he breached ss 182 and 183 of the Corporations Act: Futuretronics FCA at [23], [26] and [167].

139 It was ultimately held that there was insufficient evidence to establish that the name of Storm Electronics as a supplier to Futuretronics was not generally known outside Futuretronics: Futuretronics FCA at [173]. This finding was upheld on appeal: Futuretronics FCAFC at [43]. This finding meant that the information disclosed did not fall within the definition of confidential information in the relevant employment contract, such that the contractual claim for breach of the confidentiality agreement had to fail: Futuretronics FCA at [173], Futuretronics FCAFC at [46].

140 That is important because it raises the question why equity, in its exclusive or auxiliary jurisdiction, would intervene to protect information which the contracting parties had agreed was not confidential. If there is a contractual obligation that covers the topic, there might be no occasion for equity to intervene to impose its own obligation or to make available different forms of relief: Del Casale at [118].

141 Besanko J stated that the fiduciary duty owed by Mr Atta, and his duty by reason of s 183(1) of the Corporations Act, were similar in scope: at [176]. His Honour had earlier stated that an employee might owe an employer an equitable duty of confidence: at [157]. His Honour held that Mr Atta’s fiduciary duty came to an end on the cessation of his employment save with respect to transactions current when the employee leaves: at [156]. His Honour rejected the claim under s 183(1) because the information was not “in any material sense confidential”: at [176].

142 The Full Court upheld Besanko J’s reasoning. The Full Court set out at [44] the following passage from the decision of Young J in Rosetex Company Pty Ltd v Licata (1994) 12 ACSR 779 at 784, concerning s 232(5) of the then Corporations Law:

Accordingly, in my view, ‘information’ in s 232(5) means the sort of information which equity would protect by injunction if a director used it in breach of his fiduciary duties. ‘Improper’ use of that information is in much the same plight as a breach of fiduciary duty under the general law. It follows that as there is not here any breach of fiduciary duty in the current circumstances there is no infringement of s 232(5).

143 Earlier in Rosetex at 783, Young J had stated:

It seems to me that in this schema the proper interpretation is to take the word “information” in subs (5) as referring to that type of information which equity would restrict the director from using to his personal profit.

144 At [45], the Full Court referred to the following passage from the decision of Young J in Forkserve Pty Ltd v Pacchiarotta [2000] NSWSC 979; 5 0 IPR 74 at 79:

[T]he general coverage of the obligations under s 232 are not to any major extent wider than the duties under the general rules of equity. There are some extensions made by the statute in that there is taken away some problems of privity, there is conferred a statutory right to receive damages or compensation where under the general law there would only be an account of profits and other ancillary advantages. However, generally speaking, if there has been no improper use of information under the general equitable principles, there is no improper use of information under the statute. This is logically so when one remembers that sections like s 232 were originally taken by the drafters of the Companies Act 1961 (Vic) and the Companies Act 1961 (NSW) from the equitable duties set out by Romer J in Re City Equitable Fire Insurance Co Ltd [1925] Ch 407.

145 The Full Court held that no error had been shown in the course taken by Besanko J: Futuretronics F CA FC at [46]. Their Honours stated:

No error has been shown in the course his Honour took. No breach of fiduciary duty by Mr Atta in relation to the Cygnett email has been established because his duty came to an end on the cessation of his employment save as to confidential information, and as indicated at [43], Futuretronics has not established that the supplier’s name was confidential. Further, equity would not regard disclosing the supplier’s name as misuse of confidential information. It would be a part of Mr Atta’s knowledge, skill and experience which, as a result of his previous employment, had become his own. See Printers & Finishers Ltd v Holloway [1965] 1 WLR 1 and Forkserve 50 IPR 74.

146 The Full Court held that the information was not confidential information. First, this was because it was not confidential information within the scope of the contract. Secondly, it was not confidential information which would be protected in equity because it was “a part of Mr Atta’s knowledge, skill and experience which, as a result of his previous employment, had become his own”, namely know-how. Ultimately, the Full Court was considering four causes of action: breach of contract, breach of fiduciary duty, breach of confidence in equity, and contravention of s 183. The premise of the argument appears to have been that, to establish a breach of s 183 in the context of the case, it was sufficient to make out one of the first three causes of action. None of the first three causes of action could be made out. Futuretronics did not put forward any other argument as to how Mr Atta’s use of information could constitute improper use of the information within the meaning of s 183. In those circumstances, the conclusion followed that breach of s 183 could not be made out.

147 It does not appear to have been put to the Full Court that it was necessary to establish a breach of an obligation of confidence to establish a breach of s 183 and that question was not directly addressed by the Full Court.

