New Aim v Leung: supplier contacts, WeChat, and the reach of s 183

The Full Court has allowed New Aim’s appeal and confirmed that the identity and contact details of its 17 key Chinese suppliers were confidential information, that its former CCO breached his equitable and contractual obligations of confidence by disclosing them to a competitor, and — importantly — that s 183 of the Corporations Act 2001 (Cth) is not simply a statutory re-enactment of the equitable action for breach of confidence. Rather, it applies generally to information obtained in the relevant capacity – as a corporate officer or employee.

• What happened
• Why the 17 suppliers’ details were confidential
• The contractual obligation
• Section 183: information, not just confidential information
• The claims against Broers and Sun Yee

What happened

New Aim is a large Australian online retailer sourcing products from hundreds of suppliers in China. Mr Leung worked there for around ten years, ending up as Chief Commercial Officer. When he left in January 2021, Mr Leung declared a “moment” on WeChat, “I am determined to do better and work harder than before, and totally destroy what I built in the past 12 years”.

Mr Leung had not been given a corporate mobile phone by New Aim. As a result, he retained, on his personal phone in his WeChat contacts, the details of individuals associated with a number of New Aim’s suppliers. Between January and July 2021 he disclosed the details of contacts associated with 17 of those suppliers to Broers Group, a newly established online retail competitor set up by a Mr Chen and Mr Dai. The disclosures were typically made by sharing WeChat contacts. By July 2021, Mr Leung had become employed by Broers.

New Aim discovered through its Chief Operating Officer (COO) that Broers and another competitor, Sun Yee (of which Mr Chen was also a director), were selling products apparently identical to New Aim’s, using photographs sourced from New Aim’s own website. New Aim commenced proceedings in September 2021.

So far, this whole saga has had five rounds in court. A successful application for an interlocutory injunction; a first trial which was overturned on appeal[1] and a second trial on remitter, which was the decision under appeal.

By the time of the second trial, New Aim’s pleadings still alleged that the information about all of its suppliers was confidential. The primary judge dismissed all of New Aim’s claims essentially because New Aim had failed to establish that the identity and contact details of all its suppliers as at January 2021 was confidential information. But, although the pleadings had not been amended, it was clear [to the Full Court] that the case had narrowed in practice to the details of the 17 specific suppliers whom Mr Leung admitted he had disclosed to Broers.

The Full Court (Moshinsky, Thawley and Button JJ) allowed the appeal finding, first, that her Honour should also have addressed whether or not the information about the 17 suppliers was confidential information. Finding that particular information was confidential, as a result Mr Leung breached the equitable obligation of confidence, his contractual obligations and, s 183 of the Corporations Act.

Why the 17 suppliers’ details were confidential

The primary judge’s error was to analyse the confidentiality question only by reference to the broad pleaded class — all suppliers as at January 2021, including historical and underperforming ones — when the case had been opened, conducted, and closed by both parties on the basis that what mattered was the 17 specific suppliers whose details Mr Leung had actually disclosed.

Once attention was directed to those 17, the factors bearing on confidentiality looked quite different:

The suppliers were reliable and current. Unlike the broader class, which included historical suppliers and those dropped because of high fault rates or lack of profitability, the 17 suppliers were active, reliable suppliers of products suitable for the Australian market. Their contacts were disclosed to Broers precisely because Mr Leung regarded them as suppliers with which Broers should trade.

Finding them required substantial effort. It was common ground that identifying suppliers in China capable of supplying products suitable for the Australian market required effort and could take several months. New Aim led detailed evidence about its multi-step process for identifying, sampling, testing, and approving each supplier. The nine step process involved:

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

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

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

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

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

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

(g) Step 7 involved the Buying Team negotiating the terms of payment with the supplier.

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

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

New Aim’s General Manager – Channel and Category, Ms Ho, confirmed that process applied to each of the 17 suppliers specifically and exhibited over 12,000 pages of business records to support her evidence.

