King & Wood Mallesons

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Contract law update: Gold and Copper Resources Pty Ltd v Newcrest Operations Ltd [2013] NSWSC 281

In this case, the NSW Supreme Court considered whether an equitable duty of confidence could sit alongside written confidentiality agreement, so as to make available equitable remedies (such as an account of profits) that would not be available for a contractual breach of confidence.

The Court in this case found that the written confidentiality agreement between the parties, which included an ‘entire agreement’ clause, left no room for a separate equitable duty of confidence to operate. Accordingly, even though information had been disclosed in breach of confidence, the only remedies available for the plaintiff were common law contractual remedies.

If the parties to a confidentiality agreement want to retain the flexibility to bring breach of confidence claims in equity as well as in contract, then it is important that they make an allowance for this in the agreement (for example, by including a provision that makes clear that the agreement is not intended to exclude rights that may otherwise arise at law or in equity)…

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Level 61, Governor Phillip Tower
1 Farrer Place
Sydney
NSW 2000
Australia
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