148 Section 183 is expressly framed in terms of information obtained because of a particular corporate position. Improper use is assessed objectively according to the standards of conduct that would be expected of a person in the relevant position. What would be expected is determined from the viewpoint of a reasonable person. The question is: what would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case: Byrnes at [25].

149 Futuretronics FCAFC should be understood as deciding that s 183(1) did not apply because Mr Atta did not improperly use the information he obtained because of his position. The information was not confidential under the terms of his contract and there was no role for equity to intervene to protect against breach of fiduciary duty or breach of confidence. Mr Atta was not shown otherwise to have fallen short of the standards required by s 183(1). To the extent that Futuretronics FCAFC adopted the view that “information” in s 183(1) is limited to the sort of information which equity would protect by injunction (to restrain a breach of confidence), that is too narrow a view having regard to the text, context and purpose of the provision. The word “information” is not limited to information which would be treated as confidential in equity.

Mr Leung contravened s 183(1)

150 The primary judge ought to have held that s 183(1) had been contravened.

151 The factual matters referred to above in addressing Ground 2 and the claim for breach of confidence are circumstances generally relevant to the issues which arise under s 183(1). The issues which arise under s 183(1) have been identified at [124] above.

152 The relevant “information” was the identity and contact details of individuals associated with the 17 suppliers of products suitable for the Australian market which Mr Leung gave to Broers, typically by sharing their WeChat contact details stored on his phone.

153 This information was obtained because of Mr Leung’s position as an employee of New Aim. Mr Leung obtained knowledge of the identity and contact details of the individuals, and that they were associated with suppliers of particular products to New Aim, while he was employed by New Aim, and while a focus of his employment was sourcing products from suppliers.

154 Mr Leung improperly used the information to gain an advantage for Broers and for himself. Mr Leung disclosed the information to bring New Aim’s suppliers into contact with New Aim’s competitor and to provide that competitor with an advantage. Mr Leung also used the information to advantage his own interests in relation to his prospective or actual employment with Broers. The improper use lies in the following circumstances.

155 First, Mr Leung knew that supplier information was commercially valuable to New Aim and likely to be valuable to other participants in the industry, including New Aim’s competitors.

156 Secondly, Mr Leung must have known that knowledge of the identity and contact details of individuals associated with the 17 suppliers would enable a competitor to source products from the suppliers. Mr Leung evidently provided the 17 contacts to Broers because he considered that this would enable Broers to obtain and sell reliable products quickly, being products suitable to the Australian market at the time, without the need to undertake extensive quality control measures. Although Mr Leung’s evidence was that he was not sure that the suppliers were “current”, that evidence must be assessed in light of his suggestion to a Broers employee to copy images available on New Aim’s website. Mr Leung must have known that providing the information was likely to lead to New Aim’s competitors sourcing the relevant products much faster than would otherwise have been possible, as in fact occurred – see: Part C, Tabs 41 and 48. It follows that Mr Leung must have known that providing such information to New Aim’s competitors was likely to arrogate future sales from New Aim to those competitors in circumstances where New Aim had invested substantial time and energy in identifying the reliable suppliers.

157 Thirdly, Mr Leung knew that New Aim had taken various steps to protect supplier information and keep it secret. Mr Leung had himself been concerned about the possibility of employees using commercially valuable supplier information post-employment, having discussed such matters with Mr Huang. Mr Leung was also aware of New Aim’s processes of white-labelling products and allocating its own SKUs.

158 Although the contract did not expressly include or exclude supplier information as “confidential”, a reasonable departing CCO in Mr Leung’s position, having the employment history and experience of Mr Leung, would have regarded the identity and contact details of individuals associated with the 17 suppliers as confidential and commercially valuable. The contact details were not something which Mr Leung held in his mind independently. Rather, the information was contained in his phone.

159 Fourthly, the “impropriety” in the statutory sense is amplified when regard is had to Mr Huang’s evidence, which was not denied by Mr Leung, that Mr Leung suggested to Broers that it use images sourced from one of New Aim’s websites. Such a suggestion was reasonably likely to lead to Broers copying images for a number of products, as in fact occurred.

160 The disclosure of the information by Mr Leung for the financial benefit of New Aim’s competitor, and Mr Leung’s new or prospective employer, was an “improper” use of it. A reasonable person in Mr Leung’s position, with knowledge of his employment history with New Aim, his contractual obligations, his powers and the duties he owed at New Aim, would consider that disclosure of the identity and contact details of the individuals associated with the 17 suppliers to New Aim’s competitor would breach the standards of conduct that would generally be expected of such a person in such circumstances: Byrnes at [25]. That is particularly so when viewed in the context of his suggestion to a Broers employee to copy New Aim’s images of the products to be sourced through the contacts disclosed.

