Australian Competition & Consumer Commission v Trayling [1999] FCA 1133

FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Trayling [1999] FCA 1133

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v NORMAN SIDNEY TRAYLING

SG 130 OF 1998

O'LOUGHLIN J 20 AUGUST 1999 DARWIN (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 130 OF 1998

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: NORMAN SIDNEY TRAYLING

Respondent

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 20 AUGUST 1999

WHERE MADE: DARWIN (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1. Leave be granted to the Applicant to amend the Application herein as set out in the Amended Application being Exhibit "DB4" to the Affidavit of Donna Bowman sworn on 18 June 1999.

AND DECLARES THAT:

2. Norman Sidney Trayling, the Respondent, has been directly knowingly concerned in, and a party to, contraventions by ACN 069 828 619 Pty Ltd formerly known as A1 Mobile Radiators Pty Ltd (in liquidation) (hereinafter referred to as "the company") of s 52 and subs 59(2) of the Trade Practices Act 1974 (Cth) ("the Act") in the course of the company selling or granting franchises or sub-franchises for the conduct of mobile radiator repair and service businesses as set out in the amended statement of claim herein.

AND FURTHER ORDERS THAT:

3. The respondent be restrained from aiding or abetting or from being directly or indirectly knowingly concerned in, or a party to, a Corporation (in the course of it selling or granting franchises or sub-franchises for the conduct of mobile repairs and service businesses), publishing, broadcasting or making representations:

(a) as to any estimated earnings without disclosing to a prospective franchisee or sub-franchisee: (i) the facts and assumptions on which the estimate is based; (ii) the extent of inquiries and research undertaken by the franchisor and any other compiler of the estimate; (iii) the period to which the estimate relates; (iv) an explanation of the choice of the period covered by the estimate; (v) whether the estimate includes depreciation, salary for the franchisee and the cost of servicing loans; (vi) assumptions about interest and tax; and (vii) financial information concerning those franchises which have not achieved estimated earnings. (b) that the corporation has secured customers who are likely to place repeat orders for services to be provided by a franchisee or sub-franchisee unless the corporation identifies the customers and discloses all material information relevant to: (i) the period over which the customers have made repeat orders; (ii) the average weekly number of orders placed over the period referred to in (i) above; (iii) the average weekly income derived from the orders placed over the period referred to in (i) above; (iv) the number of franchisees or sub-franchisees amongst whom the orders placed by those customers may be distributed; (v) the areas or regions in which the orders were placed; (vi) any significant circumstance that may affect the future frequency of orders placed by those customers.