Yeh Chuk v Permeatex Australia Pty Limited [2005] FCA 493

FEDERAL COURT OF AUSTRALIA

Yeh Chuk v Permeatex Australia Pty Limited [2005] FCA 493 TRADE PRACTICES – Trade Practices Act 1974 (Cth) s 52 – misleading and deceptive conduct – where applicant agreed to advance money to Permeatex upon representations made by the director of Permeatex – new company with similar name incorporated without notice to applicant – applicant's moneys placed into account of Permeatec without notice – where representations were made prior to the incorporation of Permeatec – whether any representations were made regarding interest payable on moneys advanced – where the respondents did not attend the hearing or give any evidence or submissions – it is incumbent on the applicant to prove the elements of his or her case Trade Practices Act 1974 (Cth) s 52 Microsoft Corporation v TYN Electronics Pty Ltd (in liq) (2005) 63 IPR 137 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 YEH CHUK v PERMEATEX AUSTRALIA PTY LIMITED, PERMEATEC AUSTRALIA PTY LIMITED, LEETEX TECHNOLOGIES CO. LIMITED, CHAO LING CHIANG, CHI HENG LEE, YVONNE LINGTON AND GLORIA LEE NSD1064 OF 2004 BENNETT J 29 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1064 OF 2004

BETWEEN: YEH CHUK

APPLICANT

AND: PERMEATEX AUSTRALIA PTY LIMITED

FIRST RESPONDENT

PERMEATEC AUSTRALIA PTY LIMITED

SECOND RESPONDENT

LEETEX TECHNOLOGIES CO. LIMITED

THIRD RESPONDENT

CHAO LING CHIANG

FOURTH RESPONDENT

CHI HENG LEE

FIFTH RESPONDENT

YVONNE LINGTON

SIXTH RESPONDENT

GLORIA LEE

SEVENTH RESPONDENT

JUDGE: BENNETT J

DATE: 29 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

Background 1 This application, filed on 7 July 2004, claims damages flowing from representations and conduct which are alleged to be in contravention of s 51A, s 51AC and s 52 of the Trade Practices Act 1974 (Cth) ('the Act'). 2 On 29 July 2004, a notice of appearance was filed by solicitors on behalf of the first, second, fourth, sixth and seventh respondents ('the served respondents') and those respondents were legally represented at a directions hearing. 3 On 29 July 2004, the fourth respondent (Mr Chiang), the seventh respondent (Ms Lee) and the sixth respondent (Ms Lington) filed affidavits. On 30 August 2004, the solicitor for the served respondents filed in Court a notice of ceasing to act. Thereafter, there was no appearance by the served respondents despite their being notified by the applicant of directions and hearing dates and despite their being served with the applicant's supporting affidavits. 4 On 29 October 2004, I ordered substituted service on the fifth respondent. That was effected on 21 December 2004. On 7 December 2004, I ordered substituted service on the third respondent. That was effected on 21 December 2004. 5 The applicant, through his solicitors, provided written notice to each of the respondents of all interlocutory applications, subpoenae and orders, including orders listing the proceedings for hearing on 9 March 2005. 6 None of the respondents attended the hearing on 9 March 2005. The affidavits of Mr Chiang, Ms Lee and Ms Lington were not read. The evidence of the applicant, Mr Chuk, as contained in his affidavits, was unchallenged. I note and adopt, however, the following observation of Stone J in Microsoft Corporation v TYN Electronics Pty Ltd (in liq) (2005) 63 IPR 137 at 140: 'In the absence of the respondent, an applicant has the burden of proving the claims made in so far as they are not admitted, for example on the pleadings or by a failure to dispute a fact specified in a notice to admit facts issued under O18 r 2 of the Federal Court Rules. In doing so it is necessary for the applicant to call sufficient admissible evidence to discharge the evidentiary burden raised by the pleadings: MY Distributors Pty Ltd v Omaq Pty Ltd (1992) 36 FCR 578. In making its case, the applicant must be confined strictly to the claims made in the pleadings: Barker v Furlong [1891] 2 Ch 172 at 179. An applicant who has proved those claims is entitled to the relief claimed (so long as it is appropriate to the claims) and "to such other relief as is incidental hereto": Stone v Smith (1887) 35 ChD 188 at 189. It follows that an applicant whose evidence does not support the claims made, either in whole or in part, will to that extent be unsuccessful.' (emphasis added) 7 The case made against the respondents is not clear from the application and statement of claim, nor is the connection between the allegations and specific provisions of the Act. The pleadings raise claims of unconscionable conduct and unjust enrichment. They were abandoned during the course of the hearing. 8 The statement of claim also alleges breach of contract and "breach of personal guarantee". Claims were made as against the first and fourth respondents for repayment of the sum of $402,800 'either pursuant to the loan agreement or the Guarantee respectively'. As against the first, second, third, fourth, fifth, sixth and seventh respondents, there are claims for 'restitution in the amount of $402,800'. During the hearing, the applicant abandoned the claims against the third respondent, Leetex Technologies Co Limited ('Leetex'). Dr Keogh, counsel for the applicant, also conceded that the evidence did not establish any appropriate connection between Ms Lington and Ms Lee and the first or second respondents. It was conceded that no action lay against them. 9 Accordingly, the case as pressed relied upon representations by and conduct of Mr Chiang and the fifth respondent (Mr Lee) on their own behalf and on behalf of the first respondent, Permeatex Australia Pty Limited ('Permeatex') and the second respondent Permeatec Australia Pty Limited ('Permeatec').