161 Mr Leung’s evidence with respect to some of the 17 suppliers was that he disclosed the information to help the supplier; but that is not inconsistent with the existence of an additional purpose, which can readily be inferred in the circumstances, of providing an advantage to New Aim’s competitor.

162 If the information were regarded as insufficiently confidential for the purposes of an equitable claim for breach of confidence, or if it had been held that Mr Leung failed in that case because it was not properly pleaded, Mr Leung’s disclosure of the information concerning the 17 suppliers to New Aim’s competitor for the advantage of that competitor was nevertheless relevantly “improper” given the degree of confidentiality of that information and the circumstances in which the contacts were disclosed.

CLAIMS AGAINST BROERS AND SUN YEE

163 New Aim made derivative claims against Broers and Sun Yee in relation to the equitable breach of confidence claim. It did not make a claim against Broers or Sun Yee for accessorial liability under s 183(2) or for inducing breach of contract.

164 New Aim submitted that the matter would need to be remitted so that the claims against Broers and Sun Yee could be determined. The respondents, by their notice of contention, contend that the primary judge should have concluded that those claims failed even if the primary contravention against Mr Leung was established – cf: J[296].

165 First, the respondents contended that the claim of derivative liability against Sun Yee and Broers was primarily, if not entirely, inferential and relied on knowledge being imputed through Sun Yee’s sole director (Mr Dai) and Broers’ sole director (Mr Chen).

166 Secondly, the respondents contended that: (a) the uncontested evidence was that Sun Yee merely re-sold products sourced by Broers; (b) as a re-seller, Sun Yee did not know who supplied products to Broers, nor how that supplier information came into Broers’ possession, unless it specifically requested that information; (c) there was no evidence that Sun Yee did request such information (nor that it had reason to do so) in respect of the products it re-sold from Broers; (d) Sun Yee’s sole director (Mr Dai) was not involved in the process of sourcing products from China for Broers and was not provided with the identity or contact details of any supplier by Mr Leung; (e) Mr Dai’s involvement with Broers was limited to determining the profitability and saleability of potential products, and to making available Sun Yee’s resources to assist Broers; and (f) an inferential case against Sun Yee – dependent on Mr Dai’s knowledge that Mr Leung was, at different times, responsible for sourcing products from China while employed at New Aim or a senior employee at New Aim before he left – ought to have been dismissed.

167 Thirdly, the respondents contended that Broers’ sole director (Mr Chen) did not know and had no reason to infer that the contact details of potential suppliers provided by Mr Leung to Mr Chen or Ms Liu were suppliers to New Aim as opposed to the product of Mr Leung’s know-how. According to the respondents, an inferential case dependent on Mr Chen’s knowledge of Mr Leung’s prior employment and/or Mr Chen’s desire to grow the business of Broers quickly, ought to have been dismissed. Further, the respondents contended that: (a) Broers could not be liable in a derivative way by reason solely of the fact that Mr Leung subsequently came to be employed by Broers; and (b) New Aim’s contention that Mr Leung could simultaneously convey and receive the New Aim Confidential Information is unsupported by authority.

168 It is sufficient for present purposes to observe that the circumstances were sufficient to give rise to the availability of a rational inference that Mr Chen and Mr Dai were aware, or wilfully blind, to the likelihood that the information provided by Mr Leung was confidential. Whether such an inference should be drawn in light of all of the circumstances is a matter which would need to be determined on the evidence which has been given. One circumstance is that Broers copied New Aim’s images at the suggestion of Mr Leung. Both Mr Chen and Mr Dai knew about Mr Leung’s long-standing employment with New Aim and knew about New Aim’s business. They were both aware of Mr Leung’s WeChat “moment” in which he stated that he was “determined to do better and work harder than before, and totally destroy what I built in the past 12 years”. The extent of their knowledge, and why Broers came to employ Mr Leung, were the subject of other evidence and submissions.

169 The proceedings should be remitted for further hearing and determination, including determination of the claims against Broers and Sun Yee and determination of questions about relief as against Mr Leung. The evidence which would need to be considered to determine those matters was not all before this Court.

