FEDERAL COURT OF AUSTRALIA

Dreamstreet Lending Pty Ltd v Weiss (No 2) [2023] FCA 684

ORDERS

THE COURT ORDERS THAT:

1.    By 4:00pm on 7 July 2023, the parties are to confer and provide any agreed minutes of orders giving effect to the reasons of the Court (accompanied by a note that explains the approach taken to any GST and interest), or in default of agreement, provide separate minutes of orders and file and serve short written submissions (not exceeding five pages), in which case the matter will be listed at 2:15pm on 14 July 2023 for submissions to be made on final orders.

2.    By 4:00pm on 30 June 2023, the parties notify each other of their respective positions as to costs.

3.    By 4:00pm on 7 July 2023, the parties each file and serve written submissions (not exceeding five pages) as to costs and advise the Court whether the party seeks to make oral submissions on costs.

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

TABLE OF CONTENTS

REASONS FOR JUDGMENT

BUTTON J:

INTRODUCTION

1    The first respondent (Mr Weiss) was a credit representative of the applicant (Dreamstreet) between 13 March 2018 and 11 June 2020. Mr Weiss was appointed as a consultant of Dreamstreet pursuant to a written services agreement dated 13 March 2018 (the Weiss SA) and, in that capacity, pursued leads (both self-generated and referred to him by Dreamstreet) in an effort to have customers take out loans with financiers via Dreamstreet. Dreamstreet typically earned upfront commissions, when loans were settled, and trail commissions. Under the terms of the Weiss SA, Mr Weiss was paid upfront commissions, but only earned trail commissions when the customer was a “Consultant Lead” (as opposed to a “Company Lead”), meaning that he brought the customer to Dreamstreet (“customer” is used in these reasons, noting that the parties referred to both “customers” and “clients” interchangeably).

2    Mr Weiss became dissatisfied with Dreamstreet from at least early 2020 — mostly in relation to Dreamstreet’s approach to paying commissions he considered were due to him and making some deductions against payments to him — and started exploring his options. He signed an employment contract with Financepath, being a business operated by the second and third respondents. Financepath is a competitor of Dreamstreet.

3    Both Dreamstreet and Financepath are in the business of assisting individuals and businesses to obtain loans. They each pursue “leads” and assist customers to obtain loans by assessing their ability to service loans and preparing and submitting loan applications to financiers. Both Dreamstreet and Financepath receive upfront and trail commissions on loans they arrange.

4    On three occasions in May and June 2020, Mr Weiss downloaded various information from the customer relationship management (CRM) system operated by Dreamstreet. These downloads are discussed further below, but it suffices for the purposes of introducing the issues to note that the information downloaded included details of customers with whom Mr Weiss had dealt while with Dreamstreet. In addition, after a search order was executed — the search order having been obtained ex parte — it was found that Mr Weiss also had various hard copy notebooks at his home recording aspects of his work with Dreamstreet, such as notes of discussions with customers. It was also found that he had a great many files on his personal devices including copies of documents provided to him by Dreamstreet customers, such as loan application forms, and supporting documentation (such as payslips and tax returns).

5    Dreamstreet brought proceedings alleging that Mr Weiss breached the Weiss SA in various respects concerning the cessation of his role with Dreamstreet and his taking up employment with Financepath, his downloading and retention of company information, and his dealings with Dreamstreet customers after the cessation of his consultancy with Dreamstreet. Dreamstreet alleges Financepath induced some of these breaches of contract by reason of its agreement to pay commissions to Mr Weiss for securing customers who take out loans through Financepath. Dreamstreet claimed damages from Mr Weiss and Financepath, and exemplary damages against Financepath.

6    By way of summary (and using defined terms introduced later in these reasons), I have concluded that:

(a)    Mr Weiss did not breach cl 5(d) of the Weiss SA by not serving out a three month notice period, because Dreamstreet waived compliance with this provision by cutting off his access to company systems and requiring Mr Weiss to leave immediately;

(b)    Mr Weiss breached cl 2(c)(i) of the Weiss SA by taking up employment with Financepath prior to terminating his consultancy with Dreamstreet, but Dreamstreet did not suffer any loss or damage by this breach;

(c)    Mr Weiss breached cll 7(a)(ii), (a)(iv) and (c) of the Weiss SA by making the First Download on 11 June 2020, but his retention of that download did not constitute an additional breach of the Weiss SA. Dreamstreet will be awarded nominal damages of $100 for this breach;

(d)    Mr Weiss did not breach cll 5(e)(ii) and 7(a)(viii) of the Weiss SA by retaining the Second and Third Downloads after 11 June 2020, because:

(i)    first, the Weiss SA did not require Mr Weiss to delete confidential company information, but rather to “return it”; and

(ii)    secondly, the Weiss SA contemplated that such confidential information could be used in a range of circumstances that post-dated termination of the agreement;

(e)    Mr Weiss did not breach cll 5(e)(ii) or 7(a)(viii) of the Weiss SA by emailing the Third Download to himself on 11 June 2020, because that was but another way of retaining that download;

(f)    Mr Weiss did not breach cll 7(a)(ii) and (iv) of the Weiss SA by opening the Second Download on his Financepath computer on 17 September 2020, because the use he made of the download was permitted by the Weiss SA;

(g)    Mr Weiss breached cll 7(a)(ii) and 7(c) of the Weiss SA by using customer documents he had obtained through his work with Dreamstreet in order to progress loan applications for those customers with Financepath. Dreamstreet will be awarded nominal damages of $100 for this breach;

(h)    Mr Weiss did not breach cll 13(a)(ii) and (iii) of the Weiss SA, because each clause, on its proper construction, is unenforceable as an unreasonable restraint of trade; and

(i)    Dreamstreet has not made out its claim against Financepath for inducing breach of contract because:

(i)    Dreamstreet has not proven any loss or damage arising from any alleged breaches of the Weiss SA; and

(ii)    Dreamstreet has not established the knowledge and intention elements of the tort.

7    Dreamstreet also claimed that compilations of data in the CRM system (detailed further below) were copyright works pursuant to the Copyright Act 1968 (Cth) (the Copyright Act). Dreamstreet contended that its copyright was infringed by Mr Weiss by his making of, and intention to retain, the first two downloads in May 2020 (ie the Second and Third Downloads). Dreamstreet also contended that its copyright was infringed by Financepath when Mr Weiss made a further download on 11 June 2020 (ie the First Download), made a further copy of the June download on his personal computer between June and September 2020, and when Mr Weiss made a further copy of the first May download in September 2020 (ie the Second Download) when he opened the file on his Financepath-issued laptop. By its prayer for relief, Dreamstreet sought declaratory and injunctive relief, an account of profits and/or an award of damages, and an order for additional damages under s 115(4) of the Copyright Act, but it did not pursue its account of profits claim at trial.

8    By way of summary, I have concluded that:

(a)    the compilation of data in the CRM, or alternatively the compilation of Person Records in the CRM or the compilation of Opportunity Records in the CRM, are not copyright works under the Copyright Act;

(b)    even if the Dreamstreet Compilations were copyright works, they fell within the definition of “Intellectual Property” and also “Confidential Information” under the Weiss SA and Mr Weiss was licenced to make and retain the Second and Third Downloads for certain purposes under the Weiss SA;

(c)    even if the Dreamstreet Compilations were copyright works:

(i)    Mr Weiss did not infringe Dreamstreet’s copyright because there was no reproduction of a substantial part of the relevant works; and

(ii)    Financepath did not infringe Dreamstreet’s copyright because there was no reproduction of a substantial part of the relevant works, and Mr Weiss’s conduct cannot be attributed to Financepath.

9    Finally, Dreamstreet claimed the right to claw back various commissions paid to Mr Weiss under the Weiss SA. I have concluded that Dreamstreet has established its claim to a clawback in the amount of $10,008.89 (ex GST) from Mr Weiss in respect of customers MG, DC and JC (Dreamstreet customers are referred to by their initials).

10    Mr Weiss cross-claimed against Dreamstreet. Mr Weiss claimed unpaid upfront commissions totalling $3,930.85 (inc GST). Dreamstreet admitted that it owes Mr Weiss a debt in that amount. Mr Weiss also claimed unpaid trail commission in respect of eight customers’ loans. Mr Weiss is entitled to be paid trail commission on the loans and at the rates admitted by Dreamstreet, and on the ML and EL loan at the rate established in Recipient Created Tax Invoices (RCTIs) issued in June and July 2019, but not at the higher rate claimed by him. Mr Weiss is also entitled to $4,400 (ex GST) for deductions made in relation to customers AM and BM.

11    I have also rejected Mr Weiss’s claim that the three month notice clause in the Weiss SA was an unreasonable restraint of trade or an unfair term within the meaning of the Australian Consumer Law (the ACL).

WITNESSES: CREDIT ISSUES

12    Dreamstreet’s principal witness was John Hronis. Mr Hronis is the founder and sole director of Dreamstreet. There are points at which his evidence conflicted with that of Mr Weiss, and Mr Mardegan, a witness called by Financepath. Mr Mardegan used to work for Dreamstreet but left and took up employment at Financepath. Most of those points of divergence in their evidence are not material to my consideration of the facts, but where they are, I have not accepted the evidence of Mr Hronis for the reasons which follow.

13    When being cross-examined — politely and calmly — by Mr Weiss, at a number of points Mr Hronis responded by shouting and banging the table in the witness box. When clear factual propositions were put to him, Mr Hronis was often entirely non-responsive, and answered by saying, in response to the fact he was being invited to confirm or deny, “that’s your opinion”. He also often responded, “I can’t recall”, notwithstanding that he claimed to have a good recollection of other events. When challenged by counsel for Financepath on the granular specificity of Mr Hronis’s claimed recollection of a particular phone call, Mr Hronis said, “I tell my friends I’ve got a memory like a camel”. In the context of the evidence as it was given, it was clear Mr Hronis was of the view that camels have very good memories.

14    In my assessment, when being cross-examined, Mr Hronis gave answers that variously constituted bare reconstruction in order to provide a rationale for some other answer or event, or which suited his perception of what served Dreamstreet’s interest in the moment. At times, Mr Hronis’s evidence also shifted and evolved as the cross-examination proceeded. For example, when being cross-examined in relation to facts concerning a particular customer, MG, Mr Hronis said (emphasis added), “[MG] — when I spoke to him and he said, ‘I’m leaving because the — the way my loan was set up by you were incorrectly done’ — that was the reason that he left Dreamstreet, and that’s why it was a result of the clawback.” When cross-examined on this purported call Mr Hronis said he had with MG, Mr Hronis then said it was one of his team who had the call with MG; Mr Hronis had not spoken to MG at all. Another example is Mr Hronis’s evidence in relation to the reason Dreamstreet was not paying trail commission in relation to the CL and YL loan to Mr Weiss. Mr Hronis initially said that the reason Mr Weiss was not paid trail commission was that he was receiving a higher-than-usual upfront commission. However, when shown that Mr Weiss was in fact only receiving the standard upfront commission, Mr Hronis changed his evidence and said, “[t]here must be a reason”, before going on the proffer what he thought must have happened.

15    I also am not able to accept the contents of Mr Hronis’s affidavits as necessarily correct where not supported by contemporaneous documentation or other witness evidence, given some glaring inaccuracies that were revealed during the trial. I will give two examples.

16    First, in the affidavit sworn by Mr Hronis in support of the ex parte freezing order (which affidavit was also relied on at trial), Mr Hronis said, amongst other things (emphasis added):

Dreamstreet has already identified that it has suffered the financial loss outlined in paragraph 18 above as a result of the actions of the Respondents arising from their conduct in misusing the Confidential Information. I believe that there may be other borrowers who have terminated their loan contracts negotiated by Mr Weiss through Dreamstreet, or are in the process of negotiating new finance through Mr Weiss, who have not yet been identified by Dreamstreet.

I believe that if the Respondents are not restrained from their conduct in misusing the Confidential Information there is a real and substantial risk that:

(a)     Dreamstreet will lose more clients and be required to repay more money to lenders such as outlined in paragraph 18 above and further loss of ongoing monthly trail commissions; …

17    In paragraph 18 of that affidavit, Mr Hronis stated that Dreamstreet had discovered that, in June 2020, customers MG and JG, and their trust entity, had paid out loans that Mr Weiss had arranged through Dreamstreet, resulting in Dreamstreet having to repay the lender the initial commission and losing trail commissions. The important fact that Mr Hronis failed to tell the Court in obtaining the ex parte order is that the finance discharge form Dreamstreet received from MG was dated 24 May 2020 (being a date before Mr Weiss took up employment with Financepath) and also that the refinance was occurring through National Australia Bank (NAB). The significance of the latter point is that Mr Hronis admitted in cross-examination by counsel for Financepath that he knew that Financepath did not source loans through NAB. While Mr Hronis sought to defend his claim in his first affidavit on the basis that a related company of Financepath might have referred the business, Mr Hronis is an experienced businessman. He did not claim to be unaware that the proceeding Dreamstreet initiated was against Financepath, and not some related entity. He did not disclose to the Court that the claims made — namely that Mr Weiss and Financepath had misused confidential information to cause MG and JG and the trust to refinance — were baseless given the refinance was through NAB, and Mr Hronis knew Financepath did not broker loans for NAB. Mr Hronis also accepted that similar claims made in his initial affidavit regarding customer MC were based on an assumption on his part that because MC was buying a property from a developer who had a relationship with Financepath, and this occurred after Mr Weiss left Dreamstreet, that the developer had taken MC to Financepath to arrange his finance. Mr Hronis said, “one and one in Greek [makes] two”. The lack of candour in the evidence on which Dreamstreet obtained an ex parte search order is deeply troubling. (No suggestion was made that counsel involved in that application had knowledge of the issues to which I have referred.)

18    Secondly, in another affidavit, Mr Hronis deposed that the customers AM and BM had refinanced their loans with Dreamstreet in an untimely manner due to poor service by Mr Weiss. That was not true. Records which emerged in the course of the trial showed the loans had not been discharged at all. Even if the claim in Mr Hronis’s affidavit was not made knowing it to be false, it shows a lack of care in the preparation of the affidavit and a willingness by Mr Hronis to swear an affidavit either without being satisfied of the truth of its contents or without taking proper care to ensure that statements of fact made by him on oath were true. Dreamstreet sought to characterise Mr Hronis’s evidence on this point as merely a mistake, suggesting that “Mr Hronis, under cross-examination by Mr Weiss, did not accept the proposition that AM and BM had refinanced away from Dreamstreet”. That rather mischaracterises Mr Hronis’s evidence. He did not refute that they had left Dreamstreet, but stated that he did not recall whether they had left Dreamstreet and refinanced quickly.

19    In its closing submissions, Dreamstreet sought to rationalise Mr Hronis’s conduct in the witness box on the basis that it was an emotional response by a person unable to come to terms with being cross-examined by the very person he considered had wronged him (ie Mr Weiss). Dreamstreet sought to contrast Mr Hronis’s conduct as a witness while being cross-examined by counsel for Financepath with his conduct while being cross-examined by Mr Weiss. While the contrast was not as striking as Dreamstreet would have it, I accept that Mr Hronis is likely to have found the experience of being cross-examined by Mr Weiss upsetting. That was not, however, due to any inappropriate conduct in court by Mr Weiss. As I have said, his mode of cross-examination was calm and polite. In any event, I do not accept that the extent of the deficiencies in Mr Hronis’s evidence, which I have noted, can be dismissed as being borne of emotional stress. The deficiencies go well beyond anything that could be explained away on that basis.

20    Mr Weiss’s affidavit evidence was also not candid in some respects. I accept Dreamstreet’s submission that, in cross-examination, it became clear that his affidavit evidence on some topics did not present a full and accurate account of events, especially in relation to the customers CB and TC. I address the deficiencies in Mr Weiss’s evidence regarding those customers further below. However, the crucial difference between Mr Hronis’s evidence and that of Mr Weiss — in addition to Mr Weiss not bringing an application for an ex parte search order with the obligations of complete candour that such an application carries with it — is that Mr Weiss readily accepted in the course of cross-examination that his account of some customer interactions had not been fulsome. He accepted that selected events had been presented in a way that was not fulsome and obscured relevant matters. Dreamstreet correctly noted in its submissions that Mr Weiss was, at times, prepared to make appropriate concessions. It did not submit Mr Weiss engaged in any conscious attempt to mislead the court. In my assessment, Mr Weiss’s answers in cross-examination were candid, and he did not attempt to avoid conceding that his evidence regarding CB and TC had been selective. Further, other than in respect of CB and TC, it was not demonstrated that Mr Weiss’s affidavit evidence was wrong (although Dreamstreet cross-examined on certain aspects of it with some vigour, and submitted that I should not accept his evidence on a small number of discrete topics).

21    I accept that Mr Weiss gave truthful and honest evidence in the witness box even though, as noted, his affidavits obscured more than they revealed in some respects. I cannot say the same about Mr Hronis. Accordingly, where there is a conflict in their evidence, I prefer the evidence of Mr Weiss.

22    Dreamstreet submitted I ought not accept Mr Weiss’s evidence on two matters: his purpose in making and retaining what is referred to as the First Download; and that Mr Weiss’s first response when contacted by Dreamstreet customers was to tell them they should return to Dreamstreet. Neither of those matters is, for reasons set out below, dispositive.

23    I also prefer the evidence of Mr Mardegan where it conflicts with the evidence of Mr Hronis. Mr Mardegan had no personal stake in the litigation and I have no reason to doubt his evidence. Moreover, the source of the conflict between the evidence of Mr Mardegan and Mr Hronis arises from Mr Hronis claiming to recall details of a phone call in mid-July 2020 when, as I have already noted, Mr Hronis’s claimed memory was erratic and unreliable.

BREACH OF CONTRACT CLAIMS

Alleged breach of the notice period: cl 5(d) of the Weiss SA

24    Dreamstreet alleged that Mr Weiss breached cl 5(d) of the Weiss SA by terminating it immediately when he was obliged to give three months’ notice.

25    Clause 5(d) of the Weiss SA provided that:

This Agreement may be terminated by the Company for whatever reason by providing the Consultant with not less than one month written notice and by the Consultant for whatever reason by providing the Company with not less than three months’ written notice[.] The notice does not have to specify reasons for termination.

26    I have concluded that Mr Weiss did not breach cl 5(d) of the Weiss SA by resigning without notice on 11 June 2020 on the basis that Dreamstreet waived compliance with cl 5(d).

27    It was common ground that Mr Weiss’s access to Dreamstreet’s CRM system was cut off on 11 June 2020. Dreamstreet pleaded that Mr Weiss had access to the CRM from 13 March 2018 to 11 June 2020. Mr Hronis also put 11 June 2020 as the end date of Mr Weiss’s access to the CRM in his evidence. Mr Weiss also deposed to having his access to the CRM, Dropbox and company email cut off on 11 June 2020. Although, in opening address, counsel for Dreamstreet spoke in terms of access having been cut off “soon” after 11 June 2020, I consider that Dreamstreet conceded that access to (at least) the CRM was cut off on 11 June 2020. Further, I accept Mr Weiss’s evidence as to the date his access to the CRM, email and Dropbox were cut off. Dreamstreet could have, but did not, adduce evidence that the access was cut off on some other date.

28    It was also common ground that it was on 11 June 2020 that Mr Weiss went to see Mr Hronis and advised him of his resignation. Mr Hall, also of Dreamstreet, was present at that meeting, but was not called as a witness. There was no explanation offered as to his absence.

29    Mr Weiss took the hard copy files he had at home with him to that meeting, and handed them over to Mr Hall at the meeting. Mr Weiss understood that to be standard practice given what he had observed during his time at Dreamstreet, during which there had been very high staff turnover (five roles were filled by approximately 30 individuals each year). Mr Weiss and Mr Hronis disagreed about whether Mr Weiss provided a hard copy of his resignation to Mr Hronis at the meeting, but nothing turns on this point of disagreement.

30    Mr Hronis accepted in cross-examination that a credit representative needs access to the CRM, Dropbox and email to undertake their duties for Dreamstreet. There was a dispute on the evidence regarding whether or not Mr Hronis called his assistant, Denise Vithoulkas, during the meeting and instructed her to cut off Mr Weiss’s access to company systems.

31    Given that it was clear that Mr Weiss’s access to company systems was cut off on 11 June 2020, and Ms Vithoulkas gave evidence she was instructed to cut off access immediately upon receiving the request (and not instructed to do it at some future time), I accept Mr Weiss’s evidence that the instruction was given during the meeting. Even if the instruction were given after the meeting, the fact remains that Mr Weiss’s access was cut off by Dreamstreet on 11 June 2020 and, by virtue of Dreamstreet’s actions, it was impossible for him to serve out any notice period given the nature of his duties.

32    I also accept Mr Weiss’s evidence that, as he was leaving the meeting, Mr Hronis told him to take his stuff and go, and asked another person, John Matheou to make sure Mr Weiss did not take anything. Mr Weiss was not cross-examined on his account (beyond it being suggested to him that Mr Hronis’s account, which made no mention of these matters, was correct).

33    I do not accept Dreamstreet’s contention that Mr Weiss’s resignation email terminated the Weiss SA immediately. Mr Weiss’s email did not give a specific date for concluding his role, but made reference to ensuring that “all my work is completed and/or in a position to be handed over to ensure a smooth transition period”. Mr Weiss’s email also referred to assisting with the completion of loans in train and completing any further document signings needed. Those were not matters that could be accomplished in a single day (noting Dreamstreet’s contention that the termination was effective immediately).

34    By cutting off his access to the company CRM, Dropbox and email immediately, and by directing Mr Weiss to take his stuff and go, Dreamstreet waived compliance with cl 5(d) of the Weiss SA. As Dreamstreet waived compliance with cl 5(d), it is not to the point that Mr Weiss would have had real difficulty serving out his notice period given that he had taken up employment with Financepath on 1 June 2020, and would be expected to start assisting Financepath customers once his induction with his new employer was complete.

35    In any event, even if Dreamstreet did not waive compliance with cl 5(d), it was itself not ready and willing to perform its obligations under the Weiss SA, which included providing Mr Weiss with leads and making available relevant documents in relation to customer transactions, and so was not entitled to sue for damages for that breach: Foran v Wight (1989) 168 CLR 385 at 402 (Mason CJ); Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (2010) 383 ALR 577; [2010] NSWCA 268 at [161] (Hodgson JA, with whom Allsop P and Macfarlan JA agreed).

36    In case I am wrong in my conclusion that there was no breach of cl 5(d) or that Dreamstreet is not entitled to claim damages as it was not itself ready and willing to perform, I will address the loss and damage claimed by Dreamstreet by reason of the alleged breach of the notice period. In its closing submissions, Dreamstreet claimed that it suffered the following losses by Mr Weiss’s breach of cl 5(d) of the Weiss SA:

(a)    lost upfront fees and trail commissions arising from the refinancing of the CL and YL loans by Mr Weiss through Financepath, alternatively loss of the chance to earn those fees and commissions; and

(b)    loss arising from the delay in earning upfront fees and trail commissions arising from the refinancing of the CB and TC construction loan.

37    In my view, Dreamstreet has not established on the balance of probabilities that, had Mr Weiss served out a three month notice period, Dreamstreet customers CL and YL would have refinanced through Dreamstreet, or that there was a loss of a real chance (which Dreamstreet put at a 35% chance) that this would have occurred and Dreamstreet would have earned the claimed fees and commissions. This is so for a number of reasons. First, CL and YL refinanced with Bendigo and Adelaide Bank, their existing lender. It is clear from internal bank correspondence that the bank did not pay commissions for “churned” deals. Unless Dreamstreet could have secured refinancing with a different lender, I am not satisfied that it would have earned any fees or commissions if the loan were refinanced with Bendigo and Adelaide Bank.

