FEDERAL COURT OF AUSTRALIA
Australian Competition & Consumer Commission v Top Snack Foods Pty Ltd [1999] FCA 752
TRADE PRACTICES – misleading and deceptive conduct – application by Australian Competition & Consumer Commission for declarations and injunctive relief and on behalf of persons claiming to have suffered loss – whether reasonable grounds for making representations – sale of confectionery and snack food franchises – Trade Practices Act 1974 (Cth) ss 51A, 52, 80, 87(1A) and (1B)
DAMAGES – damages under Trade Practices Act 1974 (Cth) - not limited by analogy with contract, tort or equitable compensation – full effect given to the language of the sections – capital lost – unrewarded labour – interest on financing – anxiety – whether injunctive relief appropriate – public interest
WORDS AND PHRASES – “franchise”, “trials”, “public interest”
Trade Practices Act 1974 (Cth) ss 51A, 52, 80, 87(1A), 87(1B)
Marks v GIO Australia Holding Limited (1998) 158 ALR 333, applied
Gates v City Mutual Life Assurance Limited (1986) 160 CLR 1, citedCut Price Deli v Jaques (1994) 49 FCR 397, (1994) 126 ALR 413, followed
Netaf Pty Ltd v Bikane Pty Ltd (1990) 26 FCR 305, (1990) 92 ALR 490, followed
Collings Construction Co Pty Ltd v Australian Competition and Consumer Commission (1998) 152 ALR 510, cited
Humphries v TWT Ltd (1993) 120 ALR 693, citedTrade Practices Commission v Optus Communications Pty Ltd (1996) ATPR 41-478, cited
AUSTRALIAN COMPETITION & CONSUMER COMMISSION v
TOP SNACK FOODS PTY LIMITED, GEORGE MANERA, NICHOLAS KRITHARAS, SELINA MANERA, ADWAY HOLDINGS PTY LTD AND NICK KRITHARAS HOLDINGS PTY LTD.
NG 782 OF 1996
TAMBERLIN J
SYDNEY
4 JUNE 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 782 OF 1996
BETWEEN:
AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
ApplicantAND:
TOP SNACK FOODS PTY LIMITED
First RespondentGEORGE MANERA
Second RespondentNICHOLAS KRITHARAS
Third RespondentSELINA MANERA
Fourth RespondentADWAY HOLDINGS PTY LTD
Fifth RespondentNICK KRITHARAS HOLDINGS PTY LTD
Sixth Respondent
JUDGE:
TAMBERLIN J
DATE:
4 JUNE 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This proceeding arises out of the marketing of a franchise scheme to prospective “distribution agents”. The scheme involves the distribution to commercial and industrial sites of boxes of “snack food” such as potato crisps, chocolate bars and other similar snack products. The applicant, the Australian Competition and Consumer Commission (“ACCC”) contends that during the marketing and operation of the scheme, the respondents engaged in or were involved in conduct that was misleading and deceptive in contravention of the Trade Practices Act 1974 (Cth) (“the TPA”).
The ACCC brings these proceedings pursuant to ss 80, 87(1A) and (1B) of the TPA alleging conduct in contravention of ss 51A, 52 and 59. The ACCC sought declarations against the first to fourth respondents, together with orders restraining the respondent companies, Top Snack Foods Pty Ltd (“Top Snack”), Adway Holdings Pty Ltd (“Adway”) and Nick Kritharas Holdings Pty Ltd (“N K Holdings”) from continuing to…
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- [1999] FCA 752
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