Green Gold Energy Pty Ltd v Trina Solar Investment Pte Ltd

1. [1]

   Green Gold Energy Pty Ltd (GGE) seeks an order under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) that issues of pecuniary relief be determined separately, after the determination of all other issues in the proceedings. Its application came before me in the motions list on 5 December 2025, where the parties indicated there was no opposition to GGE’s proposed orders and the motion could be determined on the papers.

2. [2]

   In these proceedings, GGE seeks a range of relief in relation to alleged breaches of obligations of confidentiality (both contractual and equitable) owed by the defendants. GGE develops, constructs and operates solar and sustainable energy projects. It identified two lots of land near the Davenport Electrical Substation in Port Paterson, South Australia, as a suitable site for the development of such a project. It contends that, through its investigations, it obtained confidential information about the site which it disclosed to the defendants during discussions regarding a potential joint development. It alleges that the defendants misused that information, including by one of the defendants now pursuing its own solar energy development near the site. It claims, among other things, equitable compensation and an account of profits for breach of confidence, and damages for breach of non-disclosure agreements it entered with various of the defendants.

3. [3]

   Rather than identifying with any particularity the issues to be determined at trial, GGE’s motion seeks an order that the assessment and quantification of damages and any account of profits be determined “separately and subsequently to the determination of all other issues in the proceedings”. In its submissions, GGE defined those “other issues” as:

   1. (1)

      Issue 1: the nature and extent of the obligations of confidence owed by the defendants to GGE;

   2. (2)

      Issue 2: whether the information disclosed by GGE to the defendants was confidential information;

   3. (3)

      Issue 3: whether the defendants have misused or procured the misuse of confidential information; and

   4. (4)

      Issue 4: whether GGE is entitled to declaratory or injunctive relief.

4. [4]

   GGE contends that separate determination of pecuniary relief is appropriate because: (a) it will involve additional discovery and evidence, both lay and expert; (b) no common issues of credit would arise; (c) it will shorten the time required for discovery, evidence and the hearing.

5. [5]

   The primary motivation for the application appears to be a concern of wasted costs should GGE prepare its case on damages or compensation but fail to establish any (or any significant) misuse of confidential information. GGE says that issues 1 to 3 are dispositive, and if they are decided adversely to it, “the Court would not be required to decide the issue of monetary relief”.

6. [6]

   I am not persuaded that the proposed separate determination is appropriate. Further, it will not necessarily achieve the costs savings contended for by GGE for the following reasons.

7. [7]

   The starting point is that all issues should be decided at one time: Tallglen v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141 (Giles CJ in Comm D). The power to order separate determination of a question should be approached with caution: Perre v Apand Pty Ltd (1999) 198 CLR 180 at [436] (Callinan J), particularly having regard to the potential for fragmentation and delay in the event of any appeal: see eg Forrest v Yuncken Builders & Project Managers Pty Limited [2025] NSWSC 1054 (Hammerschlag CJ in Eq).

8. [8]

   Further, as a matter of general practice, trial judges are encouraged to determine all issues to assist the appeal process and obviate the need for a retrial: Prince Alfred College Inc v ADC (2016) 258 CLR 134 at [113] (French CJ, Kiefel, Bell, Keane and Nettle JJ). Even if the identified issues were decided against GGE at trial, absent an order for separate determination, the trial judge may nevertheless be required to make a contingent assessment of damages or compensation in the event of an appeal.

9. [9]

   Here, the prospect of an appeal presents a real and serious risk of bifurcation and delay and tells against making the order sought. The parties do not propose the preliminary determination of a discrete issue or question, which will either dispose of the proceedings as a whole or encourage resolution of the balance of the proceedings. Nor do they propose an undertaking not to take matters on appeal until issues of monetary relief have been determined: see eg CIMIC Group Limited v AIG Group Limited [2022] NSWSC 999 at [16]. Rather, they propose to proceed with a trial of the universe of factual and legal issues between them, save for the quantification of monetary relief. The risk of an appeal in those circumstances is obvious, including where there appears to be a dispute on the pleadings as to whether the alleged equitable duties of confidence could arise at all as a matter of law, having regard to the pleaded contractual arrangements between the parties.

10. [10]

    Another related motivator appears to be that the assessment of pecuniary relief will be complicated; GGE is pursuing a joint development with a third party, which is still subject to a completion of sale and approval process before the development can proceed. GGE submits that “multiple counterfactuals” will need to be considered to assess the impact of this development on the amount of any damage sustained by GGE. But complexity of a plaintiff’s damages case does not necessarily mean that that issue ought to be determined separately. I am also not satisfied that it is necessarily the case that the same witnesses will not be required to give evidence about loss allegedly suffered by GGE.

11. [11]

    The quantification of pecuniary relief may be appropriate for a referral; the parties ought to consider whether that is their preferred approach and if so, seek orders. I do not consider a referral would present the same risk of bifurcation as the proposed separate determination.

Orders

1. [12]

   GGE’s notice of motion will be dismissed with each party to bear their own costs, because the defendants consented to the relief sought in the motion.

2. [13]

   I make the following orders:

   1. (1)

      The plaintiff’s notice of motion filed on 8 November 2025 is dismissed.

   2. (2)

      Each party is to bear their own costs of the motion.