38    Secondly, and relatedly, CL gave evidence that he and his wife were consulting the market more broadly in connection with their refinance (which was not a standard loan refinance); they were not limiting themselves to whatever Mr Weiss could arrange. Dreamstreet’s submission that it would have been incentivised to pass on some of its commission to CL and YL in order to present them with the best available deal is entirely speculative.

39    Thirdly, and importantly, it was not in dispute commissions were paid when loans were drawn down, not when they were only approved and available to be drawn down. Part ($2.6 million) of the loan of CL and YL was refinanced through Financepath in mid-late October 2020 by Bendigo and Adelaide Bank. That was four and a half months after Mr Weiss commenced his employment with Financepath. CL had approached Mr Weiss about refinancing in June 2020. Accordingly, had Mr Weiss served out his notice period with Dreamstreet, no refinance would have been finalised, let alone drawn down, by the time Mr Weiss’s notice period expired. While they remained with Dreamstreet even after some poor interactions with Mr Hronis, which caused YL to describe Mr Hronis as an “f-wit” and Dreamstreet as “no hopers” in WhatsApp messages in November 2019, CL gave evidence and was cross-examined on his affidavit, which included his statement that, in about June 2020, he said to Mr Weiss that he and his wife wanted nothing more to do with Dreamstreet. Even assuming that, as CL and YL were personal friends of Mr Weiss, they would have been willing to deal with Dreamstreet while he remained with Dreamstreet, I am not satisfied that there is a real prospect that they would have been willing to conclude a deal with Dreamstreet once Mr Weiss left (ie after the conclusion of the notional three month notice period). In addition, given Mr Weiss and CL were friends, in my view it is inconceivable that, even if serving out a notice period, Mr Weiss would not have told CL he was leaving Dreamstreet. That would only have cemented CL and YL’s unwillingness to deal with Dreamstreet.

40    Fourthly, any trail commissions would have been payable only on the outstanding balance of the loan, and CL and YL had “very substantial” funds in their offset account. Dreamstreet has also not established the amount of any trail commissions it could (theoretically) have received.

41    In relation to CB and TC, Dreamstreet’s submissions contended that its loss is to be calculated by reference to the foregone opportunity to apply delayed commission (which, owing to a delay Dreamstreet attributed to Mr Weiss and Financepath, was received on 1 February 2021 instead of 1 January 2021) to alternative uses such as paying down its debt. Dreamstreet claimed nominal damages of $100.

42    I am satisfied that (again assuming that, contrary to my findings, Mr Weiss did breach cl 5(d) of the Weiss SA) the CB and TC loan would have been ready to be drawn down in time for Dreamstreet to receive its commission from 1 January 2021 had Mr Weiss been serving out a notice period with Dreamstreet. The upfront commission was $5,059.70. Dreamstreet did not put on evidence of the amount of its trail commissions, save to state that they began to be received from February 2021. On that hypothesis, Dreamstreet would be entitled to a nominal amount in respect of its loss of the use of those funds. While there is no uniformity in the amount awarded as nominal damages — the cases reveal examples where $1, $10, or $100 has been ordered — I consider that the amount of $100 is a reasonable figure in the circumstances of this case. That is the amount sought by Dreamstreet as nominal damages.

Alleged breach of exclusive service obligation: cl 2(c)(i) of the Weiss SA

43    Dreamstreet alleged Mr Weiss breached cl 2(c)(i) of the Weiss SA as his employment with Financepath commenced on 1 June 2020, prior to the termination of his consultancy with Dreamstreet on 11 June 2020.

44    Clause 2(c)(i) of the Weiss SA provided that:

The parties acknowledge and agree that;

(i)     the Consultant will provide the Services on an exclusive basis to Customers with respect to the Company’s business under the Company’s Australian Credit License. During the currency of this Agreement the Consultant shall not be an authorised credit representative under other person’s Australian Credit Licence without the prior written approval of the Company, which the Company may withhold in its absolute discretion …

45    Mr Weiss signed his employment contract with Financepath on 19 May 2020 and commenced his employment on 1 June 2020. Mr Weiss’s engagement with Dreamstreet terminated on 11 June 2020, although, as referred to above, the parties were in dispute about aspects of how that came about.

46    Mr Weiss did not commence serving Financepath customers until at least after 12 June 2020; he was completing his induction and “shadowing” Mr Attard of Financepath for about two to three weeks and only started seeing customers in the second or third week of June 2020, according to Mr Attard, who also explained that the standard induction of one month was shortened in Mr Weiss’s case given his experience in the industry.

47    In my view, Mr Weiss breached cl 2(c)(i) of the Weiss SA by taking up a position as an employee of Financepath on 1 June 2020. Once he was an employee of Financepath, Mr Weiss was not providing services “on an exclusive basis to Customers” (as defined in the Weiss SA) with respect to Dreamstreet’s business.

48    Dreamstreet has not proved that it suffered any loss caused by this breach. As noted, Mr Weiss was not serving Financepath customers during the period between 1 and 11 June 2020. Dreamstreet has also not asserted, let alone proved, that it suffered loss by reason of Mr Weiss being busy with his Financepath induction between 1 and 11 June 2020, rather than working to secure loans on its behalf. As Mr Weiss was paid on a commission-only basis by Dreamstreet (after an initial period when he was on a repayable retainer), Dreamstreet also did not suffer any loss arising from making payments to Mr Weiss when he was otherwise busy with his Financepath induction. Dreamstreet did not seek an award of nominal damages in respect of this breach.

Alleged breach of confidentiality obligations arising from the downloads: cll 5 and 7 of the Weiss SA

49    At this point, it is necessary to say something more about the CRM and the downloads Mr Weiss made from Dreamstreet’s CRM. Dreamstreet operated a CRM, which contained records of its customers, including those with current loans, those with past loans, and potential customers who had not yet taken out a loan but were “leads” with whom Dreamstreet had dealings. Mr Hronis said that the CRM contained records for some 35,000 customers.

50    There was evidence to the general effect that the access of consultants to parts of the CRM was determined by reference to their roles, with consultants having access to the records concerning the customers in respect of loans on which they were, or had, worked.

51    Mr Weiss made three downloads: two downloads were made on 11 May 2020, and one was made on 11 June 2020. The two downloads made on 11 May 2020 are referred to as the Second and Third Downloads, and the download made on 11 June 2020 is referred to as the First Download. The parties only discovered that in fact the First Download was made after the Second and Third Downloads after naming conventions were established. For consistency, I have retained the parties’ naming convention.

52    Mr Weiss did not dispute making the downloads from the CRM. Mr Weiss made each of the downloads before his consultancy with Dreamstreet ended (although he made one of them on 11 June 2020, the last day of his consultancy). At the time Mr Weiss made the downloads, Dreamstreet was not aware that the downloads had been made. Dreamstreet discovered that Mr Weiss had made the downloads when, on 16 September 2020, it asked Connective Broker Services Pty Ltd (Connective) (the company providing the CRM system) to interrogate whether Mr Weiss had made any downloads from the CRM. Dreamstreet discovered matters mentioned below about where the downloads were stored on Mr Weiss’s devices when an ex parte search order was executed on 25 September 2020.

The Second Download

53    Of the two downloads Mr Weiss made from Dreamstreet’s CRM on 11 May 2020, the first was an Excel spreadsheet Mr Weiss downloaded with details for the Dreamstreet customers associated with 96 loans (ie the Second Download). The Second Download contained their contact details and loan amounts as well as the dates on which the customers’ loans settled. The customers whose details were recorded in the Second Download were all customers whose loan applications and/or loans had been managed by Mr Weiss while providing services to Dreamstreet, and which loans had settled by 11 May 2020. It did not contain details of other customers with whom Mr Weiss had had dealings while at Dreamstreet, including those whose loan applications were in train or approved, but which had not yet settled by 11 May 2020.

54    The data in the Second Download was organised by columns with the following headings: transaction name [being the customers’ names], amount, status [all settled], lender, date settled, total security, lead source, campaign [all blank], salutations, first name(s), last name(s), full name(s), email(s), mobile, mailing address, home address, advisor, admin, internal reference, status notes [almost all of which referred to meetings with Mr Weiss], next action, created on, company, transaction type [purchase, refinance, variation, top up or pre-approval], categories, interest only expiry [all blank], fixed-rate expiry [all blank], finance due date [all blank], deposit due date [all blank], supervisor [all Mr Weiss], and “days” [with a number recorded against each entry].

55    Dreamstreet pleaded, and Mr Weiss admitted, that he emailed the Second Download from his Dreamstreet email address to his personal Gmail email address on 11 May 2020. However, the copy of the 11 May 2020 email in evidence was followed by a copy of the Third Download (not the Second Download), perhaps due to an error in the compilation of the annexure to the relevant affidavit of Mr Hronis.

56    On 17 September 2020, Mr Weiss opened a copy of the Second Download on his Financepath laptop. Mr Weiss’s evidence was that he opened the file at a time when he was consulting lawyers about issuing a letter of demand to Dreamstreet in respect of unpaid commissions. A copy of the Second Download was located on Mr Weiss’s work laptop (issued by Financepath) located at his house when the ex parte search order was executed on 25 September 2020.

The Third Download

57    The second download made on 11 May 2020 was a spreadsheet with customer information regarding Dreamstreet loans with “self-generated referral” recorded in the lead source column, and with Mr Weiss recorded in the supervisor column (ie the Third Download). Under the Weiss SA, “leads” were either “Company Lead[s]” — being leads generated or introduced by Dreamstreet to the consultant — or “Consultant Lead[s]” — being leads generated or introduced by the consultant. Consultants were entitled to upfront and trail commissions on loans settled in respect of Consultant Leads, but were only entitled to upfront commissions for loans settled in respect of Company Leads.

58    Six loans were recorded in the Third Download with information organised by the following column headings: transaction name [being the customers’ name(s)], amount, status [all “settled”], lender, date settled, total security, lead source [all “self generated referral”], campaign [all blank], salutations, first name(s), last name(s), full name(s), email(s), mobile, mailing address, home address, advisor, admin, internal reference [all blank], status notes [all of which referred to Mr Weiss], next action [all of which recorded dates between June and late August 2020], created on, company [all of which recorded Mr Weiss], transaction type [all purchase], categories, interest only expiry [all blank], fixed-rate expiry [all blank], finance due date [all blank], deposit due date [all blank], supervisor [all Mr Weiss], and “days” [with a number recorded against each entry].

59    Mr Weiss admitted that he emailed the Third Download, together with a soft copy of Dreamstreet letterhead, from his Dreamstreet email address to his personal Gmail email address on 11 June 2020.

The First Download

60    At 11.23 am on 11 June 2020, shortly before the meeting Mr Weiss had arranged with Mr Hronis, Mr Weiss made another download from Dreamstreet’s CRM. That download comprised the “Person Records” of 459 of Dreamstreet’s customers at that date. That download represented all the Person Records within Dreamstreet’s CRM to which Mr Weiss had access. Mr Hronis’s evidence was that Mr Weiss was the relationship manager for only 35 of the listed customers and that Mr Weiss had had contact with 126 of the listed customers in the previous 12 months. Mr Hronis came to this view by reviewing the First Download (which recorded the relationship manager for some of the customers contained in the download) and (as he claimed) checking Dreamstreet’s records. Mr Hronis did not explain which records he checked in order to contend that Mr Weiss had only had contact with 126 of the listed customers. Mr Weiss’s evidence was that at least 400 of the customers were leads sent to him by the Dreamstreet call centre, or customers that he spoke with, held a meeting with, or completed an application for. Mr Weiss’s evidence was that the balance (being names he did not recall) were likely the partners of those with whom Mr Weiss had had dealings. As is clear from the documentary evidence, the CRM did record the personal details of partners. In any event, for reasons which will become clear, nothing turns on this divergence in the evidence.

61    The information recorded in the First Download was organised alphabetically by surname and contained the following columns, not all of which were completed for every customer mentioned: title, first name, last name, salutation, home phone number, mobile phone number, email, mailing address, home address, date of birth, company, occupation, job title, annual income, ABN, relationship manager, further email addresses, addresses, and a “date created” column.

62    A copy of the First Download was located on Mr Weiss’s Chromebook during the execution of the ex parte search order. Dreamstreet did not issue any company devices — laptops, tablets or mobile phones — to Mr Weiss. Mr Weiss used the Chromebook, which was his own device, for work purposes while he was with Dreamstreet. When he moved to Financepath and was issued a work laptop, Mr Weiss gave the Chromebook to his children to use for games and entertainment.

63    Mr Weiss’s evidence was that, prior to the commencement of these proceedings, he had not looked at the First Download again.

Dreamstreet’s claims and Mr Weiss’s response

64    In its closing submissions, Dreamstreet accepted that Mr Weiss was permitted to use the information contained in the Second and Third Downloads to prepare his resignation email. Dreamstreet did not press a claim that Mr Weiss breached the Weiss SA by making the Second and Third Downloads (if a distinction is to be drawn between making those downloads and using the information contained in them).

65    However, Dreamstreet submitted in closing that Mr Weiss breached the “Weiss Confidentiality Obligations” by:

(a)    making the First Download;

(b)    retaining the First, Second and Third Downloads after 11 June 2020 (in breach of cll 5(e)(ii) and 7(a)(viii) of the Weiss SA);

(c)    emailing the Second Download from his Dreamstreet email account to his personal Gmail email account (in breach of cll 7(a)(ii) and (iv) of the Weiss SA); and

(d)    downloading and opening the Second Download on his Financepath computer on 17 September 2020 (in breach of cll 7(a)(ii) and (iv) of the Weiss SA).

66    While Dreamstreet submitted in closing that Mr Weiss emailed the Second Download to himself on 11 June 2020, its plea was that Mr Weiss emailed the Third Download on that day, together with a blank Dreamstreet letterhead. I will proceed on the basis that the reference to the Second Download in Dreamstreet’s submissions was an error, and it intended to refer to the Third Download.

67    Mr Weiss’s position (as articulated in closing submissions) was as follows. First, Mr Weiss disputed Mr Hronis’s claim that the RCTIs generated by Dreamstreet were sufficient for Mr Weiss to keep a record of his entitlements after his consultancy with Dreamstreet ended. He relied on Mr Hronis’s admission in cross-examination that the RCTIs did not reveal all the necessary information, but would have to be reviewed alongside other documentation. Mr Weiss also highlighted inaccuracies in the RCTIs. That submission was essentially responsive to a point taken by Dreamstreet through Mr Hronis’s affidavits, but not pressed by Dreamstreet in closing. As noted, Dreamstreet accepted in closing that it was within the bounds of the Weiss SA for Mr Weiss to make and use the information in the Second and Third Downloads to prepare his resignation email, which contained various financial commission-related claims.

68    The second submission Mr Weiss made in closing was that the downloads were made in accordance with cl 5(e)(iii) of the Weiss SA, which required him to issue a final tax invoice in respect of amounts owing to him for completed transactions prior to termination of the Weiss SA.

69    The third submission Mr Weiss made was that it was reasonable for him to make and retain the downloads to have a record of the loans that he had either settled or was in the process of settling, to provide clarity on his remuneration entitlements, to assist him in pursuing those entitlements, and to have a record of all such loans as he was subject to clawback for up to four years after his resignation. Mr Weiss submitted that, in order to calculate clawback rates, he would have needed the following information: loan amount, lender, lead source and date of settlement.

70    The fourth submission Mr Weiss made was that he would have required “the information within the downloads” to pursue other unpaid or incorrectly paid commissions, which he illustrated by pointing to inaccuracies in the RCTIs in relation to eight loans.

71    Mr Weiss did not distinguish between the three downloads in making these submissions. Accordingly, the Court asked him in oral closing submissions to explain, by reference to the evidence he had earlier given, why he needed the First Download specifically, given the information contained in the Second and Third Downloads, which recorded loans which had settled at the time he made those downloads on 11 May 2020.

72    The points Mr Weiss made were as follows: the Second Download would not have included loans that had not yet settled when the Second Download was made, whereas Mr Weiss wanted a general record of the customers he had seen in order to “fight for [his] entitlements” (which he thought extended to commissions for loans he had worked on even if they had not yet settled when he left Dreamstreet), as well as to more generally equip him to demonstrate his industriousness in dealing with customers in a dispute he anticipated with Mr Hronis. It should be noted that it was Mr Weiss’s evidence that his understanding was that consultants who had left Dreamstreet had not been paid their proper commission entitlements and so he wished to have the records constituted by the downloads, not only to frame his claims for commission (as he did in his resignation email), but also to pursue his claims.

73    In relation to his subsequent dealing with the Second Download, Mr Weiss relied on the fact (to which he had deposed) that the only time he viewed the Second Download was on 17 September 2020, when he looked at it for the purpose of having a conversation with Pivot Legal about drafting a letter of demand to Dreamstreet in respect of monies owed to him.

74    Mr Weiss’s submissions as to his purpose in making and retaining the three downloads were consistent with the evidence he gave.

Mr Weiss’s evidence about making the downloads

75    After an initial period during which Mr Weiss was paid a refundable retainer, he was paid commissions monthly in arrears, usually around the 12th day of the month. Once on the monthly commission-based arrangement, Mr Weiss would be sent an RCTI by Dreamstreet itemising the payments being made to him, and (in some instances) deductions made by Dreamstreet.

76    In around April 2020, Mr Weiss received a phone call from a recruiter, who told him there was an opportunity to work for Financepath. Mr Weiss’s evidence was that he was dissatisfied with the work he was doing for Dreamstreet, and that this dissatisfaction stemmed from Dreamstreet withholding commissions Mr Weiss considered he was owed and wrongly deducting money from payments made to him. When he started considering leaving Dreamstreet, Mr Weiss was concerned that he did not have a clear record of the commissions he was entitled to and the work that he had done. He understood, rightly or wrongly, that others who had left Dreamstreet did not receive the commissions they were entitled to after they told Dreamstreet they were leaving.

77    Mr Weiss was conscious that the records of the work he had done for Dreamstreet were contained in the CRM and he did not have a separate record. Mr Weiss wanted to retain a record so that he would be able to determine what amounts were owing to him. Mr Weiss noted that there was an option to “export” records in the CRM system and used that option to make the Second Download, containing records of the 96 customers with settled loans. At the time that he made the Second Download, Mr Weiss thought that he would be able to use that list, together with his recollection of the payments he had received, to determine what commissions were still outstanding. He did not want to tell Dreamstreet he was leaving until he received his May commission payment.

78    After he signed the employment agreement with Financepath, Mr Weiss took a two week break from work with Dreamstreet and did not take any new leads from Dreamstreet during that time, but continued to assist customers that had made loan applications to get to settlement.

79    In the days before and on 11 June 2020, Mr Weiss began to draft his resignation email to Dreamstreet. In the morning of 11 June 2020, Mr Weiss received his payment from Dreamstreet in respect of May 2020 and also received an RCTI for that month. Once he had received his May commission payment, Mr Weiss proceeded to finalise the draft email he had prepared to Dreamstreet advising of his resignation and detailing the monies he claimed were owed to him.

80    The Second and Third Downloads did not include loans settled in May 2020 and loans that had not yet settled. Mr Weiss said he wanted that information to prepare his resignation email, so he made the First Download on 11 June 2020. He intended to capture all customers whose loans he had worked on, which information he also wanted as he was also of the view that he might end up in a dispute with Dreamstreet about commissions owed to him and he wanted to have a record of the full list of customers he had had dealings with during his time at Dreamstreet so that he had a record of the number of appointments and work he had taken on. Mr Weiss thought he might need to rely on such records if his request for payment of his commissions was ignored.

81    In his resignation email, Mr Weiss stated that he expected to be paid his usual rates of commission for five loans that were near settlement, and one that had settled a few days prior, on 5 June 2020. These loans were not included in the Second or Third Downloads as they were not settled as at 11 May 2020. While the names of these customers appear in the First Download, the details about the loans recorded in the resignation email do not appear in the First Download, which only recorded personal details about the customers, but did not detail their loans.

82    Mr Weiss’s resignation letter also included a list of customers in respect of whom he was receiving trail commissions at the time, the amounts of those loans, the rate of trail commission and the monthly dollar amount of the trail commissions.

83    The third section of Mr Weiss’s resignation email detailed trail commissions to which Mr Weiss said he was entitled, but had not been paid. There were five loans on this list, and the email specified the customer name, the loan amount, when it was settled, the rate of trail commission claimed, the amount of trail commission due and the number of months for which it was due. Apart from the trail commission details, these details appear in the Second and Third Downloads.

84    The fourth, and final, part of Mr Weiss’s resignation email contested the deduction of $4,400 from his commissions, said to be deducted in relation to the customers AM and BM. The deductions were referred to in an RCTI, not in any of the three downloads.

Relevant clauses of the Weiss SA

85    Mr Weiss’s justifications for making the downloads were, in summary, that he was justified in making them in order to calculate and make his final demands for payment, and to retain a record of his work in anticipation of potential future disputes with Dreamstreet.

86    Pursuant to cl 5(e) of the Weiss SA:

(e)     On termination:

(i)     the Consultant must stop acting as an authorised credit representative of the Company and must stop providing the Services;

(ii)     the Consultant must return all Confidential to the Company; and

(iii)     the Consultant must issue a final Tax Invoice with respect to amounts owing to the Consultant for completed transactions prior to termination;

(iv)     subject to Clause 5(e)(v), the Company must pay the Consultant all outstanding amounts within 20 Business Days of termination, unless the amounts are in dispute; and

(v)     If any monies were paid by the Company under clause 4 [which concerned marketing], the Consultant must immediately refund the Company any monies paid or, at the Company’s option, the Company may set off such monies, and any other monies owing by the Consultant to the Company on any account whatsoever, against any outstanding amounts owing by the Company to the Consultant.

87    Although cl 5(e)(ii) referred to the return of “Confidential”, but omitted the word “Information”, it clearly referred to the return of Confidential Information and no submission to the contrary was made. I will construe cl 5(e)(ii) on the basis that it concerned the return of Confidential Information.

88    Pursuant to cl 7 of the Weiss SA:

(a)    The Recipient:

(i)     must keep the Confidential Information of the Discloser confidential;

(ii)     may use the Confidential Information of the Discloser but only in relation to this Agreement;

(iii)     may disclose the Confidential Information of the Discloser:

(A)     to enable it to exercise its rights or perform its obligations under this Agreement but only to its personnel to the extent that they have a need to know and who have, before disclosure, been directed and have undertaken to comply with this clause;

(B)     for the purposes of obtaining advice or professional services, on a confidential basis, from professional advisors including lawyers, accountants, auditors and others and insurers;

(C)     to the extent necessary or desirable for the purposes of mediation on a confidential basis;

(D)     to the extent necessary to enforce any determination of the mediator;

(E)     if the disclosure is compelled or required by law, provided that the Recipient:

(1)     where practicable, provides the Discloser with notice of the details of the proposed disclosure, as soon as practicable and prior to the disclosure;

(2)     provides any assistance reasonably required by the Discloser to protect the confidentiality of that information;

(3)     notifies the third person that the information is confidential information of the Discloser; and

(4)     requires the third person, where practicable, to keep the information confidential;

(iv)     must not copy the Confidential Information of the Discloser or any part of it other than as strictly necessary for the purposes of this Agreement;

(v)     must implement security practices against any unauthorised copying, use, disclosure (whether that disclosure is oral, in writing or in any other form), access, damage or destruction;

(vi)     must immediately notify the Discloser if the Recipient suspects or becomes aware of any unauthorised copying, use, or disclosure in any form of the Confidential Information of the Discloser;

(vii)     must comply with any reasonable direction of the Discloser in relation to the Confidential Information of the Discloser or personal information of the Customer; and

(viii)     return all Confidential Information of the Discloser to the Discloser on demand and on termination of this Agreement.

