NOT FOR FURTHER DISTRIBUTION IN THE FEDERAL COURT OF AUSTPALTA ' - ) . VICTORIA DISTRICT REGISTRY } Ve. No. G 237 of 15996 i ) GENERAL DIVISION BETWEEN : CARNELYA PTY. LTD. 'trading as F.G. FREIGHT SEFVICES) Apslicant and FREIGHT SERVICES FORWARDING PIY. LTD. and HALFORD YOUNGS PY. LTD. Fespondents COURT: NORTHROP J. DATE: 1 AUGUST 1986 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT The applicant, which 15 a company trading as F.G. Freight Services, is seeking intarlocutory injunctions restraining the respondents Freight Services Forw. uu rding Pty. Ltd. and Halford Youngs fty. Ltd., and thaie servants and agents from directly or indirectly trading or dealiny with the former Victorian customers of Freight (Australia) Pty. Ltd., tm liquidation, in Victoria, being those rustomers set out in exhibit FG4+ to the affidavit of Frank Richard Guerra sworn on the llth day of June 1986 and filed herein. During the course of the hearing of that motion caunsel for the appearing, the word: "marked M", 49 Shat Ehe restriction would apply toa those customers marked M, get sut ain the relevant exhibit. The facts giving rise to the oresent motion can be stated shortly. Indo-Atlantic Freight (Australia) Pty. Ltd., in liquidation, was carrying on business as customs agents in Australia and had an Australia-wide clientele in relation to that work. In 1985 that company went into Liquidation. Before going into Liquidation 1ts general manager requested the company Freight Services Forwarding Fty. Ltd. toa complete the existing work of Indo-Atlantic Freight. This was cone in August of 1935 prior to that company going inta Liquidation. The head office af Indco-Atlantic Freignt was situated ain tomers and customer accounts a ia) Sydney and the data base of cu wa was kept in Sydnery. From time to time a docum i) a cr fu a Prepared setting out the customer account balances at various dates. The relevant exhibit, FG4, in the present case is a customer account balance as at 98 August 1985 which was prepared in Sydney and sent, at least, to -Ehe Melbourne office of Indo-Atlantic Freight. Seat out in that list of customers are a large number of persons who had dealings with Indo-Atlantic Freight, some 30 per cent of which were in Victoria, and the balance were throughout Australia. This was a document which was also supplied ts the rtompany Freight Services Forwacding Pty. Ltd. Following Indo-Atlantic Freight going ints liquidation, discussions took place between the applicant and the liquidator of that company in celation to the sale of the ree Melbourne business of Indo-Atlantic Fraight and there was an agreement reached between the liquidator and the apglicant as set out in correspondence contained 2 u letters whereny the plaintiff purchased for the sum of 318,600 a11 plant and i fa equi mH oO ron wu ml office furniture, veh and goodwiil previously held by Indo-Atlantic Freaght (Australia) Fey. Ltd., at their Melbourne office but excluding one particular cac. After that agreement was entered anto, the applicant apparently received the copy of the customer account balances being exhibit FG referced to earlier. In April 1986, Freight Services Forwarding Pty. Ltd. wrote to its customers, including at least a number of customers specified in exhibit FG4, some of which at least were in Victoria, a letter in substance saying or notifying the customers that:- . Freignt Services Forwarding Fty. Ltd. and Halford Youngs Pty. Ltd. will combine their Sydney and Meibourne operations during April 1984. The move has yositive implicaticns for cur joint clirantele. Freight Services with 165 international spread of Forwarding offices wished in increase the size of its oresence in Australia; Halfords with 1ts major share of the Customs Clearing market recognized the need to become more iunvolved in International Freight Forwarding. These integrated operations will now have the resources to bring you the benefits of all the technological advances currently taking place in International Forwarding and Customs Clearing whilst retaining the experienced personal service you have enjoyed in the past. i believe this joining 2f interests nas tremendous pOossioilities Greco the next few weeks we will be in raontazbh with you to cover any aspects that micht vaquire clarification." Subsequently, a following letter was sent on id May 1986. It is of similar type to the first letter and enclosed a standard letter of authority to be signed by prospective Tusbomers. The applicant complains that those letters constitute conduct which 18 misleading of deceptive under 5.52 of the Trade Practices Aceh 1974 or is likely to mislead or deceive. They also complain under 5.53 paragraph (d) of the Act that the respondents are rapresenting that they have & sponsorshis, approval or affiliation they do nor have. Tt 25 difficult to see the basis upon which those claims can be made. There 15 nothing to suggest on the face of the letters that they are representing that they in fact are carrying on the business oc have an affiliation with the company which has gone into liquidation. In my opinion, the letters of 7 April and 14 May do not have that implication in them. In any event, there is no evidence that the second-named respondent has sent letters to former clients of Indo-Atlantic Freight (Australia) Pty. Ltd. Further, I can see no reason at all on the material before me, why 1t can be Said that the applicant has any exclusive right to these hb B ui or ul is) rh a c ul rr a FI nf La ul is) bal) ad a m Sol o fh GaMe cr fH fo a cr rr a "yyiD rm Q Yr a Hed io cy fea ™ By) H wa fy Fty. Led. Tt 15 always a comes within the concept business, but on tne fact fare from satisfied, for Ff that the goodwill inciuded exhibit FG4+, being the oc August 15985. If the anju marked Mon that exhibit, Court as to who placed un bo question in the the customecs contained in ustomer account balances notion there is no the marks ""M", the ainference appears to be that it was done on behalf of the applicant. tha arl te cy P sec byor Tra the dea Fre There 15 no sugg t the respondents are sing from the name, of Ltd. . In any event, i a pa s co um r d respondent it nc it. More inportantly, not directed to conduct to conduct which would de Practices Ack. Wha respondents from di ling with former Vict ight, and there 1s, estion at all in any of the letters making use of the name, or matters Indo-Atlantic Freight (Australia) there 15 no aviden far as the a eB as rned w that Dp et taken Be any c n on wa bh ti the injunction scught on the motion which is misleading or deceptive, << FD Seca come within o¢ 5.53 of the t 1s being sought, 15 to restrain rectly or andirectly trading or orian customers of Indo-Atlantic i n Opinion, no basis on the my material before me to support any such injunction. wu tmiT oy Ww | wi fa mB w a Accordingly, T am not satisfied, before ma, that there 15 a serious question of 135u6 tried, cut in any event, having regard toa what 1s before me, bhis is- a case where the balance of convenience = strongly, supports the view that no interlocutory injuncticn should he granted. In the circumstances, the Court refuses to make the orders sougnt in paragraph & of the application. 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