Dreamstreet Lending Pty Ltd v Weiss (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 23 June 2023
• Neutral Citation: [2023] FCA 684
• Date: 23 June 2023
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Dreamstreet Lending Pty Ltd v Weiss (No 2) [2023] FCA 684

File number(s):	VID 638 of 2020
Judgment of:	BUTTON J
Date of judgment:	23 June 2023
Catchwords:	CONTRACT – contractual interpretation – breach of contract – services agreement between consultant and mortgage broking business – where applicant claimed consultant breached notice period clause – where applicant claimed consultant breached an exclusive service obligation – where applicant claimed consultant breached confidentiality obligations – where consultant made and retained various downloads of customer-related information from the business’s customer relationship management (CRM) system – applicant waived compliance with notice period – applicant not ready and willing to perform its obligations – first respondent breached exclusive service obligation by signing employment contract with another mortgage broking business during term of services agreement – first respondent breached confidentiality obligations by making one of the downloads of confidential information from CRM system – first respondent breached confidentiality obligations by using some other customer information – no loss or damage suffered by applicant – nominal damages awarded ; CONTRACT – services agreement – restraint of trade clause – where first respondent prohibited from soliciting, canvassing or approaching a client, customer or patron of the company or any group company – where first respondent prohibited from interfering directly or indirectly with the relationship between the company or any group company and its clients – whether restraint clause was reasonable – whether restraint clause was severable – whether restraint clause included leads generated by the company and the consultant – restraint clause found to be unreasonable and unenforceable ; CONTRACT – where services agreement provides for clawback of commission payments made to consultant by mortgage broking business when the lender requires repayment of the corresponding commission – whether business is entitled to clawback certain commission payments – whether there was evidence that the lender in fact demanded repayment of the corresponding commission – applicant entitled to clawback in respect of some customers only ; CONTRACT – contractual interpretation – cross-claim for commissions owed under a services agreement – cross-claim for repayment of improper deductions under a services agreement – whether payment of commissions under services agreement depended on amounts being agreed by parties to the contract – cross-applicant entitled to payment of some trail commissions – cross-respondent made improper deductions under services agreement ; TORT – economic torts – tort of inducement or procurement of breach of contract – failure to satisfy all elements of the tort – second and third respondents not found to have had the requisite knowledge and intention to procure breach of contract – no loss or damage suffered by the applicant ; COPYRIGHT – alleged infringement of copyright in compilations of records in CRM – whether copyright subsisted in the compilation of records in the CRM – whether test for originality is met – whether respondents infringed copyright – whether there was a license to use the copyright in relation to a services agreement – whether an employee’s conduct that was alleged to infringe copyright can be attributed to their employer – no copyright found to subsist in the compilations of records in the CRM – no breach of copyright by the employee – no breach of copyright attributable to the employer
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) s 23 Copyright Act 1968 (Cth) ss 10, 14, 22, 32, 36, 115
Cases cited:	Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26 Arnold v Britton [2015] AC 1619 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Bridge v Deacons [1984] AC 705 Butt v Long (1953) 88 CLR 476 Coloca v BP Australia Ltd [1992] 2 VR 441 Commonwealth v Chubb Security Australia Pty Ltd [2004] NSWCA 77 Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220 Dargan Financial Pty Ltd v Isaac [2017] NSWSC 1077 Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (2011) 91 IPR 488 Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 Findex Group Ltd v McKay [2020] FCAFC 182 Foran v Wight (1989) 168 CLR 385 Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) (2008) 76 IPR 763; [2008] FCA 746 Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd [2007] FCA 1621 Gibb-Maitland v The Perpetual Executors Trustee & Agency Co (WA) Ltd (1947) 74 CLR 579 Global Brand Marketing Inc v Cube Footwear Pty Ltd (2005) 65 IPR 44; [2005] FCA 479 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 I F Asia Pty Ltd v Galbally (2003) 59 IPR 43; [2003] VSC 192 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 IceTV v Ross [2007] NSWSC 635 Informax International Pty Ltd v Clarius Group Ltd (2012) 207 FCR 298 Isaac v Dargan Financial Pty Ltd (2018) 98 NSWLR 343 Just Group Ltd v Peck (2016) 344 ALR 162; [2016] VSCA 334 Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449 LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 Lindner v Murdock’s Garage (1950) 83 CLR 628 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (2010) 383 ALR 577; [2010] NSWCA 268 Microsoft Corporation v Business Boost Pty Ltd (2000) 49 IPR 573; [2000] FCA 1651 Milne v Sydney Corporation (1912) 14 CLR 54 OBG Ltd v Allan [2008] 1 AC 1 Polyaire Pty Ltd v K-Aire Pty Ltd [2003] SASC 41 Sealed Air Australia Pty Ltd v Aus-Lid Enterprises Pty Ltd (2020) 375 ALR 324; [2020] FCA 29 Short v City Bank of Sydney (1912) 15 CLR 148 State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd (No 2) (2021) 164 IPR 420; [2021] FCA 137 Telstra Corp Ltd v Phone Directories Co Pty Ltd (2010) 264 ALR 617; [2010] FCA 44 Telstra Corporation Ltd v Phone Directories Company Pty Ltd (2010) 194 FCR 142 Tonnex International Pty Ltd v Dynamic Supplies Pty Ltd (2012) 99 IPR 31; [2012] FCAFC 162 Tullett Prebon (Australia) Pty Ltd v Purcell (2008) 175 IR 414; [2008] NSWSC 852 Victoria v Pacific Technologies (Australia) Pty Ltd (No 2) (2009) 177 FCR 61 ; Sir Kim Lewison and David Hughes, The Interpretation of Contracts in Australia (Lawbook Co, 2012)
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	360
Date of hearing:	20 to 23 March 2023 4 April 2023

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