(b)     The Recipient’s obligations under this clause continue indefinitely in relation to Confidential Information of the Discloser and personal information of the Customers, even if that Confidential Information is returned to the Discloser or destroyed, or this Agreement expires or is terminated.

(c)     The Consultant must protect the privacy of Customers and any personal information disclosed to the Consultant as part of the Consultant providing the Services. The Consultant must not use any personal information of the Customer for any other purpose except for the purpose of providing the Services.

(d)     The Consultant must not store any personal information of the Customer on its systems except as required under this Agreement. Any information stored at the Consultant’s computer system must be protected from any unauthorised use.

89    The term “Discloser” was defined as a “person who discloses Confidential Information”, the term “Recipient” was defined as a “person who received Confidential Information”, and the “Confidential Information” was defined in a way that is apt to cover both company information and personal information of customers and prospective customers:

“Confidential Information” means information concerning the organisation, business, finances, clients, Customer information as disclosed in the application to the Company, suppliers, employees, affairs, transactions, trade secrets, operations, Intellectual Property, processes or dealings of either party which is not in the public domain or created independently by a party not through a breach of any obligation of confidence.

90    The Weiss SA contained terms that anticipated that (at least) financial matters would not necessarily be finalised the moment the agreement terminated, and that disputes may persist beyond the termination date. For example, cl 5(e)(iv) provided that the Company must pay the final invoice to the Consultant unless amounts are in dispute. Clause 9 then prescribed a dispute resolution procedure, and cll 7(a)(iii)(B)–(D) permitted the use of Confidential Information for the purposes of obtaining legal advice or services, and for the purposes of mediation and to enforce any determination of the mediator (which clause rather overlooks the nature of mediation). Clause 7(a)(iv) also only prohibited copying the Confidential Information “other than as strictly necessary for the purposes of this Agreement”. Another part of cl 7 also recognised the potential use by Consultants of the personal information of Customers “for the purpose of providing the Services”.

91    These various clauses recognised that Mr Weiss may have needed to use Confidential Information (which may include information of Customers) after the termination of the Weiss SA, and permitted that to occur. They stood alongside other clauses, which — at least if read literally and in isolation from other clauses — apparently created more absolute obligations. In particular, cl 5(e) provided that the Consultant is to return all Confidential Information to the Company on termination, and cl 7(a)(viii) required that the Consultant “return all Confidential Information of the Discloser to the Discloser on demand and on termination of this Agreement”.

92    The tension between the clauses which authorised retention and use of Confidential Information for purposes properly connected with the Weiss SA and clauses which, on their face, appeared to require immediate return of Confidential Information reinforce, in my view, the importance of reading specific clauses in the context of the agreement as a whole.

93    The agreement as a whole provides important context. The agreement was for the provision of services by Mr Weiss in return for reward in the form of commission payments. For self-generated leads, Mr Weiss was to be entitled to trail commissions as well as upfront commissions. Mr Weiss had an interest in the information concerning settled self-generated loans that lasted for as long as the trail commissions lasted. Further, and given that Mr Weiss remained subject to “clawback” exposure for up to four years following termination of the agreement, it cannot be said that, once upfront commissions were paid, Mr Weiss had no ongoing need for information concerning settled loans that concerned his entitlements under the Weiss SA.

94    Accordingly, in my view, approached objectively, the agreement that the parties to the Weiss SA have made was one which acknowledged Dreamstreet’s interest in protecting the confidentiality of information relating to its business operations, including information about customers, but also permitted Mr Weiss, as a Consultant, to have access to, to use and to retain, Confidential Information, where that use and retention was tied to the parties’ activities and obligations that were the subject of the Weiss SA. Those activities and obligations included the payment of commissions to Mr Weiss, the resolution of disputes between Mr Weiss and Dreamstreet, and the regulation of the clawback of commissions in the three or four years following the termination of the Weiss SA.

95    Accordingly, the question of whether or not Mr Weiss was authorised by the Weiss SA to make and retain each of the downloads turns on the content of each of the downloads, the purpose for which Mr Weiss made it, and the purpose for which it was retained.

Making and retaining the First Download

96    The First Download essentially contained personal details of customers. The First Download did not contain details of forthcoming settlements in respect of which Mr Weiss might claim an entitlement to commissions (even if he were entitled to commissions on loans that settled after he left Dreamstreet). As I have set out above, beyond the customer names appearing (along with over 400 others), the claims made by Mr Weiss in his resignation email for commissions in respect of loans which were due to settle shortly afterwards were not contained in the First Download. Whatever Mr Weiss consulted to frame those claims, the information was not in the First Download.

97    The other justification Mr Weiss gave was a general contention that he wanted to have a record of all the customers he had worked with in anticipation of the potential for a dispute with Dreamstreet. While such a desire might be understandable given Mr Weiss’s perception of the likelihood that Dreamstreet would not pay his commissions once he left, there was nothing in the First Download that would have assisted Mr Weiss in prosecuting claims for commissions, or resisting claims for clawback. As I have already noted, the First Download was a record of customer names and personal details (including contact details, occupation and income records). Under the Weiss SA, Mr Weiss was entitled to upfront commissions for settled loans, and trail commissions for settled loans where he was the source of the lead. He had no entitlement to commissions for generally having worked hard or having seen lots of customers.

98    There is no dispute that the First Download contains Confidential Information. Mr Weiss did not make or use the Confidential Information in the First Download in relation to the Weiss SA or for purposes of providing services to the customers. It follows that Mr Weiss made the First Download in breach of cll 7(a)(ii) and 7(c). As making the First Download constituted making a copy of Confidential Information, Mr Weiss breached cl 7(a)(iv) by copying the Confidential Information contained in the First Download for purposes that were not related to the Weiss SA. The clauses just mentioned are those raised by Dreamstreet in its closing submissions, noting that its further amended statement of claim (FASOC) was unclear as to which exact clauses it contended Mr Weiss breached in relation to each download, and its submissions employed the term “Weiss Confidentiality Obligations”, which is not defined in Dreamstreet’s submissions, or adequately defined in the FASOC.

99    As I have concluded that there was no justification under the Weiss SA for Mr Weiss to make the First Download, there was no justification for Mr Weiss to retain it. However, as I set out below, in my view, the obligation to “return” Confidential Information cannot be sensibly applied to the information Mr Weiss downloaded. Accordingly, Mr Weiss’s retention of the First Download does not constitute an additional breach of the Weiss SA. If I am wrong about that, then Mr Weiss’s retention of the First Download fell outside the positive permissions granted by the Weiss SA to which I have referred, and he would additionally have breached cll 5(e)(ii) and 7(a)(viii) by retaining the First Download after his consultancy with Dreamstreet ended.

Retaining the Second and Third Downloads after 11 June 2020

100    In my view, Mr Weiss did not breach the Weiss SA in retaining the Second and Third Downloads after 11 June 2020. As noted, Dreamstreet accepted that Mr Weiss was entitled to make and use those downloads in preparing his resignation email, which included his commission payment claims. Dreamstreet’s contention was that Mr Weiss breached cll 5(e)(ii) and 7(a)(viii) in retaining those two downloads.

101    I accept that the Second and Third Downloads also contained Confidential Information, that Dreamstreet was the Discloser of that information, and that Mr Weiss was the Recipient of that information.

102    As set out above, cll 5(e)(ii) and 7(a)(viii) imposed what, at first blush, might appear to be straightforward obligations on Mr Weiss to “return” Confidential Information after the termination of the Weiss SA.

103    The first basis upon which Dreamstreet’s claim that Mr Weiss breached cll 5(e)(ii) and 7(a)(viii) fails is that its recitation of the evidence relied on Mr Weiss’s failure to delete the downloads, when the clauses referred to the “return” of Confidential Information. Clauses 5(e)(ii) and 7(a)(viii) of the Weiss SA refer expressly to the “return” of Confidential Information in circumstances where other clauses of the Weiss SA addressed the concept of destruction separately. Clause 7(b) provided that Mr Weiss’s confidentiality obligations continue indefinitely “even if that Confidential Information is returned to the Discloser or destroyed” (emphasis added). The digital files constituting the Second and Third Downloads could be destroyed, but Dreamstreet did not articulate any basis upon which they could be “returned”, or returned without also being retained, in which case its original complaint would remain.

104    The second, and independent, basis upon which Dreamstreet’s claim fails is that I do not accept that, read in the full context of the Weiss SA, Mr Weiss was subject to an absolute obligation to return or destroy the Second and Third Downloads once he had crafted his resignation email laying out his claims. That is so even if (contrary to the above) “return” is construed to include “destroy”. As I have already detailed, in my view, on its proper construction, the Weiss SA authorised Mr Weiss to retain Confidential Information in some circumstances; the “return” obligations are not absolute or so to be read in isolation from the provisions authorising the use of Confidential Information including in circumstances which may post-date termination.

105    Clause 7(a)(ii) authorised Mr Weiss to use the Confidential Information “in relation to this Agreement”. The fundamental quid pro quo of the Weiss SA was that Dreamstreet would pay Mr Weiss commissions for settled loans. Accordingly, in my view, that positive permission extended to Mr Weiss using the Confidential Information in the Second and Third Downloads to ensure that he was paid commissions owing to him. Use “in relation to this Agreement” was a use that necessarily could extend beyond the day of termination of the Weiss SA. Other clauses of the Weiss SA also reinforce the view that that Confidential Information may be used and retained after the termination of the Weiss SA. Clause 5(e)(iv) of the Weiss SA anticipated that payment claims might not be settled on the day of termination, but might be paid some weeks later. Clause 7(a)(iii) also permitted Mr Weiss to use the Confidential Information in a wide range of circumstances which, by their nature, might post-date termination of the Weiss SA (eg, obtaining advice of lawyers, accountants and others, or for use in mediation). Both of these clauses, in my view, anticipated and acknowledged that Mr Weiss may require access to some Confidential Information which came into his possession in connection with performing his duties as a credit consultant for Dreamstreet, after the termination of the Weiss SA.

106    Accordingly, while I acknowledge that cll 5(e)(ii) and 7(a)(viii) were drafted in apparently absolute terms, and not expressly subject to any qualifications, in my view the only sensible construction of those clauses in the context of the Weiss SA as a whole is that Mr Weiss was obliged to “return” such Confidential Information as was no longer covered by any of the positive permissions granted to him to use that information “in relation to this Agreement” or in relation to the purposes specified in cl 7(a)(iii), which included enabling him to “exercise [his] rights … under this Agreement”. As I have said, those rights included the right to be paid commissions owing.

107    For completeness, I note that while Mr Weiss highlighted the cost incurred by Financepath in having a forensic expert remove data from his laptop as undermining Dreamstreet’s contention that he should have deleted the downloads from his devices, it remains the fact that Mr Weiss did not take any steps to delete them himself, even if a lay person’s deletion efforts might still leave digital footprints which an expert could discern or retrieve.

108    For the foregoing reasons, I have concluded that Mr Weiss did not breach the Weiss SA in retaining the Second and Third Downloads after 11 June 2020.

Mr Weiss emailing the Third Download to himself on 11 June 2020

109    Mr Weiss emailed the Third Download from his Dreamstreet email account to his personal email address at 12.07 pm on 11 June 2020. That, of course, was the day he notified Mr Hronis of his resignation and submitted his resignation email.

110    In my view, Mr Weiss emailing the Third Download with the six customer loans to himself on 11 June 2020 did not breach cl 5(e)(ii) or cl 7(a)(viii) for the same reasons as set out in relation to Mr Weiss having retained the Second and Third Downloads. Emailing a file to himself was but another way of retaining it.

Opening the Second Download on 17 September 2020

111    Mr Weiss opened and looked at the Second Download on 17 September 2020 in the context of consulting lawyers about having a letter of demand sent to Dreamstreet regarding unpaid commissions. By doing so, he downloaded the Second Download to his Financepath computer. I have already concluded that Mr Weiss was entitled to retain the Second Download. The specific use he made of it by consulting it on 17 September 2020 was permitted by cl 7(a)(iii)(A)–(B) of the Weiss SA.

Whether Dreamstreet suffered any loss or damage

112    Dreamstreet did not submit that it suffered any loss or damage from the breaches it contended arose from the making of the First Download, the retention of the three downloads, the emailing of the Third Download, and the use made of the Second Download on 17 September 2020. It sought nominal damages.

113    The only breach I have found in relation to the downloads arises from the making of the First Download. Dreamstreet will be awarded nominal damages of $100.

Retention and use of other customer information

114    When Mr Weiss was working for Dreamstreet, it did not issue him any computer or other device. Despite a satellite dispute concerning whether or not consultants were instructed or expected to copy and retain customer documents relating to loan applications (such as the applications themselves, serviceability analyses, copies of payslips and identification documents), Dreamstreet’s case in closing was that Mr Weiss breached cll 7(a)(ii) and 7(c) of the Weiss SA in using a small number of those documents in progressing loan applications for customers CB and TC and for customer CL.

115    The trove of documents stored on Mr Weiss’s computer was discovered by Dreamstreet when it executed the ex parte search order on 25 September 2020. In the case of CL, Dreamstreet relied on a digital record which indicated that Mr Weiss had emailed the “ID” of CL to Financepath. The email in question was not in evidence. In the case of another customer, CB, the actual email, containing a copy of CB’s driver’s licence and a Dreamstreet loan record was in evidence in relation to the CB and TC loan.

116    In my view, it is clear that the documents used by Mr Weiss (which I infer included a copy of an identification document for CL) were Confidential Information within the terms of the Weiss SA.

117    Mr Weiss breached cl 7(a)(ii) and cl 7(c) of the Weiss SA in using these documents in the execution of the work he undertook on behalf of Financepath. Although using copies of customers’ personal information to prosecute loan applications on their behalf may well have been blessed by the customers concerned — to avoid the irritation of being asked to supply again copies of documents already provided to Mr Weiss — those clauses of the Weiss SA are not limited to using Confidential Information of a Discloser without that person’s permission. Rather, cl 7(a)(ii) provided that Mr Weiss could only use the Confidential Information of the Discloser in relation to “this Agreement”. On no view could that extend to using the Confidential Information concerning the customers named in connection with his work for Financepath. Clause 7(c) obliged Mr Weiss to protect the privacy of customers and any personal information disclosed to him as part of providing the “Services” as defined. The clause provided that Mr Weiss was not to use any personal information of customers for any purpose other than providing the Services. Prosecuting loan applications for customers through Financepath fell outside the provision of Services under the Weiss SA.

118    Nevertheless, Dreamstreet accepted it did not suffer any loss or damage by virtue of these breaches and, by its closing submissions, sought only nominal damages. Dreamstreet will be awarded $100 as nominal damages.

Pleaded case in relation to notepads retained by Mr Weiss, and calendar invitations and a loan serviceability document saved on Mr Weiss’s Financepath computer

119    When the search order was executed at Mr Weiss’s home, it turned up some notepads that Mr Weiss used and which recorded his notes and jottings while he was working as a consultant to Dreamstreet. Mr Weiss had not turned over these notepads to Dreamstreet when he left. Dreamstreet’s pleaded case contended that the notepads contained Confidential Information for about 100 customers of Dreamstreet. Its pleaded case also contended that, by retaining these notepads and failing to return all Confidential Information to Dreamstreet, Mr Weiss breached the Weiss SA.

120    There was no evidence that Mr Weiss made any use of the information in these notepads after he left Dreamstreet. His evidence was that they were stored by him in a cupboard to which only he and his family had access, were retained as insurance (in case anyone questioned a loan he wrote and where it was industry practice to keep notes of customer conversations) and had not been returned by him to Dreamstreet as he considered they would not be of any use to Dreamstreet. Mr Weiss also gave evidence, which was not challenged, that some of the notepads were used only and specifically for Financepath (ie they did not contain information regarding his activities while with Dreamstreet).

121    Despite pleading these claims, nothing at all was said in support of them by Dreamstreet in its written or oral closing submissions. Dreamstreet made no attempt in submissions to identify where, in hundreds of pages of notepads, information that was Confidential Information was located. Accordingly, I consider that Dreamstreet has abandoned this claim. It is not encumbent on the Court to trawl through the notepads to see if Dreamstreet has a case which it has elected not to prosecute.

122    Dreamstreet also pleaded claims regarding calendar invitations in respect of Dreamstreet loans and a loan serviceability document for a Dreamstreet customer, both of which were identified on Mr Weiss’s Financepath computer when the search order was executed. Again, where Dreamstreet said nothing at all in support of these claims in its written or oral submissions, I consider Dreamstreet has abandoned them.

Alleged breach of contractual restraints: cl 13 of the Weiss SA

Clause 13 of the Weiss SA

123    Dreamstreet alleged that Mr Weiss breached the restraints imposed by cl 13 of the Weiss SA by his dealings with various Dreamstreet customers after the termination of the Weiss SA on 11 June 2020.

124    Clause 13 of the Weiss SA provided as follows (underlining added):

13.     RESTRICTED ACTIVITIES

(a)     The Consultant agrees that during the Restraint Period, and within the Restraint Area, the Consultant will not:

(i)     solicit, canvass, induce or encourage any person or entity who is an employee, director, consultant or contractor of the Company or any Group Company to terminate his or her employment or engagement with the Company or any Group Company;

(ii)     solicit, canvass, approach any person or entity who was during the term of this Agreement a client, customer or patron of the Company or any Group Company, with a view to establishing a relationship with or obtaining the custom of that person or entity in a business which carries on the business of a similar or related nature to the Company or any Group Company,

(iii)     interfere or seek to interfere, directly or indirectly, with the relationship between the Company or any Group Company and its clients, employees or suppliers;

(iv)     attempt to undertake or, directly or indirectly, assist, approach, induce, solicit or persuade any person or entity to undertake any of the above,

which are collectively and individually referred to as a “Restricted Activity”.

(b)     For the purposes of this clause 13, “Restraint Area” means:

(i)     100 kilometres (but if a court holds that too wide then);

(ii)     30 kilometres (and if a court also holds that too wide then);

(iii)     20 kilometres (and if a court also holds that too wide then);

(iv)     10 kilometres,

of the Company’s address as specified in this Agreement

(c)     For the purposes of this clause 13, “Restraint Period” means the following periods of time from the termination of this Agreement:

(i)     24 months (but if a court holds this to be too long then);

(ii)     12 months (and if a court also holds that too long then);

(iii)     9 moths [sic] (and if a court also holds that too long then);

(iv)     6 months, (and if a court also holds that too long then);

(v)     3 months.

(d)     The Consultant agrees that Clause 13(a) has effect as several separate and independent covenants and restraints consisting of each separate Restricted Activity set out in Clause 13(a) combined with each separate Restraint Period and of each such separate combination combined with each separate Restraint Area.

(e)     If any of the separate and independent covenants and restraints referred to in Clause 13(d) hereof is judged to go beyond what is reasonably necessary to protect the Company’s goodwill in the Company’s business, but would be judged reasonable and necessary if the Restraint Period and/or the Restraint Area were reduced, then the resulting clauses apply with the Restraint Period and/or the Restraint Area reduced by the minimum amount necessary to make such resulting clauses reasonable in the circumstances.

(f)    If any of the several separate and independent covenants and restraints referred to in Clause 13(d) hereof are or become invalid or unenforceable for any reason then than [sic] invalidity or enforceability will not affect the validity or enforceability of any of the other separate and independent covenants and restraints.

(g)     The Consultant acknowledges that prohibitions and restrictions contained in this Clause 13 are reasonable and necessary to protect the Company’s Intellectual Property, Confidential Information and interest and goodwill of the Company’s business.

125    The term “Group Company” was defined as “the Company or any related body corporate of the Company”.

126    The recitals (styled “Introduction”) stated that the Company “operates a mortgage broking business”. This is relevant to the ambit of cl 13(a)(ii) by which the restraint applied to engaging in the restrained conduct in “a business which carries on the business of a similar or related nature to the Company or any Group Company”. The Weiss SA did not list the companies which are “Group Companies”, nor did it identify the businesses in which they were engaged.

127    The Weiss SA defined the term “Customer” as “a customer of the Company or the Consultant who wishes to apply for credit through and with the assistance of the Company or the Consultant”, but cl 13 did not use that defined term. Clause 13(a)(ii) referred to “a client, customer [lower case] or patron of the Company or any Group Company” and cl 13(a)(iii) referred to the “relationship between the Company or any Group Company and its clients, employees or suppliers” (but made no mention of customers, Customers, or patrons).

128    The definition of “Confidential Information” referred to “information concerning the organisation, business, finances, clients, Customer information as disclosed … , suppliers, employees” etc. As such, it used both the undefined term “clients” and the defined term “Customer”. The definition of “Services” used the defined term “Customer” and “Client” (although there is no defined term “Client”).

129    It should also be noted that cl 13(a)(ii) referred to a “client, customer or patron of the Company or any Group Company” and, cl 13(a)(iii) then referred to interfering, directly or indirectly, with the relationship between the Company or any Group Company and its “clients, employees or suppliers” (but not, it appears a “customer” or “patron”).

130    On its face, the Weiss SA was poorly drafted and did not use defined terms in the way commonly found in written commercial contracts. As well as having referred to “clients” without making it clear how, if at all, “clients” differed from “Customers”, the Weiss SA also used “Client” on one occasion as if it were a defined term (which it is not). As Lord Neuberger (with whom Lord Sumption, Lord Hughes and Lord Hodge agreed) observed in Arnold v Britton [2015] AC 1619 at [18], the worse the drafting of a written agreement, the greater the ambit for construction of the contract; cf where clear and precise language is used and the court cannot, by construction, avoid what may appear to be capricious or unreasonable results (as discussed further below).

131    Other relevant features of the Weiss SA include the following:

(a)    the “Services” that the Weiss SA specified Mr Weiss was to provide were all tasks that led up to, but did not endure beyond, the arranging of a loan (ie, the specified Services did not extend beyond the arranging of the finance in question): cl 1.1;

(b)    the Weiss SA recognised that “the Company and the Consultant are independent businesses”: cl 2(c)(iii);

(c)    Mr Weiss was, after an initial period, to be remunerated wholly on a commission-basis: Services Schedule to the Weiss SA cl 2; and

(d)    commissions to which Mr Weiss was entitled depended on whether the settled loan was the product of a “Company Lead” or a “Consultant Lead”, recognising that consultants such as Mr Weiss may also bring leads to Dreamstreet (cf just pursuing leads generated by Dreamstreet): Services Schedule cl 2.3.

The parties’ contentions

132    The FASOC (at [8]) pleaded the content of the restraints in both cll 13(a)(ii) and (iii) (although mis-stating the terms of cl 13(a)(iii)), and pleaded a breach of cl 13 (FASOC at [35]) without specifying the sub-paragraph(s) concerned. The plea concerning Mr Weiss’s conduct was put in a rolled-up manner, sandwiching together the concepts in each sub-clause. The FASOC (at [25]) pleaded that Mr Weiss had “solicited, canvassed, approached, or interfered or sought to interfere, directly or indirectly, with the relationship between Dreamstreet and certain of its Customers in breach of the Weiss Restraints”. It was not clear why the conduct plea deployed the defined term “Customers”, which was not used in cl 13.