New Aim took steps to protect the information. Two measures stood out. First, New Aim white-labelled its products and allocated its own SKUs (Stock Keeping Units), which meant that competitors, purchasers, and others inspecting New Aim’s products could not identify the underlying suppliers. The Full Court accepted this was a strong indicator that New Aim treated supplier identity as confidential — and that employees in the Buyer Team (which Leung headed) must have known it. Secondly, access to the New Aim Purchasing System, which contained supplier information, was password-controlled. Mr Leung himself had discussed the need to restrict access further and had told Mr Huang (the COO) that he was concerned about the risk of an employee using commercially sensitive supplier information to assist a competitor after leaving.

At [111], the Full Court acknowledged that New Aim could have protected its interests better such as by providing Mr Leung with a company issued phone or imposing restrictions on his use of his personal phone. That did not gainsay, however, that it had taken steps to preserve the confidentiality of the relevant information and Mr Leung was personally aware of its confidential nature.

The industry treated supplier information as confidential. Both parties’ experts agreed that businesses in the e-commerce space importing from China generally kept supplier information confidential and took steps such as white-labelling to protect it.

The information was not Mr Leung’s general know-how. Mr Leung argued the information was just part of his general know-how which a person in his position would inevitably acquire over time.

Accepting that general know-how fell outside the scope of protectable confidential information, the Full Court held that was not this case. The specific information about the particular 17 suppliers was not information that an ordinary person of average intellgience and honesty would regard as knowledge “not readily separable from his general knowledge”.[2] There was no evidence Leung had memorised the contacts. Rather, they were stored in his phone in his WeChat app and the details were supplemented by remarks identifying the products they supplied. The information was readily identifiable and separable from the general body of Mr Leung’s know-how. At [119], their Honours said:

…. What the evidence establishes is that, for the benefit of Broers, he used knowledge acquired through his employment at New Aim as to which contacts were likely to be suitable and useful, together with the WeChat information he retained about those contacts, to connect Broers with the relevant suppliers. In that way, he used New Aim-derived supplier information to shortcut the process that would otherwise have been required to identify and access suitable suppliers. That use was more than the application of general skill or experience. It involved the deployment, for a competitor’s benefit, of specific supplier information, and means of contact or access, retained through his employment.

The respondents conceded that if the first three elements of the breach of confidence action (identified information, quality of confidence, receipt in circumstances importing an obligation of confidence) were established, the disclosure was a misuse.

The contractual obligation

Mr Leung’s contract of employment also included a general duty of confidentiality. Its terms did not specifically single out supplier details.

As the parties had conducted the case on the basis that any relief would be the same as the relief for breach of the equitable duty, it was unnecessary to explore whether or not equity would generally intervene where there was both a contractual obligation and an equitable obligation.

Accordingly, the Full Court held this obligation was also breached for the reasons that Mr Leung had breached his equitable obligation of confidence.

Section 183: information, not just confidential information

The Full Court then allowed New Aim’s appeal against the trial judge’s finding that s 183 of the Corporations Act failed because her Honour found that s 183 applied only to confidential information and, as already noted, her Honour held that Mr Leung had not used any confidential information.

Importantly, however, the Full Court did not allow the appeal just because the information was confidential. Rather, it ruled that s 183 applied to “information” and was not limited just to protecting confidential information.

Section 183(1) of the Corporations Act provides that a person who obtains information because they are or were a director, officer or employee of a corporation must not improperly use that information to gain an advantage for themselves or someone else, or to cause detriment to the corporation.

The Full Court explained at [124] that s 183 required three matters to be addressed:

(i) precise identification of the information said to have been obtained by the relevant person;

(ii) examination of whether that information was obtained because the person is or was a director, officer or employee of the corporation; and

(iii) examination of whether the person improperly used the information either: (a) to gain an advantage for themselves or someone else; or (b) to cause detriment to the corporation.

