Walcan Pty Ltd v Superior Coffee & Cakes Pty Ltd [2002] FCA 1211

FEDERAL COURT OF AUSTRALIA

Walcan v Superior Coffee & Cakes Pty Ltd [2002] FCA 1211 TRADE PRACTICES - misleading or deceptive conduct - purchase of sub-franchise where guarantees of performance signed - whether signing of guarantees induced by misrepresentation as to sales and profit - whether representation made - whether misrepresentation misleading and deceptive or had that effect - where lack of complaint to franchisor personnel by applicants TRADE PRACTICES - misleading or deceptive conduct - whether answers in questionnaire that representations not relied upon a bar to claim for relief - position where applicants responded in detail to questionnaire - whether answers to questionnaire indicative of responses EVIDENCE - no independent evidence to suggest critical representation likely to have been made - credibility and applicants' evidence inconsistent and unreliable

Cases I00F Australian Trustees (NSW) Ltd v Tantipech (1998) 156 ALR 470 Cited WALCAN PTY LTD AND ANOR v SUPERIOR COFFEE & CAKES PTY LTD (ACN 066 956 081) AND ORS No Q169 of 2000 KIEFEL J BRISBANE 30 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q169 OF 2000

BETWEEN: WALCAN PTY LTD (ACN 060 592 038)

FIRST APPLICANT

IAN HENRY CANHAM AND ROBYN JOY CANHAM

SECOND APPLICANT

AND: SUPERIOR COFFEE & CAKES PTY LTD (ACN 066 956 081)

FIRST RESPONDENT

IAN GREGORY SHORTELL

SECOND RESPONDENT

BB'S BAGEL PTY LTD (ACN 082 174 794)

THIRD RESPONDENT

BB'S COFFEE & BAKE AUSTRALIA PTY LTD (ACN 051 802 183)

FOURTH RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 30 SEPTEMBER 2002

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants pay the respondents' costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.