133    Dreamstreet identified two questions of construction. First, whether the phrase “client, customer or patron” extended to both “Company Lead” clients and “Consultant Lead” clients, and secondly, whether the phrase “solicit, canvass, approach” extended to accepting approaches from clients. It contended that the answer was “yes” to both questions of construction. Financepath — whose interest in the matter arose from the case brought against it for inducing breaches of contract by Mr Weiss — and Mr Weiss contended to the contrary on the first construction question. Neither Financepath nor Mr Weiss submitted that Dreamstreet’s approach to the second construction question was incorrect, but it was part of Mr Weiss’s case that the individuals in question contacted him and, on his evidence, he initially at least encouraged them to deal with Dreamstreet. Financepath also emphasised the latter point in its oral closing submissions.

134    Dreamstreet also contended that Mr Weiss breached the restraints, construed in the way it contended, by reason of his interactions with a number of individuals. I will return to its arguments on the questions of construction below.

135    Dreamstreet submitted that the restraints are enforceable, and relied on the reasoning of the New South Wales Court of Appeal in Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343 (Dargan), to which I return below. Financepath and Mr Weiss contended that no special circumstances exist to make the restraints enforceable. Dreamstreet submitted that Dargan was particularly instructive as the restraint clause considered in that case is substantially identical to cl 13(a)(ii).

136    Dreamstreet submitted that: the duration and area of the restraints (a maximum of 24 months and 100 kilometres) were reasonable given that the customers were located across the Melbourne metropolitan region, between four and 39 kilometres from Dreamstreet’s principal place of business; Dreamstreet incurred costs in processing loans and experienced significant losses when required to pay back its commissions to a lender; and the average term of a Dreamstreet customer’s loan was approximately four years. Financepath did not make any submissions that the duration or area of the restraints was excessive. Nor did Mr Weiss.

137    No submissions were made that the restraints were contrary to the public interest. Rather, the debate concerned whether the restraints went beyond what was reasonably necessary by reference to Dreamstreet’s legitimate interests.

Principles concerning the enforceability of restraints of trade

138    The principles concerning restraints of trade were addressed by the New South Wales Court of Appeal in circumstances that have some similarities to the present matter in Dargan. In Dargan, Gleeson JA (with whom Bathurst CJ and Beazley P agreed) summarised the overarching principles as follows (at [59], citations omitted).

At common law a restraint of trade is contrary to public policy and void unless justified by the special circumstances of the particular case. A restraint may be enforced if the restraint is reasonably necessary for the protection of the parties concerned and reasonable in the interests of the public.

139    The reasonableness of the restraint is to be judged having regard to the legitimate interests of the person in whose favour the restraint operates: Bridge v Deacons [1984] AC 705 at 714 (cited by the primary judge and referred to on appeal by the Full Court (Besanko, Jagot and Bromberg JJ) in Informax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298 (Informax) at [21]).

140    The interests of an employer in maintaining its connection with its customers and its confidential customer information against misappropriation by its employees or contractors is one such legitimate interest: Lindner v Murdock’s Garage (1950) 83 CLR 628 at 634 (Latham CJ, with whom Webb J agreed), 650 (Fullagar J) and 654 (Kitto J); see also Dargan at [123].

141    Other applicable and well-established principles are as follows (references are principally to the decision in Dargan, by reference to which the parties made their submissions):

(a)    the validity of a covenant in restraint of trade is to be judged at the date of its creation and not retrospectively: Dargan at [63]; Informax at [91];

(b)    generally a stricter and less favourable view is taken of covenants in restraint of trade between employer and employee than in commercial agreements, for reasons which include the inequality of bargaining power: Dargan at [67]–[68]; and

(c)    the principles concerning covenants in restraint of trade apply to relationships between contractor and principal: Dargan at [69].

142    The exercise of construing a restraint of trade clause is undertaken for the purpose of ascertaining the real meaning of the restraint, independently of the rules prescribing tests of reasonableness for the purpose of ascertaining the validity of a covenant in restraint of trade: Findex Group Ltd v McKay [2020] FCAFC 182 (Findex) at [76] (Markovic, Banks-Smith and Anderson JJ), citing Butt v Long (1953) 88 CLR 476 at 487 (Dixon CJ).

143    As to that task of construction, and the approach to be taken in determining whether the circumstances justify a restraint of trade, the Full Court in Findex summarised the principles as follows at [77]–[87]:

77.    The Court should approach the task of construction on the basis that the parties intended to produce a commercial result, and one which makes commercial sense: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 (Woodside Energy), [35]; Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; 261 CLR 544 (Ecosse Property), [17].

78.    A commercial contract is to be construed so as to avoid it making commercial nonsense or working commercial inconvenience: Woodside Energy, [35]; Zhu v Treasurer (NSW) [2004] HCA 56; 218 CLR 530, [83]; Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310, 313–314.

79.    Commercial contracts must be interpreted fairly and broadly, without being too astute or subtle in finding defects: Pan Foods Company Importers and Distributors Pty Ltd v Australia and New Zealand Banking [2000] HCA 20; 170 ALR 579, [14]; [Australian Broadcasting Commission v] Australasian Performing Right Association [Ltd (1973) 129 CLR 99], 109–110.

80.    A construction that avoids unreasonable results is to be preferred to one that does not, even though it may not be the most obvious, or the most grammatically accurate: Australasian Performing Right Association, 109–110.

81.    Determining the meaning of a contractual term normally requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165, [40] (Toll); Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 350; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 (Pacific Carriers), [22]; Woodside Energy, [35]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104 (Mount Bruce Mining), [47] and [49]–[50]; Ecosse Property, [17].

82.    Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency: Fitzgerald v Masters (1956) 95 CLR 420, 426–427.

83.    In deciding whether there are special circumstances justifying a restraint of trade, the Court should be wary of placing weight upon “improbable and extravagant contingencies as indicating the restraint to be unreasonable”: Adamson v NSW Rugby League Ltd (1991) 31 FCR 242, 286 per Gummow J citing Haynes v Doman [1899] 2 Ch 13, 26.

84.    Agreements in restraint of trade, like other agreements, must be construed with reference to the object sought to be attained by them. The object is the protection of one of the parties against rivalry in trade. Such agreements cannot be properly held to apply to cases which, although covered by the words of the agreement, cannot reasonably be supposed ever to have been contemplated by the parties, and which, on a rational view of the agreement, are excluded from its operation by falling, in truth, outside and not within its real scope: Haynes v Doman [1899] 2 Ch 13, 26.

85.    If a clause is valid in all ordinary circumstances which have been contemplated by the parties, it is equally valid notwithstanding that it might cover circumstances which are so ‘extravagant’, ‘fantastic’, ‘unlikely or improbable’ that they must have been entirely outside the contemplation of the parties: Home Counties Dairies Ltd v Skilton [1970] 1 WLR 526, 536 endorsed in Rentokil [Pty Ltd v Lee (1995) 66 SASR 301], 304 (Doyle CJ), 320–321 (Matheson J) and 339 (Debelle J). See also Marion White Ltd v Frances [1972] 1 WLR 1423; Littlewoods Organisation Ltd v Harris [1978] 1 All ER 1026; Clarke v Newland [1991] 1 All ER 397.

86.    The preferred approach is to have regard to the object and intent of the parties and read down a restraint of trade to give effect to that object and intent: Rentokil, 339; Koops Martin v Dean Reeves [2006] NSWSC 449, [40]; cf. Geraghty v Minter (1979) 142 CLR 177, 180.

87.     A construction which will preserve the validity of the contract is to be preferred to one which will make it void: Pearson v HRX Holdings Pty Ltd [2012] FCAFC 111; 205 FCR 187, [45].

144    The approach to construction outlined above does, however, have its limits. The court cannot, in effect, rewrite the parties’ contract. The court must also give effect to unambiguous words even if the result appears capricious or unreasonable: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109 (Gibbs J, as his Honour then was). As the Full Court observed in Findex (at [98]–[99]), although Gibbs J was dissenting, that aspect of his Honour’s judgment has been cited and applied in a number of cases.

145    Covenants which are in restraint of trade and which cannot be justified according to the above principles may, in some circumstances, be severed. In Just Group Ltd v Peck (2016) 344 ALR 162; [2016] VSCA 334, the Victorian Court of Appeal (Beach and Ferguson JJA and Riordan AJA) stated at [39], quoted by the Full Court in Findex at [147]:

If a restraint clause is “not really a single covenant but is in effect a combination of several distinct covenants”, some of which are too wide, the invalid covenants may be severed subject to the following conditions:

(a)    The impugned covenants must be capable of simply being removed – as if crossed out with a blue pen. A court can only remove words from a restraint clause; it cannot rewrite the restraint clause.

(b)    The restraint clause contains several distinct covenants, one of which is valid. The covenant to be severed must be an independent covenant capable of being removed without affecting the remaining part. “The only change should be to the sphere of operations of the clause”.

(c)    Whether it is based on the principle of uncertainty, or the public policy to protect employees, or that “it is for the parties to make contracts, not the courts”, courts have demonstrated reluctance to engage in “curial disentanglement” and sever the unenforceable parts of unreasonably wide restraint clauses if the clause is not a genuine attempt to establish reasonable protection for the legitimate interests of the employer. The following factors indicate that the restraint clauses of the latter kind are unreasonable:

(i)     If the restraint clauses include patently unjustifiable restraints such as might intimidate the employee.

(ii)    If the restraint clauses are in a standard form.

(ii)    If the variables are numerous and the combination of variables appear mechanical and indiscriminate.

However, the application of these considerations is subject to the court giving “appropriate attention to the intentions of the parties” objectively assessed at the time of the contract.

(internal quotations in original; citations omitted.)

146    As may be seen, when considering severance, the initial question is whether the restraint clause is, in substance, not a single covenant, but comprises a combination of distinct covenants.

Consideration

Proper construction of cl 13

147    In my view, cll 13(a)(ii) and (iii) did not exclude customers or leads that Mr Weiss brought to Dreamstreet. In other words, the restraints were not, on their proper construction, confined to clients, customers or patrons that had that status by reason of the initial contact having derived from a Company (cf Consultant) Lead.

148    The Weiss SA was, as I have noted more than once, badly drafted. It is difficult to discern any comprehensible pattern to where the defined term “Customer” was used, and where it was not. Accordingly, I do not consider the failure of cl 13 to use the defined term “Customer” suggests that an individual who came to Dreamstreet upon being introduced by Mr Weiss was not a “client” or a “client, customer or patron” of Dreamstreet. I also do not consider that the recognition that both Dreamstreet and Mr Weiss had “Customers”, and Mr Weiss also was operating a business, supports the construction for which Financepath and Mr Weiss contended.

149    The surer guide to what the parties, objectively, intended arises from considering cl 13 in the context of the Weiss SA as a whole. It is apparent from looking at the features of the commercial relationship thereby established that, once introduced (by either means), the hope and intention was that individuals would take out loans arranged through Dreamstreet. Upon that occurring, the individual was a “client, customer or patron” of Dreamstreet, both the company and Mr Weiss would share the upfront commissions (and trail commissions if Mr Weiss brought the individual to Dreamstreet) and would both be subject to the risk of “clawback” if the individual terminated their loan early and the lender sought repayment of the corresponding commission. In context, cl 13(a)(ii) sought to deal with the risk of individuals who have arranged loans through Dreamstreet — however their initial introduction came about — refinancing through another mortgage broking business, or taking out additional finance through a competitor. That risk is evident where Dreamstreet interacted with its customers through its consultants.

150    Accordingly, in my view, on its proper construction, cl 13(a)(ii) did not exclude clients, customers or patrons who were Consultant Leads.

151    My analysis in respect of cl 13(a)(iii) is the same. The word “clients” in cl 13(a)(iii) did not exclude persons who were Consultant Leads.

152    As the analysis of breach reveals, there is another aspect of cl 13(a)(iii) to which attention must be directed in construing the clause. Clause 13(a)(iii) prohibited interference with, inter alia, the “relationship between the Company … and its clients”. The prohibited interference is limited to interference with that relationship. The New South Wales Court of Appeal in Dargan considered a similarly worded clause. Clause 8.4 of the contract in that case provided that Mr Isaac was not to “[i]nterfere, or knowingly permit any person to interfere with the relationship between the Originator and its customers, Referrers, Credit Providers, Employees or suppliers”.

153    In Dargan, Gleeson JA (with whom Bathurst CJ and Beazley P agreed) construed cl 8.4 so that it did not apply to arranging new finance for persons who had “previously” engaged the first originator. Gleeson JA stated as follows (at [95], emphasis added):

The primary judge considered (at [255]) that the fact that Mr Isaac acted for persons on a new loan while at RAMS, not involving a refinance of a loan originated through Dargan, would nonetheless constitute interference with an existing relationship between Dargan and those persons. I respectfully disagree. A distinction is to be drawn between an existing client relationship with Dargan in respect of which the sub-originator interferes by arranging a refinance through another originator, and new finance originated for persons who had previously engaged Dargan to originate other finance.

154    As is apparent from the first instance judgment, the borrowers in question were existing clients of the plaintiff. On appeal, Gleeson JA rejected the primary judge’s conclusion below that the defendant would avoid infringing the restraint by arranging new loans, as distinct from the refinance of the existing loans those clients had on foot with the plaintiff: Dargan at [95]. As Gleeson JA construed the restraint, it did not apply to the arranging of new finance even where the client in question was a current client of the plaintiff: see Dargan at [35], [92]–[98].

155    I agree with the observation made in Dargan that a distinction is to be drawn between refinancing and arranging new finance. However, in my view, interfering with a “relationship” is not confined to arranging refinance but may, depending on the facts, extend to assisting a person with a new loan when that person remains a current customer. I do not consider that I am bound to the contrary view by Dargan. The contractual clauses in question are not identical (although they both hinge on interference with a relationship). It is clear from the authorities that, other than in respect of principles of construction, terms of art, terms of accepted custom or usage, or standard form contracts commonly used in a trade or industry, the construction placed by a court on words in one contract does not constitute a precedent for the construction of similar words in another contract between different parties: Milne v Sydney Corporation (1912) 14 CLR 54 at 70–71 (Isaacs J); Gibb-Maitland v The Perpetual Executors Trustee & Agency Co (WA) Ltd (1947) 74 CLR 579 at 586 (Rich J); Commonwealth v Chubb Security Australia Pty Ltd [2004] NSWCA 77 at [11] (Palmer J, with whom Handley and Beazley JJA agreed); Sir Kim Lewison and David Hughes, The Interpretation of Contracts in Australia (Lawbook Co, 2012) at [4.09]. In my view, on its proper construction, cl 13(a)(iii) is limited to persons who had loans on foot with Dreamstreet at the time the restraint commenced operation. I do not consider that a person who used to have a loan arranged through Dreamstreet can be said to have an extant “relationship” with Dreamstreet that might be the subject of interference.

156    The second question of construction raised by Dreamstreet concerns the expression “solicit, canvass, approach”. That expression was used in cl 13(a)(ii). Dreamstreet submitted as follows in support of its argument that the expression extended to circumstances in which a relevant individual approached the restrained employee or contractor and did not exclude from its ambit circumstances where the restrained person accepted and progressed an approach initially made by the customer or client:

41.     The interpretation of clauses containing words to the above effect has been consistent in the courts over the past 20 years. A long line of case law stemming from Barrett v Ecco Personnel Pty Ltd [1998] NSWCA 30 (Barrett) has held “solicit” in such clauses should not be construed in a mechanistic fashion, such as being limited to where the restrained former employee must approach the customer and not vice versa.

42.     In Hellman Insurance Brokers v Peterson [2003] NSWCA 242 (Hellman), the defendant had been an employee at an insurance broking business subject to a contract containing a restrictive covenant containing the following wording:

“The employee either must not during the duration of this Agreement or for a period of 12 months after the termination of this Agreement…

(i) canvass, solicit or endeavour to entice away from the Company or any related company … any person, firm or company who is or who has been during the 12 months preceding … a customer of the Company or any related company …” (emphasis added)

43.     The defendant had responsibility for a particular portfolio of clients. Various former clients contacted the defendant anxious to continue to place business with him and the court held that it was not determinative whether the former employee or client arranges the contact. Rather, whether solicitation occurs depends upon the substance of what passes between the former employee and client once they are in contact with each other [citing Hellman at [12]]. There is solicitation of a client by a former employee if the former employee in substance conveys the message that the former employee is willing to deal with the client and, by whatever means, encourages the client to do so [citing Hellman at [12]].

157    Mention should also be made of the decisions of Brereton J in Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449 (Koops Martin) and in IceTV v Ross [2007] NSWSC 635 (Ross).

158    Koops Martin concerned the actions of Mr Reeves, who had been employed as a financial planner at Koops Martin. After leaving Koops Martin and while working for another financial planning and advisory business, Mr Reeves was approached by about 30 former clients. He accepted instructions to perform financial planning and advisory work for a number of persons who were clients of Koops Martin during the 12 month restraint period. The restraint used the words “approach or entice or endeavour to entice away” and also restrained Mr Reeves from performing financial planning and advisory work for former clients. Justice Brereton rejected the argument that Mr Reeves breached the “approaching” or “enticing” elements of the restraint clause, reasoning as follows at [12]:

Accepting instructions to act for former clients who initiate contact with the departed employee is not within the concept of “solicitation” or “enticement”, which involve action initiated by the former employee, as distinct from responses to approaches from former customers.

159    What might have appeared to be a rather firm line was moderated in Ross. There, Brereton J referred at [46] to his decision in Koops Martin, and observed that, in that case, he had “rejected a submission that merely responding to initial approaches from a former client and following them up with interviews and obtaining authorities to act was ‘enticement’”. His Honour went on at [47] to accept that “who makes the initial contact is not decisive”, but also observed that:

not every positive response to an approach by a former client is solicitation of that client. As Barrett and Hellman show, the line is crossed where the former employee, in response to an approach by a customer, does not merely indicate a willingness to be engaged, but positively encourages the customer to engage him or her.

160    I accept that the expression “solicit, canvass, approach” — if approached as a composite — is not one which necessarily excludes circumstances in which the initial approach was made by the customer. If not treated as a composite expression, in my view the words “solicit” and “canvass” likewise do not exclude circumstances in which the initial approach was made by the customer, but the word “approach” necessarily conveys that Mr Weiss be the person doing the approaching (and not merely responding to an approach).

161    Accordingly, cl 13(a)(ii) was not, on its proper construction, restricted to circumstances in which Mr Weiss initiated contact with a “client, customer or patron”.

The enforceability of cl 13

162    The enforceability of cll 13(a)(ii) and (iii) is to be assessed based on the proper construction of those clauses. Accordingly, and as urged by Dreamstreet, they are construed on the basis that both clauses applied also to customers introduced by Mr Weiss, cl 13(a)(ii) applied even if Mr Weiss did not initiate contact with the individual, and there will be no interference in a relationship for the purposes of cl 13(a)(iii) where new finance was arranged (cf refinancing).

163    In my view, each of cll 13(a)(ii) and (iii) constituted a separate covenant. While they tended to be treated by the parties in argument in a rolled-up fashion, I will consider each separately.

164    In my view, the restraint imposed by cl 13(a)(ii) is not enforceable. In accordance with the authorities set out above, it is to be assessed at the time it was made, and not by reference to the actions of Mr Weiss that occurred after the termination of the Weiss SA, about which Dreamstreet takes issue.

165    The cl 13(a)(ii) prohibition extended to any individual who was a client, customer or patron of the Company or a Group Company at any point during the term of the Weiss SA. It was not confined to those who were current clients, customers or patrons at the time of termination of the Weiss SA (at which point the Restraint Period would start) or those with whom Mr Weiss had had dealings. Accordingly, the restraint applied in respect of any individual who fell into that category, even if that individual’s loan was no longer on foot, the person had no current dealings with Dreamstreet in respect of a possible new loan and Mr Weiss had never had anything to do with that person.

166    In these respects, the clause sought to protect Dreamstreet from mere competition, and not just unfair competition by which Mr Weiss might use and exploit his personal connection with the individual, built up through work on behalf of Dreamstreet, for his personal benefit or that of another employer or principal. Restraint clauses which seek to protect against mere competition, cf unfair competition, are not enforceable: Koops Martin at [30] (Brereton J); see also Tullett Prebon (Australia) Pty Ltd v Purcell (2008) 175 IR 414; [2008] NSWSC 852 at [47] (Brereton J), quoted in Dargan at [64]; I F Asia Pty Ltd v Galbally (2003) 59 IPR 43; [2003] VSC 192 (I F Asia) at [102] (Dodds-Streeton J). While Dreamstreet had a legitimate interest in being protected against Mr Weiss exploiting personal relationships he had developed with customers while working for Dreamstreet, cl 13(a)(ii) went well beyond the protection of that legitimate interest as the restraint was not limited to individuals with whom Mr Weiss had had any dealings.

167    Nor was the restraint limited to customers with loans on foot or loans that had terminated within some reasonable period of time before the commencement of the operation of the restraint (cf the similarly worded restraint in Dargan that only applied to customers in the 24 months prior to termination). In that regard, it is relevant to note that the Weiss SA was not an agreement for a fixed term and, at the time the contract was formed, it was possible that it would last for a number of years.

168    The prohibition extended to clients, customers or patrons not only of Dreamstreet but also of any “Group Company”. No justification was advanced for this extension. Nor did the Weiss SA make any provision for Mr Weiss to be advised which companies are Group Companies, let alone who the clients, customers or patrons of these un-named other companies were, and what their businesses were (see, eg, Dodds-Streeton J’s analysis of similar issues in I F Asia at [126]–[127]). The restraint was unreasonable on this basis as it restrained Mr Weiss from soliciting, canvassing or approaching an indeterminate and unknowable group of individuals. It is no answer to say that, before making contact with any potential future borrower, Mr Weiss should be expected to ask whether that person had ever been a client, customer or patron of any related body corporate of Dreamstreet.

169    Finally, the restraint is also unreasonable as it extends to persons with whom Mr Weiss had no contact in circumstances where no provision was made for Mr Weiss to be informed of who comprised the body of individuals he must not contact after the Weiss SA was terminated. The Weiss SA made no provision for him to be informed, eg, of who other consultants had dealt with.

170    The similar clause considered by the New South Wales Court of Appeal in Dargan lacks most of the features I have just noted, and the decision does not provide any support for Dreamstreet’s submission that cl 13(a)(iii) is enforceable. In addition, in Dargan, the access of Mr Isaac to the entirety of the CRM was a relevant factor, whereas I was not presented with any evidence, or submissions, concerning the extent of access to the CRM that it was anticipated (at the time the Weiss SA was formed) that Mr Weiss would have.

171    It was not suggested that the objectionable aspects of cl 13(a)(ii) could be excised pursuant to the principles concerning severance. In my view, they clearly cannot. Clause 13(a)(ii) contained a single covenant, not multiple covenants. Any attempt to limit the clause to excise the unreasonable and excessive elements I have identified would involve re-writing the clause. That is not a task the court can or should undertake.

