World Brands Management Pty Ltd v Brazin Limited
[2005] FCA 1673
•7 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
World Brands Management Pty Ltd v Brazin Limited [2005] FCA 1673
COURTS AND JUDGES – jurisdiction – claim of misleading and deceptive conduct – pleaded in the alternative to breach of contract – whether misleading and deceptive conduct claim ever likely to succeed – whether Court has jurisdiction – whether proceeding should be transferred to Supreme Court of Victoria
Trade Practices Act 1974 (Cth) ss 52, 86(2), 86A
WORLD BRANDS MANAGEMENT PTY LTD (ACN 093 738 704) v BRAZIN LIMITED (ACN 006 624 228) AND GHETTO SPORT AND STREET PTY LTD
(ACN 079 826 823)
VID 1243 of 2005GRAY J
7 NOVEMBER 2005
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1243 of 2005
BETWEEN:
WORLD BRANDS MANAGEMENT PTY LTD
(ACN 093 738 704)
APPLICANTAND:
BRAZIN LIMITED
(ACN 006 624 228)
FIRST RESPONDENTGHETTO SPORT AND STREET PTY LTD
(ACN 079 826 823)
SECOND RESPONDENTJUDGE:
GRAY J
DATE OF ORDER:
7 NOVEMBER 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The proceeding be transferred to the Supreme Court of Victoria;
2.The costs of both parties, incurred in this Court, be reserved to the Supreme Court of Victoria.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1243 of 2005
BETWEEN:
WORLD BRANDS MANAGEMENT PTY LTD
(ACN 093 738 704)
APPLICANTAND:
BRAZIN LIMITED
(ACN 006 624 228)
FIRST RESPONDENTGHETTO SPORT AND STREET PTY LTD
(ACN 079 826 823)
SECOND RESPONDENT
JUDGE:
GRAY J
DATE:
7 NOVEMBER 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
In my view this is a case in which the interests of justice dictate that the proceeding should be transferred to the Supreme Court of Victoria, in the exercise of the power given to this Court by s 86A of the Trade Practices Act 1974 (Cth) (‘the Trade Practices Act’), particularly subs (2)(b) of that section.
The Supreme Court of Victoria plainly has jurisdiction to deal with a claim made under s 52 of the Trade Practices Act. That jurisdiction is conferred by s 86(2). In the present case the claim under s 52 is pleaded in the alternative. The principal claim of the applicant is a claim that it dealt with the first respondent because the first respondent represented that any contract to which the applicant entered into was made with the first respondent. It is said that the first respondent subsequently asserted that any contract has been made with the second respondent. The representation was pleaded to have been made in written terms of trade. If it were made as pleaded, then there appears to me to be little doubt that the contract was made between the applicant and the first respondent and no issue of misleading and deceptive conduct would arise. Even if the representation were untrue, it would still give rise to a contract between the applicant and the first respondent, because the applicant would be entitled to rely on it. In that event this Court would have no jurisdiction to deal with the proceeding at all.
In all other respects the proceeding is nothing but a contract case, involving an attempt to collect the debts of the applicant for goods already sold and delivered, and to claim damages in respect of goods ordered but not delivered, because of refusal to accept delivery. Such a case belongs properly in the State courts, not in this Court.
Accordingly, I make the following orders:
1.The proceeding be transferred to the Supreme Court of Victoria;
2.The costs of both parties, incurred in this Court, be reserved to the Supreme Court of Victoria.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate:
Dated: 23 November 2005
Counsel for the applicant: M Rivette Solicitor for the applicant: Middletons Counsel for the respondent: A Strahan Solicitor for the respondent: Gilbert and Tobin Date of Hearing: 7 November 2005 Date of Judgment: 7 November 2005
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