CONCLUSION

170 The appeal should be allowed with costs. The costs order made on 21 July 2025 should be set aside as a consequence of the appeal being allowed, except to the extent that the costs order concerns the second and third respondents at trial. The appellant is entitled to its costs of the appeal.

| I certify that the preceding one-hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, Thawley and Button. |
Associate:

Dated: 20 April 2026

ANNEXURE A

1 As referred to in [56] of the judgment, the following is a summary of Mr Leung’s evidence about the 17 suppliers.

2 Supplier 1: Mr Leung stated that, in late January 2021, he posted a ‘moment’ on his WeChat stating that his retirement had started, including a picture of him fishing. Shortly after this, he was contacted by Contact 1. Contact 1 told Mr Leung that she had stock that New Aim had ordered, but had refused to take because they were overstocked. Contact 1 asked Mr Leung if he knew anyone who might want to take the stock. Mr Leung suggested two persons: a friend in New Zealand; and Mr Chen from Broers. Mr Leung did not know when he first met Contact 1, whom he had known for several years.

3 Supplier 2: Mr Leung could not remember how he met Contact 2, but remembered that his company supplied playpens for babies as well as cat trees. Contact 2 had contacted Mr Leung in 2015 to see if New Aim was interested in cat trees. In around July 2021, Mr Leung thought that Broers should start selling cat trees. Because he knew Contact 2, he contacted him and asked whether he still sold cat trees. Mr Leung introduced Contact 2 to Alice, an employee of Broers in China. Mr Leung introduced Contact 2 as his friend and did not tell Alice that Contact 2 worked for a supplier of New Aim.

4 Supplier 3: Mr Leung had known Contact 3 for a number of years and he often met him when he visited trade fairs in China. Mr Leung stated that, in around January 2021, when he posted his WeChat moment saying that his retirement had started, Contact 3 contacted him and asked what he was doing next, to which Mr Leung responded that he wanted to take a break. In around June 2021, Mr Leung reached out to Contact 3 on WeChat and asked him if he was able to supply bar stools to Broers. The shape of the bar stool that Supplier 3 produces is quite rare. Mr Leung was only aware of two other suppliers who produced the same product. One of these was a very large factory, which was difficult to order from as it had a full production schedule. Mr Leung introduced Contact 3 to Alice so that she could obtain quotes and perform Broers’ internal checks. Mr Leung stated that he did not tell Alice that Contact 3 worked for a supplier of New Aim.

5 Supplier 4: Mr Leung met Contact 4 at the Canton Fair in around 2015 and they became friends on WeChat. Afterwards, Mr Leung often had dinner with Contact 4 when she visited Australia each year. Mr Leung stated that he usually paid for these dinners and was not reimbursed by New Aim. In around April 2021 Mr Chen of Broers asked Mr Leung for suggestions of products to sell online, and Mr Leung suggested quilts to him. Mr Leung then gave Contact 4’s contact information to Mr Chen. Mr Leung did not tell Mr Chen that Contact 4 worked for a supplier of New Aim.

6 Supplier 5: Mr Leung stated that Contact 5 added him as a contact on WeChat around the time of a strike that occurred at Honglang (a company based in China which provided sourcing services exclusively to New Aim) in 2020. Mr Leung gave Contact 5’s contact details to Mr Chen in around April 2021 after Mr Chen asked him for suggestions of products to sell online, and Mr Leung suggested fitness equipment. Mr Leung did not tell Mr Chen that Contact 5 worked for a supplier of New Aim. Mr Leung stated that the company for which Contact 5 worked was one of around five fitness product suppliers used by New Aim by the time he left.

7 Supplier 6: Mr Leung stated that he met Contact 6 at the Canton Fair several years prior to the time of his evidence, although he did not remember precisely when. They exchanged WeChat contact information when they met at the fair. Around July 2021, Mr Leung asked Contact 6 to send him his catalogue and then introduced Contact 6 to Alice. Mr Leung did not tell Alice that Contact 6 worked for a supplier of New Aim. Mr Leung stated that Contact 6’s company was one of around ten furniture suppliers used by New Aim at the time he left.

8 Supplier 7: Mr Leung stated that he did not recall when he met Contact 7 nor dealing with him during his time at New Aim. Mr Leung just recalled that Contact 7 added him as a contact on WeChat. Around April 2021, Mr Chen told Mr Leung that he wanted to sell a massage gun, and asked Mr Leung if he had any referrals. Mr Leung then sent Mr Chen the contact details of Contact 7, as Contact 7 was the only person of whom Mr Leung was aware that sold massage guns. Mr Leung did not tell Mr Chen that Contact 7 worked for a supplier of New Aim. Mr Leung stated that at the time he referred Contact 7 to Mr Chen, he did not know whether Contact 7’s company sold massage guns to New Aim.