172    The restraint imposed by cl 13(a)(iii) was more limited. As I have construed it, it (relevantly) captured only customers with whom Dreamstreet had a current loan or negotiations on foot at the time of the termination of the Weiss SA (being the point at which the Restraint Period would commence). As such, it does not suffer from the first vice identified above in relation to cl 13(a)(ii). However, it does still suffer from the other vices. That is the position as the restraint went beyond the protection of Dreamstreet’s legitimate business interests in preventing unfair competition by Mr Weiss, but sought to impose on Mr Weiss obligations that went beyond that interest and which were also not practically capable of fulfilment by him in the absence of any provision for information to be provided to him that would identify all individuals he was not to contact (which group was not confined to those with whom he had dealings) or who the customers of Dreamstreet’s related bodies corporate were. For reasons already canvassed, it is no answer to say that Dreamstreet only took issue with the conduct of Mr Weiss so far as it concerned customers of Dreamstreet with whom he had had dealings.

173    For these reasons, cl 13(a)(iii) is also unenforceable. Clause 13(a)(iii) did not comprise multiple covenants (at least so far as it concerned “clients”) such that the objectionable elements might be severed. Had cl 13(a)(iii) been limited to clients of Dreamstreet with whom Mr Weiss had had dealings, it would, in my view, have been enforceable. But it went a great deal further, and is unenforceable as a consequence.

Whether Mr Weiss breached cl 13

174    Given my conclusions above, the question of whether Mr Weiss breached the restraints does not arise. However, if I am wrong on the enforceability of the cl 13 restraints, I will set out — briefly — my conclusions on the question of breach. I note that, in its amended schedule of particulars to its FASOC, Dreamstreet referred to communications between Mr Weiss and several customers in addition to those referred to below. However, Dreamstreet only sought findings in respect of the customers referred to below.

175    Customers CL and YL: By its closing submissions, Dreamstreet sought findings that Mr Weiss breached both cll 13(a)(ii) and (iii) in respect of CL and YL.

176    Although Mr Weiss was a personal friend of the couple, they did have an extant loan with Dreamstreet at the time that the Weiss SA was terminated. Accordingly, they had a “relationship” with Dreamstreet for the purposes of cl 13(a)(iii), even though that relationship was not a happy one, given the couple’s deep unhappiness with Mr Hronis and their earlier treatment by him. Mr Weiss interfered in that relationship by arranging the refinance for CL and YL after the termination of the Weiss SA. Given this conclusion regarding cl 13(a)(iii), it is not necessary to address whether Mr Weiss’s actions would also have breached cl 13(a)(ii).

177    However, given the attitude of CL and YL to Mr Hronis and Dreamstreet, I am not satisfied that Dreamstreet suffered any loss by reason of the breach. As I have set out above, CL and YL were very unhappy with Dreamstreet and wanted nothing more to do with Dreamstreet and Mr Hronis. They were also going to the market at large in relation to their refinancing. In my view, had Mr Weiss adhered to the terms of his restraints, there was still no realistic prospect that CL and YL would have refinanced through Dreamstreet. It is much more likely that, being willing to pay break costs (as they were by then), they would have refinanced through another market participant. Dreamstreet would only be entitled to nominal damages in relation to any breach.

178    Customers CB and TC: In its closing submissions, Dreamstreet contended that Mr Weiss breached cl 13(a)(ii) by his conduct in respect of CB and TC. It did not seek a finding that Mr Weiss breached cl 13(a)(iii) in relation to these customers.

179    As is clear from the authorities referred to in relation to the construction of cl 13(a)(ii) above, there may be solicitation even where the customer approaches the restrained person, and not vice versa. However, there is no clear dividing line between conduct that will amount to solicitation (or like expressions) and conduct that does not, on the basis that the restrained person does no more than indicate a willingness to be engaged, without positively encouraging the customer to engage him or her. It is necessary, in each case, to look at what passed between the restrained person (here Mr Weiss) and the customer (here CB and TC).

180    Dreamstreet did not call CB or TC to give evidence. Nor did Mr Weiss. The evidence of what passed between Mr Weiss and CB (who was the one interacting with Mr Weiss) was limited to some documentary records and Mr Weiss’s evidence in chief and cross-examination.

181    Mr Weiss’s evidence was that CB contacted him, and not vice versa. This was not seriously contested by Dreamstreet but, as noted, is not decisive. Mr Weiss initially claimed, in an affidavit, that:

[CB] called me in July 2020 and left a voice message for me advising that his build contract was now ready and asked if I could assist him with applying for finance.

I responded by sending an email advising that I was no longer working at Dreamstreet and that he needed to call the Dreamstreet office and ask them for assistance.

[CB] responded to the email asking if I was still working in the industry and whether I can help or whether I could refer him to someone else in the industry.

My understanding of that email was that [CB] no longer wanted to work with Dreamstreet and was looking to take his business elsewhere. I therefore responded by calling [CB] telling him that if he did not want to return to Dreamstreet and was going to be looking elsewhere then I would be able to help etc. [CB] told me that he had spoken to his partner [TC] and they were both keen on continuing to work with me specifically.

After we were made aware of this legal application, Financepath advised me of their intention to send the loan approval back to Dreamstreet.

I believe that this is what took place which has meant that Dreamstreet has not lost any commission.

182    Mr Weiss’s initial account was misleading. As was exposed during the trial:

(a)    the initial call from CB was not in mid-July 2020 but much earlier, and significant work had been completed on the loan prior to 17 July 2020;

(b)    by 9 July 2020, Mr Weiss had completed a Financepath loan recommendation for CB and provided it to him;

(c)    on 17 July 2020, Mr Weiss sent a finalised Financepath application to CB, which CB signed only minutes before Mr Weiss sent CB the email supposedly directing him back to Dreamstreet; and

(d)    the email exchange between Mr Weiss and CB on 17–18 July 2020 was confected to look like the issue of Dreamstreet was only raised around the date of that email exchange, and Mr Weiss also scripted CB’s email to him.

183    While Dreamstreet showed that Mr Weiss’s account of what occurred in relation to CB and TC was misleading, its cross-examination failed to elicit evidence as to what actually did occur in the interactions between Mr Weiss and CB. In particular, it did not discharge its burden of showing that Mr Weiss did more than indicate a willingness to deal with CB and TC, but encouraged them to deal with him. He may have, but Dreamstreet did not establish that he did. Nor did Dreamstreet’s submissions tackle the issue of just what Mr Weiss did to encourage CB and TC to deal with him. The fact that Mr Weiss completed a loan recommendation and application for CB and TC, prepared a finalised Financepath application and confected the email exchange, does not establish how the engagement between CB and Mr Weiss proceeded to that point. Accordingly, Dreamstreet has not established that Mr Weiss breached cl 13(a)(ii) of the Weiss SA in respect of CB and TC. As noted, it did not seek any finding of a breach of cl 13(a)(iii).

184    Customers JA and NA: In its closing submissions, Dreamstreet sought a finding that Mr Weiss’s conduct in relation to JA and NA amounted to a breach of cl 13(a)(ii) of the Weiss SA. It did not seek a finding that Mr Weiss breached cl 13(a)(iii) in relation to these customers.

185    JA sought Mr Weiss’s advice about his borrowing capacity, and Mr Weiss responded by asking JA, and his wife NA, to provide him information regarding the value of certain properties, their tax returns and company tax returns. After the proceeding was commenced, Mr Weiss emailed JA and NA confirming he was no longer working with Dreamstreet and referring them back to Dreamstreet. While Mr Weiss’s engagement with JA and NA may have matured into assisting them with a further loan, matters never reached that point. In my view, and although the identity of who initiated contact is not decisive, Mr Weiss’s actions did not go so far as to amount to him soliciting, canvassing or approaching JA and NA with a view to establishing a relationship, or obtaining their custom, through Financepath, within the terms of cl 13(a)(ii). I accept that Financepath is a business engaged in business of a similar or related nature to that of Dreamstreet, but merely responding to JA’s bare enquiry about borrowing capacity did not involve Mr Weiss soliciting, canvassing or approaching them with a view to “establishing a relationship with or obtaining the custom of [JA and NA] in [Financepath]”. Again, it is not to the point that, had Mr Weiss not referred JA and NA back to Dreamstreet on 2 October 2020, matters may have progressed such that the prohibited activities would have been undertaken.

186    Customer AP: In its closing submissions, Dreamstreet sought a finding that Mr Weiss’s conduct in relation to AP amounted to a breach of cl 13(a)(ii) of the Weiss SA. It did not seek a finding that Mr Weiss breached cl 13(a)(iii) in relation to this customer.

187    Contrary to Dreamstreet’s submission, AP was not a customer of Dreamstreet. AP was only said by Mr Hronis to have been “interested” in refinancing a sum of $200,000 to buy a block of land. He never actually took out any loan through Dreamstreet. In the vernacular, AP was a “tyre kicker”. Mr Weiss did not breach cl 13(a)(ii) as AP was not a “client, customer or patron” of Dreamstreet.

CLAIMS AGAINST FINANCEPATH FOR INDUCING BREACH OF CONTRACT

Extent of the claims against Financepath

188    Dreamstreet alleged that, by its conduct as pleaded in paragraphs 36 and 40 of the FASOC, Financepath had “with the intention and in the knowledge that it would cause a breach of contract, … induced Mr Weiss’s breaches of the [Weiss SA]”.

189    The conduct pleaded in paragraphs 36 and 40 of the FASOC was as follows:

36.    By agreeing to reward Mr Weiss via the payment of commissions in respect of loans he refinanced as a result of the conduct in paragraph 25 above, with the intention and in the knowledge that it would cause a breach of contract, FinancePath induced Mr Weiss’ breaches of the Weiss Services Agreement.

    …

40.    By agreeing to reward Mr Weiss via the payment of commissions in respect of loans he refinanced as a result of the conduct in paragraphs 17 to 21 and 29 to 31A above, with the intention and in the knowledge that it would cause a breach of contract, FinancePath induced Mr Weiss’ breaches of the Weiss Services Agreement.

190    As may be seen, the only inducing conduct relied on by Dreamstreet was Financepath’s agreement to pay Mr Weiss commissions in respect of loans he successfully concluded. It was confirmed by Dreamstreet’s counsel that the inducement was constituted by Financepath’s general agreement to pay commissions to Mr Weiss for successfully completed loans; Dreamstreet did not allege specific inducing conduct in respect of the Downloads, the use of other confidential information, or Mr Weiss’s dealings with Dreamstreet customers.

191    Dreamstreet’s case against Financepath for inducing breach of contract was only advanced in respect of some of the breaches alleged against Mr Weiss. In its closing submissions, Dreamstreet contended that Financepath induced the following breaches of contract by Mr Weiss:

(a)    breaches of cll 7(a)(ii) and 7(c), and 13(a)(ii) and 13(a)(iii) of the Weiss SA in respect of the customers DL and YL (CL was also referred to as DL given his nickname);

(b)    breaches of cll 7(a)(ii) and 7(c), and 13(a)(ii) of the Weiss SA in respect of customers CB and TC; and

(c)    breaches of cl 13(a)(ii) of the Weiss SA in respect of JA and NA, and in respect of AP.

192    The alleged breaches of cll 7(a)(ii) and 7(c) of the Weiss SA by Mr Weiss concerned his use of customer documents to progress loans for CL and YL, and for CB and TC, via Financepath. I concluded above that Mr Weiss did breach those confidentiality obligations in his use of documents concerning CL and YL, and CB and TC.

193    In relation to the breaches of the restraint clauses, I concluded above that both cll 13(a)(ii) and (iii) were unenforceable, but if they were not:

(a)    Mr Weiss breached cl 13(a)(iii) in respect of CL and YL, but Dreamstreet has not established it suffered loss or damage as a result; and

(b)    Mr Weiss did not breach cl 13(a)(ii) in respect of CB and TC, JA and NA, or AP.

194    Dreamstreet’s claims against Financepath for inducing breaches of contract by Mr Weiss must be considered in light of the conclusions I have reached concerning the allegations of breach of contract against Mr Weiss.

Elements of the tort of inducing breach of contract

195    The elements of the tort of inducing breach of contract are as follows, as stated by the Full Court in Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220 (Daebo Shipping) at [88] (Keane CJ, Rares and Besanko JJ):

The tort of inducing a breach of contract consists of the following elements:

(1)    there must be a contract between the plaintiff (or applicant) and a third party;

(2)    the defendant (or respondent) must know that such a contract exists;

(3)    the defendant must know that if the third party does, or fails to do, a particular act, that conduct of the third party would be a breach of the contract;

(4)    the defendant must intend to induce or procure the third party to breach the contract by doing or failing to do that particular act;

(5)    the breach must cause loss or damage to the plaintiff.

196    In State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd (No 2) (2021) 164 IPR 420; [2021] FCA 137 at [415], Beach J included the absence of a defence of honest and reasonable belief as a sixth element.

197    While simply stated at the level of overview, it is also necessary to address the relevant principles by which the elements are to be addressed. Those principles were recently, and comprehensively, surveyed by Kenny J in Sealed Air Australia Pty Ltd v Aus-Lid Enterprises Pty Ltd (2020) 375 ALR 324; [2020] FCA 29 (Sealed Air). The analysis conducted by Kenny J in Sealed Air at [190]ff identified relevant principles stated by Lindgren J (with whom Lockhart and Tamberlin JJ agreed) in Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 (Allstate). As Kenny J observed in Sealed Air at [195], Lindgren J’s analysis in Allstate was referred to with approval by the Full Court in LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 (LED Technologies) at [42] (Besanko J, with whom Mansfield and Flick JJ agreed) and by the New South Wales Court of Appeal in Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 (Fightvision) at [164]–[170], [251] (Sheller, Stein and Giles JJA).

198    The principles that are relevant to the case advanced against Financepath are set out below. The identification of these principles draws on Kenny J’s comprehensive analysis in Sealed Air.

199    The alleged tortfeasor must intend that the conduct being induced will be a breach of contract; the gravamen of the tort is intention: Allstate at 42–43; LED Technologies at [42].

200    The requirement of knowledge of the contract is not a separate ingredient of the tort, but is an aspect of intention. As stated by Lindgren J in Allstate at 43:

The requirement that the alleged tortfeasor have “sufficient knowledge of the contract” is a requirement he have sufficient knowledge to ground an intention to interfere with contractual rights.

201    It is the alleged tortfeasor’s actual or subjective state of mind to which regard is had in assessing both the intention to interfere and the necessary supporting knowledge of the contract: Allstate at 43.

202    The alleged tortfeasor need not have knowledge of the precise term or terms of the contract that will be breached. Having “a fairly good idea” that the contract benefits another in a relevant respect may be sufficient to ground the necessary intention to interfere with contractual rights: Allstate at 43; Sealed Air at [208]; Daebo Shipping at [89].

203    “Wilful blindness” or “reckless indifference” are not synonymous with “intention” or “knowledge”: Allstate at 37.

204    However, the necessary intention may be evident where a defendant is recklessly indifferent to the terms of the contract or, knowing the terms of the contract, is recklessly indifferent as to whether the relevant conduct will constitute a breach. However, a lack of reasonable care, or acts of negligence, even gross negligence, are not to be confused with reckless indifference: Polyaire Pty Ltd v K-Aire Pty Ltd [2003] SASC 41 (Polyaire) at [209] (Besanko J, then a judge of the Supreme Court of South Australia) and OBG Ltd v Allan [2008] 1 AC 1 at [41] (Lord Hoffman), both quoted by Kenny J in Sealed Air at [200]–[201]; see also LED Technologies at [50] and [54]. Ignorance of the existence or terms of the contract that is born of inadvertence or negligence is not enough: Fightvision at [171].

205    The circumstances in which wilful blindness or reckless indifference will be sufficient to ground the necessary intention were addressed by Besanko J (with whom Mansfield and Flick JJ agreed) as follows in LED Technologies at [54] (emphasis added), quoted by Kenny J in Sealed Air at [207]:

The evidence in this case would not support a finding that either Mr Wells or Mr Mitchell knew that Valens would or were using the moulds partly paid for by the appellant to manufacture the lights supplied to the respondents. The question is whether either of them turned a blind eye to the possibility. That means whether they made a conscious decision not to inquire into the existence of a fact in case they “discovered a disagreeable truth”. The third possible category of knowledge, namely reckless indifference, is more difficult to describe in terms of content. I think that there is such a category, but bearing in mind that the tort under consideration is an intentional tort and gross negligence is insufficient it seems to me that reckless indifference is something quite close to wilful blindness. It will be negated by an honest belief, even one exhibiting a high degree of credulity. It will be established only if the facts show affirmatively that the alleged tortfeasor, faced with knowledge of at least a substantial prospect of a breach, proceeded not caring whether or not a breach would occur.

206    A bona fide belief, reasonably entertained, that the conduct in question would not be in breach of contract would be fatal to the claim: Short v City Bank of Sydney (1912) 15 CLR 148 at 160 (Isaacs J), quoted by Kenny J in Sealed Air at [209]. As Kenny J explained, in drawing together some strands of analysis in Sealed Air (at [217], emphasis added):

Having regard to these authorities, it may be accepted that, where the relevant knowledge does not rise to the level of actual knowledge or wilful blindness, an honest (or genuine) belief that the contract breaker will not be in breach of contract will suffice to negate the necessary intention for a finding of liability under the tort: see LED Technologies at [54] and Smith v Morrison [[1974] 1 WLR 659] at 677–678. Whether the claimed belief is an honest one is to be determined on the evidence, by reference to the circumstances of the case, including the facts known or notified to the alleged tortfeasor. It may further be accepted that, in some circumstances, there may be a finding of honest belief, notwithstanding that the belief exhibited a high degree of credulity.

Consideration

The fifth element: whether the breach caused loss or damage to Dreamstreet

207    I will begin by considering the fifth element of the cause of action as, in my view, Dreamstreet has not made out this necessary element.

208    Dreamstreet accepts that Mr Weiss’s breaches of cll 7(a)(ii) and 7(c) of the Weiss SA in relation to the use of customer documentation to advance loan applications for CL and YL, and for CB and TC, did not cause it to suffer any loss or damage.

209    Accordingly, the fifth element is not satisfied in respect of Dreamstreet’s claims that Financepath induced Mr Weiss to breach the Weiss SA by using customer documentation to advance their loan applications on behalf of Financepath. I was not directed to any authority suggesting that, where no actual loss or damage is suffered, an award of nominal damages suffices for the purposes of the fifth element of the tort.

210    That leaves the allegations that Financepath induced Mr Weiss to breach the restraints imposed on him by cl 13(a)(ii) and (iii) in respect of CL and YL, and cl 13(a)(ii) in respect of CB and TC, JA and NA, and AP.

211    While I have concluded that the restraints are not enforceable against Mr Weiss, in any event, Dreamstreet has not made out the fifth element of the tort of inducing breach of contract in relation to any of the alleged breaches of the restraints.

212    As noted above, I concluded that Mr Weiss did not breach cl 13(a)(ii) in respect of CB and TC, JA and NA, and AP. Accordingly, Dreamstreet suffered no loss or damage due to a breach of cl 13(a)(ii) of the Weiss SA by Mr Weiss in relation to those customers and the fifth element of the cause of action has not been made out.

213    In relation to CL and YL, while I concluded that (if, contrary to my view, the restraint is enforceable) Mr Weiss breached cl 13(a)(iii), Dreamstreet has not made out its case that it suffered loss or damage as a result.

214    Accordingly, all of Dreamstreet’s claims that Financepath induced Mr Weiss to breach the Weiss SA in the respects for which it contended fail at this hurdle.

215    Nevertheless, as the parties devoted significant effort during the trial and in submissions to the knowledge and intention elements, I will briefly set out my conclusions on the key disputed matters, should such findings later be relevant.

First element: existence of a contract

216    Clearly there was a contract between Dreamstreet and Mr Weiss: the Weiss SA. The Weiss SA was terminated on 11 June 2020. Mr Weiss’s obligations under cl 7 and cl 13 (if enforceable) were continuing obligations which survived termination.

Second element: knowledge of such a contract

217    Financepath did not dispute that it knew that Mr Weiss had been working for Dreamstreet under some contract; its contention was that it was not aware of the terms of Mr Weiss’s agreement with Dreamstreet until it received a copy of the Weiss SA on 25 September 2020. The evidence of Mr Collard established that Financepath knew that Mr Weiss was working for Dreamstreet prior to moving to Financepath, and I infer that Financepath knew that Mr Weiss was under some contract with Dreamstreet, as it is not plausible (and Financepath did not seriously contend that) Mr Weiss was working for Dreamstreet without any contract having been agreed between them. Accordingly, while there is substantial dispute about what Financepath knew about Mr Weiss’s contractual obligations, and when it knew various things, there was no real dispute about the second element of the cause of action.

Third and fourth elements: knowledge the actions would be in breach of contract, and intention to procure the breach

218    As knowledge (or wilful blindness or reckless indifference of the necessary kind) is not a separate element, but is an aspect of the intention to procure the breach, it is convenient to address the elements of knowledge and intention together.

219    It is also necessary to identify the relevant points in time at which the conduct, said by Dreamstreet to constitute breaches of the Weiss SA by Mr Weiss, occurred so as to assess Financepath’s knowledge and intention at the relevant points in time.

220    The relevant times when Mr Weiss is said to have acted in contravention of his obligations under the Weiss SA (which alleged breaches Dreamstreet contended Financepath induced) are as follows:

(a)    alleged breaches of cll 7(a)(ii) and 7(c) of the Weiss SA in relation to CL and YL: 31 August 2020 (when Mr Weiss sent an email from his Gmail email account to his Financepath email address and then forwarded an email with the subject “[CL] & ID” to the Financepath credit support team);

(b)    alleged breaches of cll 7(a)(ii) and 7(c) of the Weiss SA in relation to CB and TC: 6 July 2020 (when Mr Weiss emailed documents from his Gmail email account to his Financepath email address and then caused those documents to be uploaded onto Financepath’s client system);

(c)    alleged breaches of cll 13(a)(ii) and (iii) of the Weiss SA in relation to CL and YL: from mid-July 2020 (when Mr Weiss had phone calls with CL) through 16 October 2020 (when CL and YL’s refinanced loan settled with Bendigo and Adelaide Bank) to 1 February 2021 (when the balance of the loan remaining with Dreamstreet was paid out);

(d)    alleged breaches of cl 13(a)(ii) of the Weiss SA in relation to CB and TC: from no later than 15 June 2020 (when Mr Weiss and CB had contact by text message) through July 2020 (when Mr Weiss completed a Financepath loan recommendation and a finalised Financepath application, signed by CB) to 17 December 2020 (when Financepath directed CB and TC back to Dreamstreet);

(e)    alleged breaches of cl 13(a)(ii) of the Weiss SA in relation to JA and NA: from 10 September 2020 (when JA contacted Mr Weiss) through 17 September 2020 (when Mr Weiss requested details from JA and NA) to 2 October 2020 (when JA and NA were referred back to Dreamstreet); and

(f)    alleged breaches of cl 13(a)(ii) of the Weiss SA in relation to AP: from 15 July 2020 (when AP contacted Mr Weiss) through to 30 July 2020 (when Mr Weiss obtained documents from AP, spoke to his accountant and completed a serviceability calculator).

221    For the reasons set out below, I am not satisfied that Financepath intended to procure that Mr Weiss breach his contractual obligations to Dreamstreet prior to 25 September 2020 (being the date on which Financepath was provided with a copy of the Weiss SA). In my view, Dreamstreet has not established that Financepath had any actual knowledge of, or was wilfully blind or recklessly indifferent to, Mr Weiss’s confidentiality obligations, or his restraint obligations (assuming they were enforceable) prior to that time.

