Carlton & United Breweries (NSW) Pty Ltd v. Bond Brewing New South Wales Ltd & Ors [1988] FCA 205

CATCHWORDS

PRACTICE AND PROCEDURE - whether leave to discontinue should be granted ~ resolution of issues between applicant and lst and 3rd respondents - opposition of leave to discontinue by

2nd respondent ~ the nature of the Court's discretion

SCI Operations Pty Limited v. Trade Practices Commission and Others (1984) 53 a.L.R. 283

Federal Court Rules - Order 22, Rule 2(1)(d)

CARLTON AND UNITED BREWERIES (N.S.W.) PTY. LIMITED v. BOND BREWING NEW SOUTH WALES LTD, TOOTH & CO. LIMITED and BOND BREWING QUEENSLAND LTD.

wsw G494 of 1987

Davies J. 22 April 1988 Sydney

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY No. 494 of 1987

GENERAL DIVISION

BETWEEN: CARLTON AND UNITED BREWERIES (N.S.W.) PTY. LIMITED

Applicant

AND: BOND BREWING NEW SOUTH WALES LTD, TOOTH & CO. LIMITED and BOND BREWING QUEENSLAND LTD.

Respondents

CORAM: Davies J. DATE: 22 April 1988 PLACE: Sydney

REASONS FOR JUDGMENT

This is a motion for leave to discontinue an application brought in this Court seeking relief principally under ss.45,

45D, 46 and 47 of the Trade Practices Act 1974 (Cth).

In August 1983 the Victorian brewer, Carlton and United Breweries Ltd ("CUB"), obtained control of a brewery in New South Wales which had been operated by or for the second respondent, the New South Wales brewer, Tooth & Co. Limited ("Tooth"). The

transaction was effected under agreements pursuant to which Tooth

sold to CUB its shareholding in the applicant company "CUB (NSW)" along with other assets. Tooth retained ownership or management of almost 250 hotels in New South Wales but agreed with CUB not to sell such hotels for a period of 5 years and thereafter not to do so without giving CUB first offer to purchase. The Tooth hotels were significant outlets for bulk and bottled beer in New South Wales. By acquiring the Tooth brewery and bearing in mind its association with the Tooth hotels, CUB no doubt hoped to