The Full Court pointed out that:

• Section 183 refers to “information” only;
• There are other provisions in the Corporations Act which refer specifically to “confidential information” where that type of information is intended – see s 1317AE and s 829B; and
• Section 183 was properly seen as statutory extension of the fiduciary duties of corporate officers and did not have its origins in confidential information. In that connection, the Full Court noted that the relevant fiduciary duties at common law ceased when the corporate officer’s position terminated. The statutory duty, however, continued after termination.

At [137] – [149], the Full Court carefully reviewed an earlier Full Court’s ruling in Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2009] FCAFC 2; 81 IPR 1, which has been taken as limiting s 183 to improper use of confidential information only. The Full Court considered that it had not been directly submitted to the Futuretronics Full Court that s 183 was limited to confidential information only. Rather, the Full Court considered at [149] that the Futuretronics Full Court should be understood as deciding that s 183 did not apply because the relevant information had not been improperly used.

Accordingly (at [148]:

Section 183 is expressly framed in terms of information obtained because of a particular corporate position. Improper use is assessed objectively according to the standards of conduct that would be expected of a person in the relevant position. What would be expected is determined from the viewpoint of a reasonable person. The question is: what would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case ….[3] (emphasis supplied)

In answering that question, the confidential nature of the information is relevant to the question of improper use, and the more confidential the information the easier it will generally be to establish impropriety, but it is not a threshold requirement for the provision to apply at all.

On the facts, the Full Court had no difficulty finding a contravention. Leung knew the supplier information was commercially valuable. He knew New Aim had taken steps to protect it. He had himself expressed concern about the risk of employees using such information after they left — and then proceeded to do exactly that. He disclosed the contacts of 17 suppliers to New Aim’s competitor in order to give that competitor a head-start, and to advance his own interests in relation to his new or prospective employment with Broers. That was an improper use of information obtained because of his position. As the Full Court put it, a reasonable person in Leung’s position — a departing CCO with ten years’ experience in New Aim’s supply chain — would have regarded doing what Leung did as a breach of the standards of commercial conduct expected of such a person.

The Full Court also noted that the impropriety was amplified by Leung’s suggestion to a Broers employee that Broers copy product images from New Aim’s website — something that, as the parties had already agreed, Broers and Sun Yee proceeded to do.

The claims against Broers and Sun Yee

New Aim brought derivative breach of confidence claims against Broers and Sun Yee. Those claims were dismissed at first instance as a consequence of the dismissal of the claim against Leung. The respondents sought to have them dismissed outright, contending that the inference that Mr Chen and Mr Dai knew — or were wilfully blind to the likelihood — that the information Mr Leung provided was confidential, was not available on the evidence.

The Full Court declined to dismiss the claims. The circumstances were sufficient to raise a rational inference of awareness or wilful blindness. Both Messrs Chen and Dai had known Leung for years and knew his history at New Aim. They were both aware of Leung’s WeChat “moment” declaring that he intended to “totally destroy what I built in the past 12 years”. Broers had followed Leung’s suggestion and copied New Aim’s product images. Whether the full inference should be drawn, in light of all the evidence, was a matter for determination on remitter. Accordingly, the Full Court remitted these claims for further hearing.

New Aim Pty Ltd v Leung [2026] FCAFC 49] (Moshinsky, Thawley and Button JJ, 20 April 2026)

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1. New Aim Pty Ltd v Leung [2023] FCAFC 67; 171 IPR 511. The principal error in the first trial was that the judge had focused on the location of the information rather than its nature and content.  ?
2. Citing Printers and Finishers Ltd v Holloway [1965] 1 WLR 1 at 6; RPC 239 at 256 (Cross J); Thomas Marshall (Exports) Ltd v Guinle [1979] Ch 227 at 246 (Megarry VC) and Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; 73 IPR 236 at [41].  ?
3. Citing R v Byrnes [1995] HCA 1; 183 CLR 501 at [25].  ?