Knowledge and intention from the start of Mr Weiss’s employment with Financepath on 1 June 2020

222    Dreamstreet sought to sustain its contention that Financepath should be taken to be on notice that Mr Weiss was subject to the confidentiality and restraint obligations on the basis of “industry practice”. Dreamstreet drew attention to the fact that Financepath operated in the same industry and that the terms of Financepath’s own contract with Mr Weiss contained restraints and provisions designed to protect Financepath’s confidential information.

223    Proof of the terms of Dreamstreet’s contract with Mr Weiss and Financepath’s contract with Mr Weiss falls far short of evidence establishing any “industry practice”. Further, it was not accepted by Financepath’s witnesses that such terms were common in the industry. Nor did Financepath make any admissions about what was standard in the industry. Moreover, in circumstances where Financepath was aware that Mr Weiss worked for Dreamstreet as a consultant, but wished to be taken on by Financepath as an employee (so that he could be provided with “leads” by Financepath), the terms of Financepath’s own contract with Mr Weiss do not support Dreamstreet’s case.

224    Dreamstreet also contended that the fact that Mr Mardegan was an employee of Financepath also meant that the Court should find that Mr Mardegan was “at least generally aware of the existence of these clauses in Dreamstreet’s contracts” and that his knowledge should be attributed to Financepath. Mr Mardegan had been employed by Dreamstreet between 2007 and June 2020 as a Senior Credit Manager, and then Operations and Lending Manager. Mr Mardegan was then employed by Financepath from 28 June 2020 in the role of Credit Manager. While he was with Dreamstreet, Mr Mardegan had received and been involved in reviewing Dreamstreet’s standard form contracts on some occasions. Five emails in 2016 and 2017 were in evidence wherein Mr Mardegan was involved in receiving or requesting copies of the then-current agreement and was consulted on changes.

225    I do not accept that, due to Mr Mardegan’s former role with Dreamstreet, Financepath had actual or constructive knowledge that Mr Weiss was subject to contractual obligations of the general kind in question. First, even though Mr Mardegan had been asked to review various of Dreamstreet’s standard form contracts while he was with Dreamstreet, he did not even recall having undertaken that task, let alone the terms of those agreements. In my view, given that intention is the gravamen of the tort, showing an employee had some knowledge or involvement in his previous employer’s contractual terms in years past does not fix his future employer with knowledge sufficient to ground the necessary intention to procure a breach of contract where the employee in question did not recall the events said to ground the knowledge. Secondly, and in any event, Mr Mardegan was not an officer of Financepath. Dreamstreet did not cite any authority to suggest that the knowledge of a person in Mr Mardegan’s position can be attributed to a company, at least where that employee had no role in the alleged inducement of the breach of contract.

226    In my view, to the extent that the actions of Mr Weiss said to found the relevant breaches occurred between 1 June 2020 and mid-July 2020, Financepath did not know that Mr Weiss was subject to contractual obligations that benefitted Dreamstreet in the relevant respects. Nor was Financepath aware of the actions that Mr Weiss took in this period. While Mr Weiss referred to CL, CB and NA in his “business plan” prepared after he started with Financepath, Mr Weiss’s evidence was that that document was a kind of mock up, to familiarise himself with the Financepath business planning process. It did not fix Financepath with knowledge that Mr Weiss was planning to make, still less had made, contact with former Dreamstreet customers.

227    Further, and contrary to Dreamstreet’s submission, the mere fact that Mr Weiss uploaded document files relating to CB into Financepath’s client system (on 6 July 2020) did not put Financepath on notice that he had breached his contractual obligations of confidentiality owed to Dreamstreet. Dreamstreet did not explain in its submissions how Financepath was to know that the uploaded documents came from a collection Mr Weiss had assembled while with Dreamstreet. Given that the gravamen of the tort is intention, I do not consider it sufficient that such documents were uploaded when neither the upload, nor the provenance of the documents, was brought to the attention of senior personnel of Financepath whose knowledge may be attributed to the company. Dreamstreet did not cite any authority to suggest that such procedural steps occurring without being brought to the attention of Financepath’s officers would be sufficient to ground knowledge on the part of Financepath.

Knowledge and intention from mid-July 2020

228    The next point in time at which Dreamstreet contended that Financepath obtained knowledge of what it referred to as the “Weiss Restraints” was mid-July 2020, when there was a phone conversation between Mr Hronis and Mr Mardegan. I note that Dreamstreet did not rely on this conversation in connection with Financepath’s knowledge of Mr Weiss being subject to obligations of confidentiality.

229    Mr Mardegan’s evidence was that Mr Hronis phoned him on or shortly before 17 July 2020, and said that he knew Mr Weiss was working for Financepath and that he wanted Mr Mardegan to pass on the message to Mr Weiss that he should “be careful”. Mr Hronis’s account was more elaborate. Mr Hronis said in his affidavit that he also said to Mr Mardegan that Mr Weiss has “restraints under his agreement with Dreamstreet about trying to offer mortgage finance services to Dreamstreet’s customers” and “[y]ou better tell him that he should be very careful not to do so” and “[i]f he does I will sue him”. To the extent there is a conflict in the evidence, I accept the evidence of Mr Mardegan. For the reasons already explained, I consider that Mr Hronis was not a reliable witness of truth. In any event, Mr Mardegan passed on the “be careful” message to Mr Weiss and Mr Collard, and Mr Attard, although Mr Mardegan was not entirely clear what Mr Hronis meant by it.

230    Mr Attard and Mr Weiss then discussed the circumstances in which he should continue working for Dreamstreet customers, particularly CB. Mr Weiss said he did not discuss the restraints in the Weiss SA with Mr Attard at that time and was not even aware of what restraints he was subject to. Mr Attard told Mr Weiss only to proceed with a Dreamstreet customer if the customer expressly confirmed he did not want to go back to Dreamstreet and would put that in writing. Mr Attard’s evidence was that, when he encouraged Mr Weiss to send back customers that Dreamstreet brought to him (ie Company Leads), he did so because it was the morally right thing to do, and that he told Mr Weiss only to deal with company leads if they did not want to deal with Dreamstreet and put that in writing.

231    The evidence does not establish that Financepath became aware of the existence of contractual restraints imposed on Mr Weiss at that time. In the context of Mr Weiss having been employed to pursue Financepath’s leads (of which they had many), I also do not consider that the “be careful” warning and the conversation that Mr Attard then had with Mr Weiss meant that Financepath knew that if Mr Weiss continued to assist any Dreamstreet customers, he would be breaching his obligations to Dreamstreet. Even if it may be accepted that the “be careful” warning might have prompted a more thorough investigation by Financepath (eg, by asking Mr Weiss for a copy of his contract with Dreamstreet), negligence is not tantamount to knowledge or intention: Polyaire at [209]; LED Technologies at [54]; Sealed Air at [207]. Nor do I consider that Financepath’s failure to make further enquiries at this point in time constitutes reckless indifference or wilful blindness. Financepath was not shutting its eyes to an inconvenient truth and did not proceed to permit Mr Weiss to continue to assist any Dreamstreet customers not caring whether or not that would put Mr Weiss in breach of any contractual obligations he owed to Dreamstreet.

232    Accordingly, Dreamstreet has not established that Financepath had the necessary knowledge and intention to procure that Mr Weiss breach his obligations of confidentiality, or the restraints, through to the next relevant point in time, which is early September 2020. As the use of the CL documentation to progress the finance application for CL and YL occurred in this period (31 August 2020), I repeat my observations above concerning the use of CB and TC’s documentation obtained by Mr Weiss while with Dreamstreet. As with the use of CB and TC’s documentation, there is no basis upon which to attribute knowledge of the provenance of, and use of, the CL documentation to Financepath.

Knowledge and intention from early September 2020

233    The next point at which Dreamstreet submitted Financepath’s knowledge was established, or augmented, was early September 2020.

234    The totality of Dreamstreet’s submissions on knowledge at this point was the following paragraph in its closing submissions (footnotes omitted):

On 9 September 2020, Mr Collard was told by representatives of Adelaide Bank that Mr Hronis believed that Mr Weiss was soliciting eight Dreamstreet clients and that Dreamstreet wanted this conduct to cease. At this time, Mr Collard was already aware that Mr Weiss had been servicing DL and YL, and that they were former Dreamstreet customers. Mr Collard also gave evidence that Mr Weiss informed him that he was approached by a number of former Dreamstreet customers. Mr Collard neglected to enquire of Mr Weiss who those clients were.

235    There was limited expansion on the point in oral closing submissions. Dreamstreet submitted (starting with the “be careful” warning in mid-July 2020) as follows:

But in our submission, it’s tolerably clear that Mr Hronis was not telling anyone to be careful about not adhering to some sort of vague moral standard; it was about taking customers in breach of a restraint. And that was amplified, we say, by the interactions with the Adelaide Bank whereby in mid-September 2020, at the behest of Mr Hronis, there’s contact made with FinancePath complaining about the conduct of Mr Weiss and — again, plenty of notice of what — the fact that there’s a clause and ample opportunity to find out what that clause said and do something about it. But nothing was done.

236    There is nothing in the evidence that suggests the complaints communicated by Adelaide Bank to Financepath via Mr Collard tied the complaints to an assertion that Mr Weiss’s actions were in breach of the restraint clauses. The internal Adelaide Bank email reporting on the outcome of its conversation with Mr Collard referred to Mr Collard having addressed the issue of dealing with customers of a competitor through the lens of what was morally right or wrong (cf contractually prohibited). While Mr Collard, in cross-examination, did not recall having discussed with Ms Tilley (the bank officer) the moral position of dealing with customers of competitors, he denied that he knew or said it was not only morally wrong but legally wrong.

237    Following the complaint received through Adelaide Bank, Financepath’s lack of enquiry into just what Mr Weiss’s restraints were, or the more precise dimensions of which Dreamstreet customers he was assisting, is somewhat surprising. However, I am not satisfied that its lack of enquiry establishes reckless indifference or wilful blindness, such that I could conclude that, by failing to stop Mr Weiss continuing to assist Dreamstreet customers, Financepath intended to procure that Mr Weiss breach contractual obligations owed to Financepath.

238    The position changes, however, after 25 September 2020.

Knowledge and intention from 25 September 2020

239    Financepath was provided with a copy of the Weiss SA on 25 September 2020, when the affidavit supporting the ex parte search order was served on it. From this date, Financepath had actual and full knowledge of the terms on which Mr Weiss had been retained by Dreamstreet. While the Weiss SA was not a well drafted contract, the restraint clauses were clear enough and obviously broad. They did not include any carve-out for customers who stated (whether in writing or otherwise) that they did not want to deal with Dreamstreet.

240    I have found that, if the restraints were enforceable (which I consider they are not), Mr Weiss breached cl 13(a)(ii) in respect of CL and YL (but not in respect of CB and TC, JA and NA, and AP). Mr Weiss’s actions in progressing the finance application for CL and YL continued beyond 25 September 2020, and at least Mr Collard knew that Mr Weiss was assisting CL and YL. In my view, by failing to stop Mr Weiss continuing to assist CL and YL after 25 September 2020, Financepath intended to procure that Mr Weiss breach his restraints. Even if Financepath did not turn its mind to whether the continued assistance of CL and YL would put Mr Weiss in breach of his contract with Dreamstreet, with knowledge of the full terms of the Weiss SA, its failure to take further action or stop Mr Weiss means it acted with reckless indifference or wilful blindness sufficient to evince the necessary intention.

241    However, as I have already observed, Dreamstreet did not suffer any loss or damage by virtue of the conduct of Mr Weiss in relation to CL and YL, such that the fifth element is not satisfied in any case and the cause of action in respect of the breach of cl 13(a)(ii) in respect of CL and YL therefore fails.

242    As regards the breaches of the confidentiality obligations, by the time Financepath acquired knowledge of the terms of the Weiss SA from 25 September 2020, the actions in question (regarding the use of documentation) had happened some time ago. Further, and as noted, the provenance and use of those documents was not brought to the attention of Financepath’s officers such that any case of inducing breach of contract might arise from the continued pursuit of financing that used that documentation.

Exemplary damages claim

243    Dreamstreet sought an award of exemplary damages in the sum of $100,000 against Financepath in relation to its claims that Financepath induced Mr Weiss’s breaches of contract.

244    As I have concluded that Dreamstreet’s claims that Financepath tortiously induced Mr Weiss to breach the Weiss SA have failed, it is not necessary to say anything more about the exemplary damages claim save that I do not consider that Financepath’s conduct was of the character that attracts the grant of what is an extraordinary remedy: Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 at [140], [153] (Hill and Finkelstein JJ); Coloca v BP Australia Ltd [1992] 2 VR 441 at 448 (O’Bryan J).

THE CLAWBACK CLAIMS

245    The Weiss SA provided for Dreamstreet to recoup commissions from Mr Weiss in certain circumstances. This mechanism was referred to as “clawback”.

246    Clawbacks were provided for in the Services Schedule to the Weiss SA by cll 2(g) and (h), which were in the following terms:

(g)     If the Consultant has been paid commissions in respect of loans and subsequently the Lender requires repayment of the Corresponding Commission, the Consultant must on demand pay to the Company the amount of such commissions as calculated by the Company.

(h)     Clawback will be paid back for 4 years if the customer discharges within 3 years of their Loan

(i)     1 – 12 months 100% of Commissions

(ii)     13 – 24 months 50% of Commissions

(iii)     25 – 36 months 36% of Commissions

(iiii)     37 – 48 months 25% of Commissions

247    The term “Clawback” was defined in the Services Schedule as “a payment when a customer has discharged within 3 years of their Loan”. The Services Schedule contains a further defined term, “Corresponding Commission”. That term was defined as “the payment by the Lender to the Company in respect of a loan for which the Company is obliged to make a corresponding payment to the Consultant”. Pursuant to the Services Schedule, Mr Weiss was entitled to upfront commissions on all loans and trail commissions on loans where he introduced the customer (cf leads introduced by Dreamstreet).

248    Dreamstreet claimed clawback in relation to eight loans, whose details were recorded in Dreamstreet’s Amended Confidential Schedule of Particulars. It is not necessary to set out those details here.

249    Dreamstreet’s pleading of its entitlement to clawback was in the following terms at [9] of its FASOC (emphasis added):

Special Conditions 2.3(g) and (h) of the Weiss Services Agreement provide that if a Lender requires repayment of commissions that the Lender paid to Dreamstreet (Clawback), then Mr Weiss must pay to Dreamstreet on demand the amount of commission that he received in relation to such loan. Further, if there is a Clawback by any Lender as a result of a client discharging their loan within 3 years, then Mr Weiss must repay a percentage of any commissions that he received in respect of such loans. The formula for Clawback is 100% if the client discharges within the first 12 months and on a sliding scale if later into the loan.

250    As may be seen, this plea conditioned the entitlement to claim repayment from Mr Weiss on Dreamstreet itself having been subject to a claim for repayment by the lender. The case was also opened on this basis, with Dreamstreet’s counsel explaining that (emphasis added):

if the loan finishes early, and the bank seeks a clawback of the commission from Dreamstreet or FinancePath, then, in turn, they seek a clawback from the credit advisor.

251    Dreamstreet’s written opening submission was consistent with this and stated (emphasis in bold added):

Special Conditions 2.3(g) and (h) of the Weiss – Dreamstreet Services Agreement provide that if a Lender requires repayment of commissions that the Lender paid to Dreamstreet, that is Clawbacks, then Mr Weiss must pay to Dreamstreet on demand the amount of commission that he received in relation of such loan. Further, if there is a clawback by any Lender as a result of a client discharging their loan within 3 years, then Mr Weiss must repay a percentage of any commissions that he received in respect of such loans. The formula for clawback is 100% if the client discharges within the first 12 months and on a sliding scale if later into the loan.

252    Despite this plea, and despite Mr Hronis saying in his evidence that Dreamstreet was only chasing money back from Mr Weiss if the funder claimed money back from Dreamstreet, Dreamstreet sought to advance a different case in closing. In closing, it submitted that cl 2.3(g) operated independently of cl 2.3(h) and, in order to claim a clawback under cl 2.3(h), there is no requirement that Dreamstreet first have been required by the lender to repay the commission it received. In other words, it contended for two separate clawback obligations.

253    In its closing submissions, Dreamstreet confidently stated that the “unchallenged evidence” was that it “is entitled to claim Clawback against Mr Weiss in respect of the following clients …”. On inspection of the evidence cited, the relevant passages of Mr Hronis’s affidavit merely assert such an entitlement. Dreamstreet’s entitlement to clawback depends on both factual and legal issues. It is not a matter that can be established by the bare assertions of Mr Hronis.

254    Mr Weiss, despite being self-represented, was alive from the outset of the trial (apparently from some information he gleaned from the process relating to objections) to Dreamstreet’s attempt to claim clawbacks even where Dreamstreet had not itself repaid or been subject to a demand for repayment by a lender. He addressed this matter in his oral opening. Were it not for Mr Weiss clearly being alive to the argument that Dreamstreet may be running — viz, that it was entitled to clawback whether or not it was the subject of any claim by a lender to repay commissions — I would not permit Dreamstreet to depart from the case that it pleaded and opened. However, as I have indicated, Mr Weiss was alive to the alternate construction argument, so I will address the claim on that basis.

255    Again, the drafting of the Weiss SA was not a model of clarity. Nevertheless, I do not accept that cll 2.3(g) and (h) operated independently of one another. Considering what the parties, objectively, agreed to, I do not consider there is any basis upon which to conclude that the parties to a commercial agreement whereby a mortgage consultant who earned only commissions (after an initial period) agreed to repay commissions to Dreamstreet simply because a customer discharged a loan, even if Dreamstreet itself was not subject to any repayment claim from the lender. An obligation of that kind would confer a windfall gain on Dreamstreet and is simply not what the Services Schedule to the Weiss SA provided for. Rather, in my view, cl 2.3(h) is to be read with cl 2.3(g) and operated to determine the amount that Dreamstreet could claw back from Mr Weiss, depending on when the customer discharged the loan in question. As well as being, in my view, the only sensible construction open on the words of cll 2.3(g) and (h), the construction I prefer accords with commercial common sense as it provides for Dreamstreet to recoup stipulated commissions from consultants if it is itself subject to repayment claims by lenders due to an early discharge of the loan by the customer. The commercial logic of Dreamstreet being able to recoup commissions paid to its consultants where it has itself been required to remit commissions to lenders is obvious.

256    I note that there is a disconformity within the clause given that it referred in the chapeau to three years, whereas the sliding scale extended out to four years, but nothing turns on that in this case.

257    None of the submissions Dreamstreet made as to why the clauses constituted separate obligations persuades me to a different view. The first submission was that cll 2.3(g) and (h) were triggered by different events (payment to a lender versus discharge by a customer). This is a false dichotomy given that payment to a lender was itself triggered by discharge by a customer. The second submission was that cl 2.3(g) did not use the defined term “Clawback” as cl 2.3(h) does. That is so, but Clawback was only defined as “a payment when a customer has discharged within 3 years of their Loan”, such that it merely functioned to shorten the introductory wording of cl 2.3(h). The existence and use of the defined term is also not inconsistent with the construction I have adopted, even more so when account is taken of the fact that the drafting of the Weiss SA was patently very poor such that the inconsistent use of defined terms does not bear the weight it might bear in another case where the drafting is less sloppy. The third submission raised by Dreamstreet was that cl 2.3(g) referred to commissions calculated by Dreamstreet, whereas cl 2.3(h) set out a sliding scale of percentages. In my view, the sliding scale set out in cl 2.3(h) specified the amount which the Company may calculate for the purposes of cl 2.3(g).

258    The next question is whether Dreamstreet has proved that it has repaid, or has a liability to repay, commissions to a lender.

259    In relation to the customer MG, Dreamstreet produced what was stated to be a clawback statement issued by the lender to Dreamstreet in respect of the loans of MG. It refers to clawback of 100% of the upfront commissions ($23,202.12 plus GST), but does not refer to clawback of the trail commissions. Mr Weiss did not dispute that he received upfront commission of $9,744.89 (plus GST) in respect of the MG loans, but made the point that Dreamstreet had not established any demand by the lender that Dreamstreet repay trail commissions. As Dreamstreet was not exposed to any claim for clawback of trail commissions, I reject its claim to clawback the trail commission paid to Mr Weiss.

260    Accordingly, I am satisfied that Mr Weiss is liable to repay the upfront commissions received on the MG loans in the amount of $9,744.89 (ex GST).

261    The only other loans in respect of which clawback was claimed where Dreamstreet made any attempt to prove a liability to repay commissions to the lender were the loans for the customers DC and JC. In respect of that loan, Mr Hronis stated in his evidence that an RCTI in evidence issued by Origin Mortgage Management Services on behalf of Columbus Capital showed a clawback of $2,244.00 against Dreamstreet related to the loan taken out by DC and JC. I am prepared to accept that this is the position as the date corresponds with the date of refinance referred to in Dreamstreet’s CRM notes in respect of these borrowers. Mr Weiss did not dispute that he received the upfront commissions referred to by Mr Hronis, or dispute Mr Hronis’s calculations of the clawback due, which totalled $264.00 (ex GST). Accordingly, I am satisfied that Mr Weiss is liable to pay $264.00 (ex GST) to Dreamstreet as clawback on the loans of DC and JC.

262    I will invite the parties to make submissions on how GST ought to be addressed regarding the MG, DC and JC loans referred to above. Dreamstreet has not established an entitlement to clawback in respect of any of the other loans in respect of which it asserted such an entitlement.

COPYRIGHT CLAIMS

Dreamstreet’s claims

263    Dreamstreet amended its copyright claims at the start of trial. By its amended case, Dreamstreet alleged that copyright subsisted in the compilation of data in its CRM, alternatively the compilation of Person Records in the CRM, alternatively the compilation of Opportunity Records in the CRM (the Dreamstreet Compilations). Dreamstreet’s pleaded case did not identify any component of the “compilation of data in the CRM” that was additional to the compilations of Person Records and Opportunity Records in the CRM.

264    The term Person Records was defined as the type of records stored in the CRM which included personal information about Dreamstreet’s customers, being their name, mailing and home address, date of birth, phone number and other personal details as well as the name of the relationship manager for the customer. The term Opportunity Records was defined as a type of records stored in the CRM which included personal identifying information concerning Dreamstreet’s customers as well as details concerning the customer’s loan (such as the amount of the loan, name of the lender, loan transaction type, status of the loan application, status notes regarding the loan application, next action type, settlement date of the loan, total security held for the loan, the name of the referrer of the customer, and the name of the consultant responsible for the loan application).

265    Dreamstreet alleged that, without licence, Mr Weiss and Financepath reproduced a substantial part of the Dreamstreet Compilations, thereby infringing its copyright pursuant to s 36 of the Copyright Act. According to its particularised claims (FASOC at [48]):

(a)    Mr Weiss reproduced a substantial part of the Opportunity Records when he made the Second and Third Downloads on 11 May 2020;

(b)    Financepath reproduced a substantial part of the Person Records when Mr Weiss made the First Download on 11 June 2020;

(c)    Financepath reproduced a substantial part of the Person Records when Mr Weiss made the Chromebook version of the First Download between 11 June 2020 and 25 September 2020; and

(d)    Financepath reproduced a substantial part of the Opportunity Records when Mr Weiss made the 17 September 2020 version of the Second Download.