9 Supplier 8: Mr Leung stated that he met Contact 8 at the Canton Fair, but he did not recall when. Around April 2021, Mr Leung had a discussion with Mr Chen during which Mr Chen asked him for suggestions of products to sell online. Mr Leung suggested quilts and provided Contact 8’s contact details to Mr Chen. Mr Leung stated that he did not tell Mr Chen that Contact 8 was a supplier of New Aim.

10 Supplier 9: Mr Leung stated that he knew Contact 9 for a long time, before Contact 9 became a supplier of New Aim. Mr Leung met Contact 9 through a mutual friend many years prior to the time of his evidence. They became friends and attended a number of dinners together since they met. Around April 2021, Mr Leung had a discussion with Mr Chen during which Mr Chen asked him for suggestions of products to sell online. Mr Leung suggested quilts and gave Mr Chen Contact 9’s contact information.

11 Supplier 10: Mr Leung stated that he had been friends with Contact 10 for many years, from before Contact 10 started his company that supplied products to New Aim. Mr Leung had dinners and drinks with him over the years. Around April 2021, Mr Chen told Mr Leung that he wanted to sell office chairs. Mr Leung stated that he referred Contact 10 to Mr Chen because they were good friends and he wanted to support Contact 10. Mr Leung did not tell Mr Chen that Contact 10 was a supplier of New Aim.

12 Supplier 11: Mr Leung met Contact 11 around 2018. Mr Leung stated that, since then, he has had dinner with him and visited his factory. Contact 11 told Mr Leung that his company was a supplier of one of New Aim’s competitors. Mr Leung gave the contact details of Contact 11 to Mr Chen in around May 2021. Mr Leung stated that he did not tell Mr Chen that Contact 11 worked for a supplier of New Aim.

13 Supplier 12: Mr Leung met Contact 12 at the Canton Fair around 2017. Mr Leung stated that he occasionally spoke to Contact 12 on WeChat about both personal and professional matters. Mr Leung provided Contact 12’s details to Alice in around April or May 2021. Mr Leung stated that he did not tell Alice that Contact 12 worked for a supplier of New Aim.

14 Supplier 13: Mr Leung met Contact 13 around 2019 at the Canton Fair. Mr Leung stated that Contact 13’s company was the only company of which he was aware that produced a certain kind of storage box. Contact 13 had told him at the Canton Fair that her company had a patent over the process associated with the production of that kind of storage box, and he believed that to be true because he has not been able to identify any other suppliers of a similar kind of storage box. Mr Leung stated that he gave the contact details of Contact 13 to Alice around April or May 2021 and did not tell Alice that Contact 13 worked for a supplier of New Aim.

15 Supplier 14: Mr Leung stated that he met Contact 14 when he visited her factory in China, although he did not say when this was. From time to time, Contact 14 visited Australia and Mr Leung became good friends with her. They often had dinner together when they both attended the Australian International Furniture Fair. Mr Leung stated that he gave Contact 14’s contact details to Alice because he wanted to assist Contact 14’s business by referring her new Clients. Mr Leung did not tell Alice that Contact 14 worked for a supplier of New Aim.

16 Supplier 15: Mr Leung met Contact 15 at the Canton Fair, although he did not say when. Mr Leung became friends with her when he was a Buyer at New Aim. Mr Leung stated that New Aim started selling products from Contact 15’s company after finding her company on Alibaba. After Mr Leung became Category Manager at New Aim, other Buyers became responsible for placing orders with Contact 15’s company but Mr Leung remained in contact with her. Around June 2021, Mr Leung contacted Contact 15 about placing an order for table legs. Mr Leung did not tell anyone at Broers or Sun Yee that Contact 15 worked for a supplier of New Aim.

17 Supplier 16: Mr Leung stated that he did not know when he met Contact 16, but that he recalled speaking to him a lot during the Honglang strike in 2020. Mr Leung contacted Contact 16 around June 2021 to discuss placing an order. Mr Leung stated that he did not tell anyone at Broers or Sun Yee that Contact 16 worked for a supplier of New Aim. Mr Leung stated that Contact 16’s company was one of around three suppliers of trampolines that New Aim used at the time he left New Aim.

18 Supplier 17: Mr Leung stated that he met Contact 17 at the Canton Fair but did not say when. Mr Leung spoke to Contact 17 during subsequent trips to the Canton Fair. In around April 2021, Mr Chen asked Mr Leung for suggestions of products to sell online. Mr Leung suggested fitness equipment and gave Mr Chen Contact 17’s details. Mr Leung did not tell Mr Chen that Contact 17 worked for a supplier of New Aim.