Enermet Pty Ltd v Holden [1998] QSC 173

3(/1-73 98 State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION AMBROSE J No 1678 of 1992 ENERMET PTY LTD (ACN 000 488 040) and RONALD WILLIAM HOLDEN BRISBANE .. DATE 06/08/98 JUDGMENT 1 1111' 1'1""1', The I.:m Courts, Gl'('I'1!C Strcd, Bris":1I1C. 0, ·tIl!)O REVISeD COP!=S ISSUED St:~t:s' Reporting Dumau Plaintiff Defendant Telcnholll': 1(7) J2-t7 -tJ(d) "':1'<: 1()7) .1217 ;:::=:,12 -- 1 of 4 -- 060898 mlm (Ambrose J) HIS HONOUR: In this case the plaintiff brings an action for equitable compensation for breach of fiduciary duty on the part of the defendant who at material times was employed by the plaintiff as a purchasing officer of electronic components for the business conducted by the plaintiff. Between 5 December 1989 to 22 September 1992 he supplied his 10 employer with goods acquired from a business which he ran personally. The employer was unaware of this on the material and after several years had elapsed discovered that the supplier of components for its business was really its purchasing officer trading under a firm name. Not merely but the purchasing equipment needed by the plaintiff in his own name and then on-selling it to the plaintiff at a significant markup. The material which I accept having regard to the admissions made . and having regard to the affidavit of "Je~-k ~"",~ ,/~~<:;c,,:> ,~, the operations manager i~~1',~3!'E~}Ji?i!lt1%~L).leads me to infer that in the relevant period to which I have referred the defendant by subterfuge really made a profit of $573,209.20 by purchasing under his business name goods at a cheaper price th~n he on-sold them to his employer. The period involved in this breach of fiduciary duty was one of two years and nine months and for the purpose of calculating the plaintiff st on the equitable compensation to which entitled to judgment I start at the mid point between the breach of duty which would be 5 June 1991 JUDGMENT 2 30 40 50 60 -- 2 of 4 -- 060898 mlm (Ambrose J) and calculate interest at 10 per cent per annum from 5 June 1991 to 6 August 1998. That is a period of seven years and 62 days. Interest of 10 per cent on the sum of $573,209.20 for that period is $410,983.14. The plaintiff appeared today by counsel, the defendant failed lO to appear. It is clear, and I accept the material contained in the affidavit of Lesley May King filed by leave today, that every effort has been made to notify him that the case was listed for today and I infer that he was so notified. HIS HONOUR: As I indicated, I am satisfied that on the material, particularly the affidavit material of Lesley May 20 King, that the defendant is well aware that the case was 30 listed for trial today. He has been kept informed by solicitors for the plaintiff of what was happening even though he has elected for some time not to have an address for service or to have legal representation. I am informed that the Rules of Court order 93 rule 12 have been complied 40 with and all the documents have been stuck up on the board. This is substantially established by the affidavit of Lesley May King which asserts formally that the documents have remained posted up in the Registry for a period of 14 days at least. I will come back and deal with that aspect of the 50 case shortly. Subject to any order that I might make as a result of further JUDGMENT 60 3 -- 3 of 4 -- 060898 mlm (Ambrose J) inquiries being made as to the keeping of the document stuck 1 up in the Registry, I give judgment for the plaintiff against the defendant in the sum of $573,209.20. I assess interest on the award and give judgment also for interest on that sum in the sum of $410,983.14. In total then I give judgment for the plaintiff against the defendant in the sum of $984,192.34. HIS HONOUR: I make an order dismissing the counterclaim of the defendant with costs. The defendant must pay the plaintiff's costs of and incidental to the action to be taxed and also the plaintiff's costs of and incidental to the defendant's counterclaim to be taxed. JUDGMENT 4 10 20 30 40 50 60 -- 4 of 4 --