266    As may be seen, Dreamstreet did not contend that the actions of Mr Weiss that are referred to in (b)–(d) above — which it contended constituted conduct by Financepath — also constituted conduct by Mr Weiss in his personal capacity, resulting in Mr Weiss (cf Financepath) having infringed Dreamstreet’s copyright.

267    Dreamstreet relied on Mr Weiss’s employment by Financepath in asserting that the conduct referred to in (b)–(d) above was conduct of Financepath which constituted reproducing substantial parts of the Dreamstreet Compilations.

268    It should also be noted that Dreamstreet framed its pleaded case in relation to the reproduction of substantial parts of the Dreamstreet Compilations by reference to the reproduction of substantial parts of the Opportunity Records and the Person Records in the CRM (FASOC at [43] and [48]); it did not frame that case by reference to the compilation of the data in the CRM as a whole (despite stating in submissions that that was its primary case).

Facts

269    Between 2007 and early 2015, Dreamstreet used a CRM system to collect and store data in relation to its customers, which CRM system was provided first by an entity known as EMMS and then by an entity known as Symmetry. In early 2015, Dreamstreet switched its CRM provider to a new provider, Connective, which provided access to its Mercury CRM system. Connective’s CRM system included a standard set of data fields that could be completed when users at Dreamstreet created Person Records and Opportunity Records for new customers. The concepts and terminology of “Person Records” and “Opportunity Records” were also devised by Connective as part of the Mercury system; they were not created by Mr Hronis.

270    As part of the CRM migration process in 2015, Mr Hronis oversaw the selection of data fields and categories to be included in Dreamstreet’s CRM and the importation of data by Connective from Dreamstreet’s existing CRM into its new Mercury CRM. Following February 2015, Mr Hronis continued to oversee which data fields and categories for records were included in the CRM. Data was entered by administrative staff at Dreamstreet as well as by consultants, such as Mr Weiss.

271    The Mercury system was purpose-built by Connective for use by brokers and mortgage managers. As such, the “off-the-shelf” Mercury system already included features and fields tailored to the needs of mortgage brokers and managers. The Mercury system was licensed by Connective to Dreamstreet and allowed licensees to input and store data within the system. Annotated screenshots of Dreamstreet’s CRM were in evidence. By these screenshots, Mr Hronis identified where and how the “off-the-shelf” Mercury system had been tailored to Dreamstreet’s needs.

272    The categories of data under which Person Records could be input and stored within the Mercury system were built into the base software and Mr Hronis made no changes to those categories. The categories of data under the Opportunity Records which could be input and stored within the Mercury system were also built into the base software. Mr Hronis made no changes to those categories.

273    The only respect in which the off-the-shelf Mercury system was tailored was by Mr Hronis instructing a staff member to create drop-down options within certain pre-existing fields of the Opportunity Records. In other words, in respect of some of the fields that already existed within the Mercury CRM system, Mr Hronis oversaw or gave direction as to the drop-down menu items which were to be included from which staff and consultants could select when creating or updating records. For example, in the “status” field, various drop-down options were created from which those inputting data could select. Those options included “Lead Allocated”, “Reschedule Appointment”, “Call Back 3 – 6 months” and various other options. Drop-down options were also added in relation to the “Admin” and “Supervisor” fields, which identified the names of various people at Dreamstreet. The “Lead Source” field was also tailored by the creation of drop-down options by which the customer source could be identified by reference to, eg, whether the customer came through one of Dreamstreet’s various union relationships, other marketing initiatives, social media, the company’s website etc, or was a “self-generated referral”. Drop-down options were also established for the “Campaign” field, but there were only a few options under this field, which seemed to largely overlap with the options under the “Lead Source” field.

274    No tailoring was undertaken in respect of most of the other pre-existing data fields in the Opportunity Records, which included fields recording the “Opportunity Type” (eg, home loans, commercial loans, asset finance, etc), and “Categories” which were pre-populated for each “Opportunity Type” (eg, the pre-existing Mercury options for a home loan included options for fixed interest periods and other relevant matters such as whether the loan was a “Low Doc” loan).

275    Besides the addition of Dreamstreet Lending as an option in the drop-down menu for the “Lender”, no further tailoring was undertaken and lenders in the Australian market were already pre-populated in the base software (eg, ANZ, Bankwest and various other lenders). The Mercury system also already included “Transaction Type” options including, eg, “Refinance”, “Personal Loan”, “Construction” and other options. It also included calendar-based date selection tools to record the dates of appointments and settlements.

276    The layout of the CRM (in terms of how it is presented) was also a feature of the Mercury system. Likewise, the layout of, and categories of data included within, downloads of Person Records and Opportunity Records, were determined by the Mercury system. They were not the result of any tailoring by Mr Hronis.

277    Mr Hronis assigned the copyright claimed in the Dreamstreet compilations with effect from creation, as well as the related causes of action, to Dreamstreet by a deed of assignment dated 14 March 2023. As Dreamstreet submitted, such assignments have been held to be effective, despite the fact that they post-date the commencement of proceedings: Global Brand Marketing Inc v Cube Footwear Pty Ltd (2005) 65 IPR 44; [2005] FCA 479 at [59] (Goldberg J).

The parties’ arguments on whether the Dreamstreet Compilations are copyright works

278    Dreamstreet’s submissions highlighted that the test for originality in determining whether copyright subsists in a work is not an onerous one. It submitted that there is no requirement for “creativity” or “inventiveness” and instead, all that is required is that the work originates from an author “in the sense that involves some intellectual effort of the author as opposed to merely being copied from somewhere else”. Dreamstreet cited Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) 194 FCR 142 (Phone Directories) at [57]–[58] (Keane CJ) in support of this submission. Dreamstreet also submitted that, in respect of a compilation, the author will be the person who “gathers or organises the collection of material and who selects, orders or arranges its fixation in material form”, citing Phone Directories at [71] and IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 (IceTV) at [99] (Gummow, Hayne and Heydon JJ).

279    Dreamstreet’s primary case was that the compilation of data in the CRM is a relevant copyright work, but maintained its alternative case that the compilation of Person Records and the compilation of Opportunity Records are also protectable copyright works. While recognising that Mr Hronis did not tailor any of the fields in the Person Records to specifically reflect the needs of Dreamstreet’s business, Dreamstreet submitted that the compilation of Person Records was nonetheless a copyright work given that Mr Hronis directed and oversaw the collection and organisation of the data over a long period of time, citing Dargan Financial Pty Ltd v Isaac [2017] NSWSC 1077 (Dargan (first instance)) at [252] (Sackar J).

280    Financepath, whose submissions Mr Weiss adopted, submitted that, while a compilation expressed in words is a compilation in which copyright can subsist, copyright does not protect mere facts or information contained in a compilation. It submitted that, in respect of compilations, what copyright may protect “is the particular form of expression of the facts or information, and the selection and arrangement of that information”, citing IceTV and Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (2011) 91 IPR 488 (Dynamic Supplies) at [50] (Yates J). Financepath submitted that, in protecting the particular form of expression of the facts or information in a compilation and the selection and arrangement of that information, copyright is protecting the originality of that work and the labour, skill and capital of its creator. Financepath submitted that Dreamstreet had to establish that the particular form of expression of data within the CRM, and the selection and arrangement of that data, is original in the sense of having been produced through the exercise of “considerable skill, judg[e]ment, knowledge, labour and expense involved in gathering, selecting and arranging the material included in the compilation”, citing Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109 at [104] (Bennett J).

281    Financepath submitted that the particular form of expression of the data within the CRM, and the selection and arrangement of that data, was a feature of the Mercury system and was not the result of any skill, judgement, knowledge, labour or expense applied by Mr Hronis. In that regard, Financepath stressed the extent to which the Mercury system pre-populated various fields and the extent to which the layout and design of what appears in the CRM, including downloads from it, was pre-determined by the Mercury system.

282    Financepath submitted that the only “labour” exerted, or “spark” applied, by Mr Hronis was to instruct a member of Dreamstreet’s staff to create drop-down options within certain categories of the Opportunity Records. As Mr Hronis merely pre-populated the options as to the facts or information that employees and consultants could input and did not provide for a particular form of expression of the data within the CRM and/or the selection and arrangement of that data, Financepath submitted that Dreamstreet could not establish that any of the Dreamstreet Compilations are original literary works, created by Mr Hronis.

Consideration

283    Pursuant to s 32(1) of the Copyright Act, copyright will subsist in each of the Dreamstreet Compilations if:

(a)    each compilation is an original literary work that is unpublished; and

(b)    the author of each compilation was Mr Hronis (it being accepted that Mr Hronis was a qualified person at the time when the work was made for the purposes of s 32(1)(a) of the Copyright Act. While Financepath addressed its submissions to s 32(2) (which applies to published works), it accepted that Mr Hronis was a qualified person for the purposes of s 32(2)(d). That concession necessarily also applies to s 32(1) as both subsections use the same definition of “qualified person” found in s 32(4)).

284    Section 10(1) of the Copyright Act provides that a “literary work” includes “a table, or compilation, expressed in words, figures or symbols”. Section 22(1) of the Copyright Act provides that a reference to the time when a literary work was made shall be read as a reference to the time when the work was first reduced to writing or some other material form.

Whether the Dreamstreet Compilations are copyright works

285    The Dreamstreet Compilations contain a lot of facts and information about Dreamstreet’s customers and their actual or potential borrowings. They also contain information about aspects of Dreamstreet’s business, relevant to those customers, such as who the responsible person within Dreamstreet was, and how the customer came to be in contact with Dreamstreet. However, copyright does not protect facts or information. As French CJ, Crennan and Kiefel JJ stated in IceTV at [28], copyright “protects the particular form of expression of the information, namely the words, figures and symbols in which the pieces of information are expressed, and the selection and arrangement of that information”.

286    Literary works must be “original”, but that does not mean they must involve great creativity; rather, as explained by French CJ, Crennan and Kiefel JJ in IceTV at [33], they must not be copies (emphasis in original; citations omitted):

Originality for this purpose requires that the literary work in question originated with the author and that it was not merely copied from another work. … [O]riginality means that the creation (ie the production) of the work required some independent intellectual effort, but neither literary merit nor novelty or inventiveness as required in patent law.

287    It is important that neither the considerable commercial value of the facts and information contained in the Dreamstreet Compilations, nor the labour involved in recording the data in the CRM, be allowed to cloud analysis of whether Mr Hronis’s identification of content for several drop-down options within the Opportunity Records and/or his oversight of data entry constitutes some “independent intellectual effort” or “sufficient effort of a literary nature” so as to render him the “author”: IceTV at [33] (French CJ, Crennan and Kiefel JJ) and [99] (Gummow, Hayne and Heydon JJ). As Keane CJ observed in Phone Directories at [87], copyright subsists “only in an original literary work, that is to say, a literary work which originates in the intellectual effort of an individual”.

288    References to “independent intellectual effort” and “effort of a literary nature” (and like expressions) reflect the fact that the “author” of a literary work and the concept of “authorship” are central to the statutory protection given by copyright legislation: IceTV at [22]. Likewise, the traditional articulation of the “social contract” as balancing rewarding the authors of original literary works (by conferring statutory monopoly rights) with the benefits of making works available to the public recognises the value of incentivising the generation of works which record and express ideas in material form.

289    It is also relevant to have regard to where and how the originality is reflected in the literary work. For example, in IceTV, Gummow, Hayne and Heydon JJ accepted (at [152]) a submission that the originality of Nine’s compilation, being its Weekly Schedules (recording television programs to be broadcast at specific times and information about those programs) lay “not in the provision of time and title information, but in the selection and presentation of that information together with additional programme information and synopses, to produce a composite whole”. Their Honours also observed at [170], in assessing the quality of the time and title information that had been copied by IceTV in producing its guides, that “baldly stated matters of fact or intention” were “inseparable from and co-extensive with their expression”. While those observations were made in respect of whether reproduction of the time and title information by IceTV would constitute reproduction of a substantial part in a qualitative sense, in my view their Honours’ observations are also relevant in assessing whether particular input, said to render a person an “author” of a compilation, has the necessary qualities and degree of originality so as to attract copyright protection. As Emmett J observed in Victoria v Pacific Technologies (Australia) Pty Ltd (No 2) (2009) 177 FCR 61 at [23]: “When the expression of an idea is inseparable from its function it forms part of the idea and is not entitled to the protection of copyright.” See also Dynamic Supplies at [80] (Yates J) (affirmed by the Full Court in Tonnex International Pty Ltd v Dynamic Supplies Pty Ltd (2012) 99 IPR 31; [2012] FCAFC 162); and Telstra Corp Ltd v Phone Directories Co Pty Ltd (2010) 264 ALR 617; [2010] FCA 44 at [27] (Gordon J, as her Honour then was) (affirmed in Phone Directories).

290    While much skill and hard work may be involved in steps that are preparatory to the production of the material, which may demonstrate that the work is original (cf copied), “what is protected by the copyright monopoly is the form of a work and not the ideas which presage or prefigure it”: Phone Directories at [104]; see also at [111]–[112] (Perram J). Copyright does not protect facts or information. Rather, and as articulated by French CJ, Crennan and Kiefel JJ in IceTV at [28], it protects the particular form of expression of the information.

291    While copyright does not protect the fruits of industry per se, such industry may result in the generation of an object with a particular form of expression which copyright protects: IceTV at [47].

292    A work is made when it is first reduced to writing or “some other material form”: s 22(1) of the Copyright Act. Section 10 of the Copyright Act defines “material form” to include “any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation”. This definition is broad and was “intended to be far-reaching”: Microsoft Corporation v Business Boost Pty Ltd (2000) 49 IPR 573; [2000] FCA 1651 at [13]–[14] (Tamberlin J). There is no doubt that each of the compilations of the data constituted by the CRM, the Person Records in the CRM and the Opportunity Records in the CRM had material form, being a collection of digital records.

293    While recognising that Dreamstreet’s pleaded case included a contention that Mr Hronis was the author of the compilation of data in the CRM, it is helpful, in my view, to look at the Person Records and the Opportunity Records distinctly in the first instance, approaching each as a “work”. That is so for two reasons. First, and as noted above, Dreamstreet pleaded its case by reference to the reproduction of substantial parts of the Person Records and the Opportunity Records (cf the compilation of data in the CRM as a whole). Secondly, while Mr Hronis gave evidence (by affidavit) that various pro forma forms and correspondence were also contained in the CRM, which drew data from the CRM, that wider ambit of the CRM was not pleaded and nor, in any event, were those forms and correspondence in evidence. Accordingly, I must proceed on the basis that the CRM as a whole was relevantly constituted by the Person Records and the Opportunity Records, each of which compilation Dreamstreet claims was a copyright work. Nor, in any event, did Mr Hronis claim to be the author of those forms and correspondence.

Person Records

294    In my view, Mr Hronis was not the author of the compilation of the Person Records. His input did not go beyond instructing Connective to carry across data from the prior system to the Mercury system and generally instructing employees and contractors of Dreamstreet to enter data according to the pre-existing fields in the Mercury system, whose layout had already been determined by Connective. Neither of those activities involved Mr Hronis making, directing or fashioning (or making any contribution in fact) to the form of expression of the information comprising the Person Records, or the selection and arrangement of that information. Neither of those activities involved Mr Hronis making an “independent intellectual effort”, or a “sufficient effort of a literary nature”, to the particular form of expression of the work in question. The human intellectual effort associated with the Person Records was undertaken by Connective-related personnel in devising the Mercury system. Those efforts had nothing to do with Mr Hronis or Dreamstreet.

Opportunity Records

295    In relation to the Opportunity Records, as noted above, Mr Hronis’s input involved determining and overseeing the options to be included as drop-down menus in respect of some, but far from all, fields in the off-the-shelf Mercury system. It is, in my view, important to distinguish between Mr Hronis’s idea in deciding that the CRM should record matters such as the “Lead Source”, who at Dreamstreet was the “Administrator” of a loan, the “Status” of particular transactions, and the arrangement and expression of information in the CRM. As is clear from the authorities referred to above, copyright does not protect ideas or information; it protects the form of expression.

296    Approached in that way, the evidence did not establish that Mr Hronis was the source of the actual expression of the content of the drop-down menus.

297    Further, and in any event, in my view the copyright claim also fails on the basis that the contents of the drop-down menus do not record any expression of thought that is not merely co-extensive with the bare information recorded (much as the time and title information in IceTV was found to lack expression of thought). The drop-down menu options merely record bare quotidian facts (see IceTV at [27]) such as who at Dreamstreet was the “Admin” for a particular loan, what the source of a particular opportunity was (whether self-referred by the consultant, whether from a picnic or their relationship with the CFMEU), etc.

The compilation of data in the CRM

298    In circumstances where, as I have concluded, neither the compilation of Persons Records in the CRM nor the compilation of Opportunity Records in the CRM is a work in which copyright subsists, the compilation of the data in the CRM is likewise not a work in which copyright subsists.

Additional matters

299    While Mr Hronis stated in his evidence that the process which he oversaw in 2015 also included selecting the data fields and categories for the records to be included in the CRM, in the absence of any evidence as to the breadth of the options from which he chose in the default Mercury system, and in the absence of any evidence as to what Mr Hronis’s oversight entailed, I do not consider that this process of oversight assists Dreamstreet either in relation to the Person Records, the Opportunity Records or the compilation in the CRM as a whole. Such generalised evidence regarding oversight does not establish any, or any sufficient, input into the arrangement and selection of data or information in the CRM as to render Mr Hronis the “author” by reason of such oversight.

300    I should also note that, while Dreamstreet relied on the decision of Sackar J in Dargan (first instance), that decision is not of assistance as there was no analysis of how it was that the client lists were “copyright material” so as to fall within the definition of “Intellectual Property” in the contract at issue in that case. An argument that the list was not a literary work as it was computer generated was rejected on the facts. Here, it is not in dispute that the Dreamstreet Compilations were not wholly automated as they involved human data-entry. However, contrary to the tenor of Dreamstreet’s submissions, the mere fact that a compilation is not wholly automated does not mean it qualifies as a literary work protected by the Copyright Act.

301    Nor (cf Dreamstreet’s submissions) does Phone Directories at [86] assist it. All that Keane CJ said there was that his Honour rejected a submission that the respondents in that case could only prevail in the appeal if all the cases collected in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 (Desktop Marketing) were wrongly decided. In Phone Directories, Keane CJ rejected that submission on the basis that neither Desktop Marketing — which case was, I note, the subject of adverse treatment by the High Court in IceTV — or the cases referred to in Desktop Marketing, concerned automated processes. Chief Justice Keane’s rejection of the submission advanced does not relieve Dreamstreet of the need to establish that the Dreamstreet Compilations were literary works. I do not accept that there is any default position, established in law, that compilations of data established over many years are, ipso facto, literary works.

Whether Mr Weiss and Financepath infringed Dreamstreet’s copyright

302    While I have concluded that none of the Dreamstreet Compilations was a literary work protected under the Copyright Act, in case I am wrong in so concluding, I will briefly address whether Mr Weiss and Financepath reproduced substantial parts of the Dreamstreet Compilations, and did so without licence.

303    Section 14 of the Copyright Act provides:

(1)     In this Act, unless the contrary intention appears:

(a)     a reference to the doing of an act in relation to a work or other subject-matter shall be read as including a reference to the doing of that act in relation to a substantial part of the work or other subject-matter; and

(b)     a reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be.

(2)     This section does not affect the interpretation of any reference in sections 32, 177, 187 and 198 to the publication, or absence of publication, of a work.

304    The following principles apply in determining whether material copied is a substantial part of an original literary work:

(a)    It is necessary to consider not only the extent of what is copied, but also the quality of what is copied and the originality of the expression of the part which has been copied: IceTV at [30], [32], [37], [40] (French CJ, Crennan and Kiefel JJ), [52] (Gummow, Hayne and Heydon JJ). The more that the copyright work is simple or lacking in substantial originality, the greater the degree of taking will be needed before the substantial part test is satisfied: IceTV at [40] (French CJ, Crennan and Kiefel JJ). However, it is necessary to approach the analysis without proceeding as though the copied elements were separate literary works: IceTV at [157] (Gummow, Hayne and Heydon JJ).

(b)    The fact that that which has been copied did originate from the author does not, of itself, mean that it is a substantial part of the whole work: IceTV at [38] (French CJ, Crennan and Kiefel JJ). For example, copying “obvious or prosaic” information, or information which the authors had little choice in selecting, will not constitute the copying of material with sufficient originality to constitute the reproduction of a substantial part of a literary work: IceTV at [42], [43] (French CJ, Crennan and Kiefel JJ).

Mr Weiss’s conduct in making the Second and Third Downloads

305    Dreamstreet has pleaded that, by making the Second and Third Downloads on 11 May 2020, Mr Weiss reproduced a substantial part of the Opportunity Records in the CRM. Dreamstreet maintained this allegation despite accepting, in its submissions on the breach of contract case, that Mr Weiss was permitted to “use the information in the Second and Third Download[s] to prepare his resignation email” as “this was a permissible use of the Confidential Information in the [Weiss SA]”, and despite not pursuing any breach of contract allegation in respect of the making of those two downloads. It was not explained why, in light of those matters, the Weiss SA did not likewise license Mr Weiss to make the Second and Third Downloads, such that the making of those downloads would not infringe Dreamstreet’s alleged copyright.

306    In its submissions, Dreamstreet relied on the fact that the downloads were made without its knowledge or (express) authorisation, and contended that the onus is on Mr Weiss to establish the evidential foundation for any asserted licence. In reference to Mr Weiss’s explanation that he made the downloads to prepare his final invoice, the only point Dreamstreet made in its closing submissions was that Mr Weiss intended to retain the downloads after he ceased working for Dreamstreet and therefore was acting outside the scope of any licence Mr Weiss may have had from Dreamstreet.

307    I do not accept Dreamstreet’s contentions for the following reasons (which of course only arise if I am wrong and Dreamstreet has established that the compilation of Opportunity Records in the CRM was a literary work protected by the Copyright Act).

308    If any of the Dreamstreet Compilations was a literary work, it fell within the definition of “Intellectual Property” and also “Confidential Information” under the Weiss SA. The Weiss SA required Mr Weiss, on termination, to issue a final Tax Invoice to Dreamstreet: cl 5(e)(iii). Mr Weiss was also permitted by cl 7(a)(ii) to “use the Confidential Information of the Discloser but only in relation to this Agreement” and by cl 7(a)(iii) to use the Confidential Information for a variety of purposes which included (to paraphrase) to enable the consultant to exercise his rights or perform his obligations under the Weiss SA. I do not consider that the contractual authority for Mr Weiss to “use” certain information was confined to Mr Weiss consulting the information in the Mercury system, without copying it by downloading an extract from the CRM. Rather, “use” in the relevant context extended to the making of a copy for the permitted purposes.

309    I refer to, without repeating, my analysis of the proper construction of the Weiss SA in relation to whether or not Mr Weiss breached the Weiss SA by retaining the Second and Third Downloads. Consistent with that analysis, in my view, Mr Weiss was licensed by Dreamstreet to copy its Confidential Information, including its Intellectual Property, for purposes which extended to Mr Weiss setting out and pursuing claims to payments from Dreamstreet. That licence extended to making and retaining the Second and Third Downloads.

