Watt v Shepherd (No 3)

[2021] FCA 1670

FEDERAL COURT OF AUSTRALIA

Watt v Shepherd (No 3) [2021] FCA 1670

File number(s):

NSD 922 of 2019

Judgment of:

RARES J

Date of judgment:

13 December 2021

Catchwords:

CONSUMER LAW – relief – application for compensation order under ss 237 and 243 of the Australian Consumer Law – where respondents engaged in misleading or deceptive or unconscionable conduct inducing applicants to enter into franchise agreements and an agreement to assign trade receivables – whether compensation sum should take into account benefits applicants obtained under avoided franchise agreements  

Legislation:

Competition and Consumer Act 2010 (Cth) sch 2, ss 237, 243

Trade Practices Act 1974 (Cth)

Cases cited:

HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640

I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited (2002) 210 CLR 109

Marks v GIO Australia Holdings Limited (1998) 196 CLR 494

Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23

Watt v Shepherd [2021] FCA 561

Watt v Shepherd (No 2) [2021] FCA 826

Wyzenbeek v Australasian Marine Imports Pty Ltd (2019) 272 FCR 373

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

31

Date of hearing:

13 December 2021

Counsel for the Applicants:

Mr R Parsons

Solicitor for the Applicants:

Bray Jackson & Co

Counsel for the Respondent:

Mr C P O’Neill

Solicitor for the Respondent:

Colin Biggers & Paisley

ORDERS

NSD 922 of 2019

BETWEEN:

ESPIE IAN WATT

First Applicant

MAZZAWATTIE PTY LTD ACN 096 943 476 AS TRUSTEE OF SMSUT

Second Applicant

WATTABEAR PTY LTD ACN 148 915 262 (and others named in the Schedule)

Third Applicant

AND:

PHILLIP CHARLES SHEPHERD

First Respondent

MARK ROBERT STEIDLE

Second Respondent

RX HOLDINGS PTY LTD ACN 612 534 746 (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	RARES J
DATE OF ORDER:	13 DECEMBER 2021

UPON THE UNDERTAKING OF:

(a)THE SECOND APPLICANT BY ITS COUNSEL THAT IT WILL DO ALL THINGS NECESSARY WITHIN 14 DAYS ON ITS PART TO TRANSFER TO THE RESPONDENTS, OR AS THEY MAY JOINTLY DIRECT, ALL SHARES AND OPTIONS FOR SHARES IN THE CAPITAL OF THE THIRD RESPONDENT THAT IT HOLDS OR TO WHICH IT MAY BE ENTITLED; AND

(b)EACH OF THE APPLICANTS BY THEIR COUNSEL THAT THEY WILL DO ALL THINGS NECESSARY WITHIN 14 DAYS ON THEIR RESPECTIVE PARTS TO TRANSFER TO THE RESPONDENTS ALL SUCH SHARES AS THEY MAY HOLD IN THE CAPITAL OF THE THIRD RESPONDENT AS THE RESPONDENTS MAY JOINTLY DIRECT;

THE COURT ORDERS THAT:

1.It be declared that any assignment or agreement to assign to the third respondent and or the fourth respondent the debts due (as trade receivables) to the second applicant as trustee of the Snowy Mountains Services Unit Trust owing as at 30 June 2016 or at any other date or dates is void ab initio.

2.The respondents pay the sum of $58,418.03 to the first, fourth and fifth…