Peter Williamson Pty Ltd v Capitol Motors Ltd

Re: PETER WILLIAMSON PTY. LTD.
And: CAPITOL MOTORS LTD.
No. G. 191 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Franki J.

CATCHWORDS

Trade Practices - resale price maintenance - refusal to supply goods - recommended price - whether recommended price was price specified by supplier as the price below which the goods are not to be sold - standard of proof.

Trade Practices Act 1974 ss.4F, 48, 96(1) and (3) (d) (ii), 100(1)

HEARING

SYDNEY

#DATE 20:5:1982

ORDER

1. The application is dismissed.

2. The applicant pay the respondent's costs.

JUDGE1

The applicant, Peter Williamson Pty. Limited, a retailer of motor vehicles, was appointed by the respondent, Capitol Motors Limited, as a dealer in BMW motor vehicles in the Liverpool and certain adjacent districts by an agreement of 1 January 1981.

BMW motor vehicles are imported into Australia by BMW Australia Ltd. and the respondent is the distributor of BMW vehicles and parts in New South Wales.

Clause 14(1) of the agreement provided that the applicant's appointment should continue until terminated by the applicant or the respondent giving to the other 30 days notice in writing of its desire to terminate the appointment and clause 14(2) provided for termination upon certain specified events.

By letter of 2 December 1981 the respondent purported to give notice to the applicant under clause 14(1) of the agreement and, after correspondence between the solicitors for the parties, a further notice was given on 16 December 1981 whereby the respondent gave notice "of its desire to terminate the Dealer's Appointment, such termination to have effect 30 days after receipt of this notice". The applicant pleaded that this notice was no more than a purported termination but the respondent pleaded that the agreement was validly and effectively terminated by the letter of 16 December 1981. The present action was commenced on 21 December 1981 and on 5 January 1982 the respondent, without prejudice and without admissions, agreed to continue to supply BMW motor vehicles, parts and accessories until the determination of the action or further order.

The applicant pleaded that the respondent threatened to withhold the supply of BMW motor vehicles, parts and accessories in contravention of s.48 of the Trade Practices Act 1974, ("the Act") which prohibits a corporation from engaging in the practice of resale price maintenance. Acts constituting engaging in resale price maintenance are set out in s.96 of the Act. I set out s.96(1) and (3)(d)(ii):

"96. (1) Subject to this Part, a corporation (in this section called 'the supplier') engages in the practice of resale price maintenance if that corporation does an act referred to in any of the paragraphs of sub-section (3). . . .

(3) The acts referred to in sub-sections (1) . . . are the following: . . .

(d) the supplier withholding the supply of goods to a second person for the reason that the second person-

(i) . . .

(ii) has sold, or…