310    Further, and in any event, even if the licence were limited to reproducing Confidential Information (including Intellectual Property) for the purposes of preparing the final tax invoice, under s 36 of the Copyright Act, copyright is infringed by the doing of an act comprised in the copyright, when that act is done. If Mr Weiss was licensed to make the Second and Third Downloads when he made them, the act of reproducing the work was not done without licence. Dreamstreet did not cite any authority in support of its submission that an intention by Mr Weiss to retain the Second and Third Downloads meant that the act of reproducing the literary work was done without licence when it was done.

311    If, contrary to the foregoing, Mr Weiss’s conduct in making the Second and Third Downloads was not authorised, then the issue arises as to whether Mr Weiss reproduced a substantial part of one or more of the Dreamstreet Compilations (relevantly here the compilation of Opportunity Records).

312    The Third Download comprises the customer names and relevant details for six loans. Even accepting that six loans represented more than six individual customers, the proportion of the overall scale of the Dreamstreet CRM system, which Mr Hronis said contained records for 35,000 customers, was vanishingly small. While I accept that the question of substantial reproduction is not to be assessed purely from a quantitative viewpoint, a quantitative analysis (that is, the extent of what is copied) is still relevant (see IceTV at [30]). Further, assessing what was reproduced qualitatively, the Third Download contained data (bare facts) that were recorded in the default fields in the Mercury system with the following exceptions (where Mr Hronis oversaw the creation of drop-down options): Lead Source, Advisor and Supervisor, Admin and Status Notes. None of the information there reproduced reflected any intellectual input in expression by Mr Hronis. Further, as noted, the form and format of downloads from the CRM were determined by the Mercury system, and not by Mr Hronis. Accordingly, pursuant to IceTV, in my view the making of the Third Download did not involve reproducing a substantial part of any Dreamstreet Compilation.

313    Although the Second Download contained 96 Opportunity Records, that is again to be contrasted with Mr Hronis’s evidence that the CRM database contained 35,000 customers with Person and Opportunity Records. Again, the quantitative proportion is barely measureable. The records reproduced also contained bare data inserted into pre-determined fields for which Mr Hronis did not establish drop-down options, with the exception of the following: Lead Source, Advisor and Supervisor, Admin and Status Notes. As with the Third Download, none of the information there reproduced, or the form of its reproduction in a download, reflected any intellectual input in expression by Mr Hronis. Accordingly, pursuant to IceTV, in my view the making of the Second Download did not involve reproducing a substantial part of any Dreamstreet Compilation.

Financepath’s conduct by Mr Weiss’s actions

314    While Mr Weiss was an employee of Financepath when he created the First Download on 11 June 2020, he was not asked to perform that download by Mr Collard, Mr Attard or anyone else at Financepath, nor did he tell anyone at Financepath that he had performed that download.

315    A version of the First Download was created on Mr Weiss’s Chromebook when he opened and viewed the First Download. The Chromebook was Mr Weiss’s personal device; it was not a device issued to him by Financepath. Mr Weiss was not asked by Mr Collard, Mr Attard or anyone else at Financepath to open or view the First Download on this device, nor did he tell Mr Collard, Mr Attard or anyone else at Financepath that he had done so.

316    A version of the Second Download was also created when Mr Weiss opened the Second Download on the computer issued to him by Financepath on 17 September 2020. He was not asked by Mr Collard, Mr Attard or anyone else at Financepath to open and view the Second Download. Nor did Mr Weiss tell anyone at Financepath that he had done so.

317    Mr Weiss did not refer to any of the First Download, the Chromebook version of the First Download or the version of the Second Download made on 17 September 2020 in the course of his work for Financepath.

318    There is, accordingly, no basis on which to attribute Mr Weiss’s actions to Financepath so as to make good the case pleaded by Dreamstreet, namely that Financepath reproduced a substantial part of the Dreamstreet Compilations and thereby infringed its copyright in the Dreamstreet Compilations pursuant to s 36 of the Copyright Act.

319    Dreamstreet contended that it was enough to render Financepath liable that Mr Weiss was an employee of Financepath at the time he undertook the actions which Dreamstreet contended constituted reproductions of a substantial part of the Dreamstreet Compilations by Financepath. Dreamstreet relied on the decision of Besanko J in Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) (2008) 76 IPR 763; [2008] FCA 746 (Futuretronics No 2) in support of its contention that employers are, as a matter of course, held liable for infringing conduct undertaken by their employees. As Financepath pointed out in its submissions, Futuretronics No 2 concerned the assessment of damages in that case. The liability decision was Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2007] FCA 1621 (Futuretronics). Futuretronics does not assist Dreamstreet. In that case, the employer in question was centrally involved in the infringing conduct of his employee; the facts are a far cry from the present case where Financepath had nothing whatsoever to do with the conduct of Mr Weiss which is said to be conduct of Financepath. Unlike Futuretronics, here the conduct in question was not used in furtherance of Mr Weiss’s employment with Financepath.

320    Finally, the First Download only reproduced Person Records. I do not accept that (even putting to one side the small proportion of the records reproduced, which was about 1.3% as calculated by Financepath), the information reproduced constituted the expression of thought, as distinct from bare matters of fact which were co-extensive with their expression. Noting the observations of the High Court in IceTV at [170] (referred to above), the First Download accordingly did not involve the reproduction of a substantial part of a literary work, even when approached qualitatively. I have also already concluded that the Second Download likewise did not constitute the reproduction of a substantial part of any of the Dreamstreet Compilations.

Damages

321    I have concluded that Dreamstreet has not made out its copyright infringement claims on a number of bases. In the circumstances, it is not necessary to consider Dreamstreet’s claims for additional damages in the sum of $50,000 under s 115(4) of the Copyright Act.

MR WEISS’S CROSS-CLAIM

322    By his cross-claim, Mr Weiss contended that cl 13 of the Weiss SA, and his three month notice period, constituted unlawful restraints of trade. He also pursued unpaid upfront and trail commissions and sought repayment of what he contended were improper deductions of $4,400 (ex GST) made against commissions due to him.

Restraint claims

323    I have addressed above whether cl 13 constituted an unlawful restraint of trade. This issue was raised by Mr Weiss’s cross-claim, but has already been addressed.

324    Mr Weiss’s cross-claim also asserted that the three month notice period was an unlawful restraint of trade. It is not strictly necessary to address this as I have concluded that Mr Weiss was not in breach of the notice period in any event. Nevertheless, in case I am wrong in that conclusion, I do not consider that a three month notice period is an unlawful restraint of trade. Such a notice period constitutes a reasonable protection for Dreamstreet by enabling it to recruit and train a replacement credit consultant. Dreamstreet would also continue to be subject to its contractual obligations to provide leads and pay commissions during the notice period. While Mr Weiss contended that the three month notice period was an unfair term within the meaning of the ACL, he did not establish that the Weiss SA was a “small business contract” within the meaning of s 23(4) of the ACL. In any event, for the reasons given, I do not consider the term was unfair.

Unpaid commissions and improper deductions

325    By his cross-claim, Mr Weiss claimed unpaid upfront commissions and unpaid trail commissions. He also claimed repayment of the sum of $4,400 (ex GST) deducted from his commissions in respect of two customers, AM and BM.

Unpaid upfront commissions

326    Mr Weiss claimed unpaid upfront commissions totalling $3,930.85 (inc GST). Dreamstreet admitted that it owes Mr Weiss a debt in that amount, but, it appears from its Amended Defence to Cross-Claim, claims a right to set off those amounts against amounts it claims from Mr Weiss pursuant to cll 6(b), 6(c) and 6(f) of the Weiss SA.

Unpaid trail commissions

327    Mr Weiss has also claimed unpaid trail commissions for specified loans in respect of which he brought the lead to Dreamstreet, and not vice versa. Dreamstreet has admitted Mr Weiss’s entitlement to trail commission for some, but not all, of the customers and also disputes the amounts claimed by Mr Weiss.

328    For reasons which were delivered orally at the time, I granted leave for Mr Weiss to amend the amounts of the trail commissions he claimed (by adjusting the percentages claimed) and to update the annexure to his cross-claim to incorporate more up-to-date figures (being to April 2023, while the initial version calculated trail commissions only to January 2021). Dreamstreet did not seek to depart from the admissions it previously made about trail commissions to which Mr Weiss was entitled.

329    The admitted trail commissions were as follows:

The Court was not provided with up-to-date calculations of the quantum of these admitted unpaid trail commissions.

330    In respect of the other loans in question (being loans in respect of the customers AA and RA, CL and YL, ML and EL), Dreamstreet pleaded that Mr Weiss and Mr Hronis had agreed that, as the rate at which the loan was settled was low, no trail commission would be payable. In respect of two further customers (AM and BM), Dreamstreet alleged that Mr Weiss had provided services without due diligence, skill and care, which caused the customers to refinance in an untimely manner, and which detrimentally affected Dreamstreet’s reputation and good standing, in breach of various clauses of the Weiss SA.

331    After Mr Weiss amended his schedule of claimed trail commissions, Dreamstreet amended its defence to the cross-claim and withdrew the contention that Mr Weiss had caused the customers AM and BM to refinance, but added a claim that trail commission was only payable by Dreamstreet to Mr Weiss in respect of any loan if Dreamstreet and Mr Weiss reached agreement on the amount of trail commission to be paid in respect of the loan. It contended that Mr Weiss had not reached such an agreement with Dreamstreet in respect of the loans in question in the amounts he alleged.

332    The revised rates of commission claimed by Mr Weiss constituted 80% of the trail commission received by Dreamstreet. Before receiving details of trail commissions actually received by Dreamstreet in the context of these proceedings, Mr Weiss assumed he was receiving 80% of the trail commission being received by Dreamstreet; consultants at Dreamstreet were not provided with information about what commissions Dreamstreet was receiving. Mr Weiss learned during the proceedings that that was not the case. He also learned during the proceedings that, contrary to Dreamstreet’s pleading and Mr Hronis’s sworn affidavit, the customers AM and BM had not refinanced away from Dreamstreet at all.

333    The substantive issues that require resolution in relation to the cross-claim for trail commission are as follows. First, what was Mr Weiss’s entitlement to trail commission under the Weiss SA? Secondly, in respect of customers AA and RA, CL and YL, ML and EL, whether Mr Hronis and Mr Weiss agreed Mr Weiss was to receive no trail commission as the rate at which the loan was settled was low. Thirdly, in respect of AM and BM, whether Mr Weiss was disentitled to any trail commission by virtue of his conduct, as alleged by Dreamstreet.

Contractual entitlement to trail commissions

334    Clauses 2.3(d)(i)–(iii) of the Services Schedule to the Weiss SA provided as follows in respect of trail commissions (emphasis added):

(d)     (i)     The Consultant acknowledges and agrees that the Consultant shall

only be entitled to payment of a Trail Commission in respect of a Settled Loan that is from a Consultant Lead and the Consultant shall not be entitled to payment of any Trail Commission in respect of a Settled Loan that is from a Company Lead.

(ii)     The Trail Commission for a Settled Loan from a Consultant Lead is an amount equal to 80% of the trail commission that the Consultant and the Company agree upon in respect of each such Settled Loan and is dependent on the current rate we have, and depending on the product and will be paid on a monthly basis.

(iii)     (A)    No Trial [sic] Commission will accrue or is payable in respect

of loans during any period of the loan is in default;

(B)     Once any default is rectified, Trail Commission will commence again but will not be paid for the default period.

335    “Consultant Lead[s]” were leads introduced by the consultant (cf “Company Lead[s]”, which were leads generated or introduced by Dreamstreet to consultants).

336    The term “Trail Commission” was defined in the Services Schedule as “payment of a fee for Settled Loans made periodically, as distinct from an upfront or lump sum payment for Settled Loans”.

337    Clauses 2.3(d)(i)–(iii) of the Services Schedule were, like many aspects of the agreement, poorly drafted. Nevertheless, it is the Court’s task to determine, approached objectively, what the parties agreed.

338    Read literally, cl 2.3(d)(ii) is, at least at first blush, peculiar as it provides that Mr Weiss would be entitled to a trail commission equal to 80% of an amount which he and the company agreed. It is impossible to discern any commercial logic in a consultant and Dreamstreet negotiating, for each loan, a particular rate of trail commission and then Mr Weiss being paid 80% of that rate. As Dreamstreet submitted, if they were to agree anything on a loan by loan basis, they would agree a single rate to be paid to Mr Weiss, not a rate of which Mr Weiss would be paid 80%.

339    Mr Weiss’s evidence was that he never discussed rates of trail commission with Mr Hronis, either generally or for any particular loan. In his closing submissions, Mr Weiss submitted that no agreements were made with Mr Hronis with respect to trail commissions. Mr Weiss’s claim to trail commissions at the rate of 80% of the trail commission received by Dreamstreet was based on an argument that the only sensible construction that could be advanced of cl 2.3(d)(ii) was that he was to receive 80% of the trail commission received by Dreamstreet.

340    I have, not without some hesitation, determined that Mr Weiss’s construction must be rejected. First, the Services Schedule to the Weiss SA uses, in other places, a defined term “Corresponding Commission”, meaning the payment by the lender to Dreamstreet in respect of a loan for which Dreamstreet was obliged to make a corresponding payment to Mr Weiss. Had it been intended that Mr Weiss would be entitled to 80% of trail commissions received by Dreamstreet, one would expect cl 2.3(d)(ii) to have used this term. However, this point is not determinative as the Weiss SA’s use of defined terms is, as I have already observed, inconsistent (if not haphazard).

341    Secondly, even if not using the defined term “Corresponding Commission”, cl 2.3(d)(ii) could simply have referred to trail commissions received by Dreamstreet if it had been intended that Mr Weiss would receive 80% of trail commissions received by the company. Thirdly, the peculiar construction referred to above as lacking any commercial logic is not the only available construction of cl 2.3(d)(ii). The reference to the “trail commission that the Consultant and the Company agree upon in respect of each such Settled Loan and is dependent on the current rate we have, and depending on the product and will be paid on a monthly basis” refers, in my view, to a notional rate of trail commission. Rather than Dreamstreet locking itself in to pay Mr Weiss a fixed rate of trail commission, or a rate which depended only on the rate of trail commission it was receiving, Dreamstreet left it open to itself to negotiate the rates of trail commission that Mr Weiss was to receive.

342    In the absence of any negotiations in fact occurring, the effect is that Mr Weiss left it to Dreamstreet to determine the rate it was going to pay him. Accordingly, he is, in my view, entitled to the rates Dreamstreet in fact paid him, as evidenced by previous RCTIs.

343    While the construction I have preferred left Mr Weiss vulnerable to not receiving meaningful trail commissions for loans relating to customers he brought to Dreamstreet, that is a function of the parties’ failure to engage in the necessary negotiation of the notional rate on which the practical operation of cl 2.3(d)(ii) depended. Neither their failure to do so, nor Mr Weiss’s assumption that he was in fact receiving 80% of the trail commissions received by Dreamstreet, is to the point; those are post-contractual matters that cannot affect the construction of the contractual term in issue.

Whether there was any agreement that Mr Weiss would receive no trail commission in relation to the loans of AA and RA, CL and YL, and ML and EL

344    I do not accept Mr Hronis’s evidence that he and Mr Weiss expressly agreed Mr Weiss would not receive any trail commission in respect of the loans of AA and RA, CL and YL, or ML and EL. As discussed elsewhere, I do not consider that Mr Hronis was a witness of truth. Rather, his evidence was, in my assessment, constituted by whatever he considered useful to Dreamstreet’s case in the moment. I accept Mr Weiss’s evidence that there was no agreement reached for him not to receive any trail commission due to Dreamstreet receiving a low rate on these loans. However, in respect of these loans, other than in respect of the loan of ML and EL, nothing turns on my assessment of Mr Hronis’s credibility. That is because, as set out above, in the absence of an agreement as to the trail commission to be paid, Mr Weiss left it to Dreamstreet to determine the rate and Dreamstreet paid no trail commission at all on the loans of AA and RA, and CL and YL.

345    As is apparent from the RCTIs for each of the loans of AA and RA, and CL and YL, issued by Dreamstreet to Mr Weiss, no trail commission was ever paid. Accordingly, Mr Weiss has not made out his claim for unpaid trail commissions in respect of AA and RA, or CL and YL, as no rate of trail commission was ever set.

346    In respect of ML and EL, the couple took out two loans, being a loan of $636,000 which settled in December 2018, and a loan of $1.1 million, which settled on 3 May 2019. Mr Weiss’s claim for unpaid trail commission relates to the latter loan. The RCTIs in evidence show that trail commissions of $73.21 plus GST for June 2019 and $73.09 plus GST for July 2019 were paid to Mr Weiss. The RCTIs specify “0.08%” under the column headed “Rate”, but it is clear from the RCTIs that the trail commission paid was not equivalent to 0.08% of the principal of the loan. Nor was the rate paid to Mr Weiss 80% of the amount received by Dreamstreet; Dreamstreet received trail commission of $133.45 ex GST in June 2019 and $138.45 ex GST in July 2019. The rate of trail commission paid to Mr Weiss in June and July 2019 was the equivalent of 0.007% of the initial principal of the loan.

347    Mr Hronis stated that no further trail commission was paid after June and July 2019 because he and Mr Weiss discussed that the rate was too low and no trail commission would be paid. I reject Mr Hronis’s evidence. I prefer the evidence of Mr Weiss that he did not have any discussion with Mr Hronis to that effect. Mr Weiss’s evidence was that he sought and obtained Mr Hronis’s approval for the interest rate to be offered to the customers, but that he and Mr Hronis never discussed him not receiving a trail commission. Mr Weiss’s evidence is supported by the complaint he raised by email on 5 September 2019 in which he queried the failure to include trail commission for this loan. That complaint was raised shortly after Mr Weiss received the RCTI for August 2019. If Mr Weiss had, as Mr Hronis claimed, shortly before had a discussion with Mr Hronis in which he agreed that he would not be paid any further trail commissions, it would make no sense for him to have promptly issued a complaint querying the abrupt cessation of trail commission payments.

348    Accordingly, in my view, Mr Weiss has made out a claim to be paid trail commission on the ML and EL loan at the rate established by the June and July 2019 RCTIs, but not at the higher rate claimed by him.

The loans of AM and BM and Mr Weiss’s conduct in relation to them

349    While framed as a separate element of the cross-claim, it is convenient to address Mr Weiss’s claim to repayment of the deduction of $4,400 (ex GST) made against amounts due to him, as recorded in the RCTI for June 2019, issued around 4 July 2019. That RCTI simply recorded:

Deductions

[BM]     ($2200.00)

[AM]    ($2200.00)

350    In his evidence, Mr Hronis referred to notes contained in the CRM which record certain matters about which each of BM and AM were somewhat unhappy. According to the CRM notes, Dreamstreet organised a rate reduction for each of BM and AM, and (again according to the CRM notes) waived BM’s application fee of $500.

351    Mr Hronis stated, on oath, in one of his affidavits that:

In view of the complaints made by [AM] and [BM] about Mr Weiss’ poor communication, lack [of] explanation of the mortgage manager model and lender protection fee and the interest rates being different to what Mr Weiss had advised, Dreamstreet agreed to refund $2,200 to each of [AM] and [BM] to seek to address their complaints above.

352    There is no evidence that those amounts were in fact refunded to the customers. If they had been, they would have been recorded in the CRM. I am left with no conclusion other than that Mr Hronis’s evidence was false and given (at best carelessly) to justify the deduction of $4,400 (ex GST) from Mr Weiss’s commissions.

353    Mr Hronis also stated, on oath, that the services provided by Mr Weiss caused BM and AM to refinance. In fact, neither customer refinanced. While Dreamstreet submitted that Mr Hronis merely made a mistake in his evidence, I do not accept that explanation. In any case, even on the best case for Dreamstreet, this error shows a striking lack of care by Mr Hronis in relation to reviewing and swearing up to his affidavits. The impact of this evidence on Mr Hronis’s credibility remains notwithstanding that, at the end of the trial, Dreamstreet withdrew the pleaded allegation that the customers had refinanced.

354    In my view, there was no contractual basis upon which Dreamstreet was entitled to deduct $4,400 (ex GST) from Mr Weiss’s commissions. Even if, as Dreamstreet asserted, but Mr Weiss denied, his handling of the loans left something to be desired, the customers did not refinance. Nor did Dreamstreet in fact refund the monies which it sought to recoup from Mr Weiss. I also reject Dreamstreet’s claim that Mr Weiss agreed to the deductions. I accept Mr Weiss’s evidence that he contested the deductions and that at least one of the complaints made was explained by an administrative error having been made by another person at Dreamstreet when inputting interest rates.

355    It appears from the RCTIs that Dreamstreet did not at any stage pay Mr Weiss a trail commission in respect of the loans to BM and AM (not to be confused with other customers with the same surname, JM and NM). Accordingly, for the same reasons as set out in respect of AA and RA, and CL and YL above, I consider Mr Weiss has not made out his claim to trail commissions in respect of BM or AM.

356    By its Amended Defence to Cross-Claim, Dreamstreet pleaded a contractual entitlement to set off amounts owed by it to Mr Weiss against amounts owed to it in damages, equitable compensation, an account of profits, or additional damages under s 115(4) of the Copyright Act. The pleaded claim relied on cll 6(b), 6(c) and 6(f) of the Weiss SA. However, Dreamstreet made no submissions in support of this pleaded claim or how the various amounts it claimed would fit within the terms of those provisions of the Weiss SA (as to which I note, in any event, that the clawback claims enforce a contractual entitlement to have a sum paid to Dreamstreet, and do not constitute a liability of any kind arising from a breach of the Weiss SA by Mr Weiss, or any fraud or negligence by him: cf the terms of cl 6(b)). As Dreamstreet made no submissions on the point, I do not consider it is encumbent on the court to work through the strands of a pleaded claim that was not pursued at trial. In any event, cl 6(b) concerns a contractual indemnification whereas Dreamstreet pursued its claims by way of damages for breach of contract (cf enforcement of the contractual indemnity).

357    Finally, I note that cl 6(f) refers to the withholding of money due to Mr Weiss “during any period while the Company considers that …” and goes on to refer to various circumstances. Dreamstreet did not, by its evidence, seek to justify the withholding of amounts to which Mr Weiss was entitled on the basis that Dreamstreet held the necessary state of mind.

CONCLUSION

358    The parties are to submit a form of order that provides for declaratory relief and nominal damages in respect of the breaches of the Weiss SA that have been established, clawback in relation to the commissions associated with the MG and DC and JC loans, Mr Weiss’s entitlements to unpaid commissions, and repayment of the amounts improperly deducted in respect of AM and BM, in accordance with these reasons and which:

(a)    oblige Mr Weiss to delete any copies of the First Download from his computer devices;

(b)    oblige Mr Weiss, if requested by Dreamstreet, to make any of his computer devices containing copies of the First Download available to any third-party computer expert retained by Dreamstreet, at Dreamstreet’s cost, to forensically delete any copy of the First Download;

(c)    restrain Mr Weiss from using any copies of customer-related documentation stored on his devices in connection with assessing the ability of any such customer to service any loan, or to apply for loan finance or refinance;

(d)    address GST in relation to any payments (if necessary);

(e)    address any pre-judgment interest; and

(f)    otherwise dismisses the originating application and the cross-claim.

359    If the parties cannot agree orders, I will convene a case management hearing to resolve the orders. Any agreed form of order should be accompanied by a note that explains the approach taken to any GST and interest.

360    The parties are invited to reach a negotiated position on costs. I will otherwise permit the parties to make written submissions on costs and to indicate whether they are content for costs to be determined on the papers, or wish to make oral submissions.

Associate:

Dated:    23 June 2023