Homeloan Refunds Pty Ltd v Universal Integrity Pty Ltd [2011] FCA 735

FEDERAL COURT OF AUSTRALIA

Homeloan Refunds Pty Ltd v Universal Integrity Pty Ltd [2011] FCA 735 Citation: Homeloan Refunds Pty Ltd v Universal Integrity Pty Ltd [2011] FCA 735

Parties: HOMELOAN REFUNDS PTY LTD (ACN 104 659 243) and REFUND HOME LOANS PTY LTD (ACN 106 212 300) v UNIVERSAL INTEGRITY PTY LTD (ACN 110 731 238) and TRENT TSOA-LEE (ALSO KNOWN AS TRENTON TSAO-LEE AND AS TRENTON ALBERT TSOA-LEE JNR AND AS TRENTON ALBERT TSOA-LEE)

File number: QUD 107 of 2010

Judge: DOWSETT J

Date of judgment: 22 June 2011

Date of hearing: 22 June 2011

Place: Brisbane

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 4

Counsel for the Applicants: Mr PC O'Shea SC and Mr T Bradley

Solicitor for the Applicants: Thomsons Lawyers

Counsel for the Respondents: Mr M Cooke

Solicitor for the Respondents: Etienne Lawyers

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 107 of 2010

BETWEEN: HOMELOAN REFUNDS PTY LTD (ACN 104 659 243)

First Applicant

REFUND HOME LOANS PTY LTD (ACN 106 212 300)

Second Applicant

AND: UNIVERSAL INTEGRITY PTY LTD (ACN 110 731 238)

First Respondent

TRENT TSOA-LEE (ALSO KNOWN AS TRENTON TSAO-LEE AND AS TRENTON ALBERT TSOA-LEE JNR AND AS TRENTON ALBERT TSOA-LEE)

Second Respondent

JUDGE: DOWSETT J DATE: 22 JUNE 2011 PLACE: BRISBANE

REASONS FOR JUDGMENT 1 The first and second applicants are, either directly or indirectly, engaged in the mortgage broking business. The first respondent is engaged in the same business. The second respondent is the director of the first respondent. In the course of the first respondent's business it published various statements and information on a website which it operated. The applicants take issue with the correctness of the information there published, asserting that it is misleading and deceptive in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the "Act"). 2 The matter has been hotly contested, but substantial agreement has now been reached between the parties. This morning the applicants sought leave to amend their application in accordance with exhibit 1. I allowed the amendment. I was then told that certain of the matters in dispute were to be admitted by the respondents. The allegedly misleading and deceptive material is particularised in paras 1(a), 1(ab), 1(b) and 1(c) of the application. The matters alleged in paras 1(a) and 1(ab) are admitted by the respondents. There is no admission made in connection with the matters pleaded in paras 1(b) and 1(c). However the respondents have tendered undertakings to the court which effectively require them to take down the allegedly infringing material and not to republish it on the internet. The applicants are satisfied with the undertakings in so far as concerns future conduct by the respondents and do not seek injunctive relief. They also do not press any claim to damages. However they seek findings that the conduct pleaded in paras 1(b) and 1(c) was inconsistent with the statute. They, in effect, submit that they should be granted declaratory relief in vindication of the proceedings. 3 In my view the combined effect of the admissions and the undertakings is effectively to quell the dispute between the parties. In Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, the High Court considered the circumstances in which a court of equity would grant declaratory relief, notwithstanding the fact that no further relief was sought. In general, the observations made by Gibbs J (as his Honour then was) in that case, are treated as authoritatively stating the relevant considerations where such a situation arises. At pp 437 and 438, his Honour said: It is neither possible nor desirable to fetter the broad discretion given by s. 10 [of the Equity Act 1901 (NSW)] by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd , (1921) 2 AC 438, at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration: "The question must be a real and not a theoretical question ; the person raising it must have a real interest to raise it ; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v. Egbuna (1964) 1 WLR, at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that, there is no legal restriction on the award of a declaration." 4 In my view, the agreement reached between the parties has deprived them of the necessary interest referred to by Gibbs J. In those circumstances, the proper exercise of the discretion is to decline declaratory relief. I note the admissions of fact and the undertakings in the draft order. I make orders in terms of the draft. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.