Homeloan Refunds Pty Ltd ACN 104 659 243 v Universal Integrity Pty Ltd ACN 110 731 238
[2010] FCA 728
•8 July 2010
FEDERAL COURT OF AUSTRALIA
Homeloan Refunds Pty Ltd ACN 104 659 243 v Universal Integrity Pty Ltd ACN 110 731 238 [2010] FCA 728
Citation: Homeloan Refunds Pty Ltd ACN 104 659 243 v Universal Integrity Pty Ltd ACN 110 731 238 [2010] FCA 728 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, TRENT TSOA-LEE (ALSO KNOWN AS TRENTON TSOA-LEE AND AS TRENTON ALBERT TSOA-LEE JNR AND AS TRENTON ALBERT TSOA-LEE, KEYFACTS AUSTRALIA PTY LTD ACN 097 232 196 and MICHAEL TSOA-LEE (ALSO KNOWN AS MICHAEL LEE AND AS MICHAEL JOHN TSOA-LEE) File number: QUD 107 of 2010 Judge: DOWSETT J Date of judgment: 8 July 2010 Date of hearing: 8 July 2010 Place: Brisbane Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 8 Counsel for the Applicants: Mr C Jennings Solicitor for the Applicants: DLA Phillips Fox Counsel for the First and Second Respondents: Mr BF Katekar Solicitor for the First and Second 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 ApplicantREFUND HOME LOANS PTY LTD ACN 106 212 300
Second ApplicantAND: UNIVERSAL INTEGRITY PTY LTD ACN 110 731 238
First RespondentTRENT TSOA-LEE (ALSO KNOWN AS TRENTON TSOA-LEE AND AS TRENTON ALBERT TSOA-LEE JNR AND AS TRENTON ALBERT TSOA-LEE
Second RespondentKEYFACTS AUSTRALIA PTY LTD ACN 097 232 196
Third RespondentMICHAEL TSOA-LEE (ALSO KNOWN AS MICHAEL LEE AND AS MICHAEL JOHN TSOA-LEE)
Fourth Respondent
JUDGE:
DOWSETT J
DATE:
8 JULY 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
At a directions hearing held on 14 April 2010, I ordered that this matter be set down for trial on 26, 27 and 28 July 2010. At that stage I ordered that the first and second respondents file and serve their defences by 22 April 2010. A defence was filed on 23 April 2010 as appears from the court records, although it may be that it was filed later.
On 2 June 2010 the first and second respondents filed a notice of motion seeking orders for security for costs. On 28 May 2010 they had given notice to the applicants of their intention to do so. For reasons associated with the availability of the Court and the availability of counsel for the first and second respondents, there has been an unfortunate delay in arranging a hearing date. I proceed upon the basis that the application was made on 2 June 2010, and that any delay since that time should not be taken into account in a way which might be prejudicial to the success of the application for security.
The first question is whether or not the circumstances are such that an order for security ought be made. That depends primarily upon whether or not it can be said that there is reason to believe that the first and second applicants will be unable to pay the respondents’ costs in the event that the respondents are successful in their defence.
No evidence is led as to the pecuniary position of the first applicant. However, there is evidence concerning the second applicant. First, a company search discloses a number of charges in favour of Esanda and, in addition, a fixed and floating charge in favour of the Bank of Western Australia. There is no indication in the search as to the assets over which the charges have been granted. There is also no evidence as to amounts owing. It seems that such information was not available from the relevant search. That, to me, seems rather curious. There is also evidence that at about the same time, the parent company of both the first and second applicants gave a fixed and floating charge over its assets in favour of the Bank of Western Australia.
It is, I think, reasonable to infer that the assets and undertaking of the second applicant are charged in favour of the various chargees identified in the search and that most, if not all assets, are so charged. However the absence of any evidence as to the amount secured significantly limits the inferences that are available from this evidence. That matter is within the knowledge of the first and second applicants. They could, had they wished, have provided additional information which may or may not have led the first and second respondents to be reassured as to their capacity to satisfy any order for costs. There is also a report from Dun & Bradstreet which suggests that the second applicant can only be described as a significant credit risk. However, the actual basis for that assessment is not given.
In the circumstances, and without wishing to labour the point, although there is cause for further inquiry as to the financial position of the second applicant, I am not satisfied that there is a good reason to fear that an order for costs would not be satisfied. However I am rather more concerned with the delay (until 2 June 2010) which has occurred in bringing this application. I accept that the timeframe for the trial was unusually short, although parties cannot be heard to complain about that. On the other hand, I understand that it may have been difficult for the first and second respondents to make an early decision about such an application, given the unusual speed with which the matter is coming on for trial.
However I consider that if the matter was to be considered, it should have been considered at or before the time at which the defence was filed. At that stage, the first and second respondents committed themselves to trial. I would have thought that the question of security would have arisen at that stage and, certainly, that it should have arisen. In the context of this particular case, and the relatively short period of time between commencement of proceedings and the trial dates, any application for security should have been made prior to 2 June 2010 and, probably, at or about the time at which the defence was filed.
For that reason, I propose to decline the application. Although I would normally consider that the applicants should have an order for costs, in the unusual circumstances of this case it is appropriate that the order be that the costs be costs in the cause.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 10 September 2010
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