Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 3) [2008] FCA 967

FEDERAL COURT OF AUSTRALIA

Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 3) [2008] FCA 967

HOY MOBILE PTY LIMITED (ACN 103 105 228) v ALLPHONES RETAIL PTY LIMITED (ACN 103 105 228)

NSD 1678 of 2006

RARES J

16 JUNE 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1678 of 2006

BETWEEN: HOY MOBILE PTY LIMITED (ACN 103 105 228)

Applicant

AND: ALLPHONES RETAIL PTY LIMITED (ACN 103 105 228)

Respondent

JUDGE: RARES J

DATE OF ORDER: 16 JUNE 2008

WHERE MADE: SYDNEY

THE COURT DECLARES THAT:

1. It is and was at all times an essential term of the "Allphones" Franchise Agreement between the applicant and the respondent that that the Territory prescribed by that Agreement as the franchise territory is the area comprised within the suburb of Eastgardens, in the State of New South Wales.

2. It is and was at all times an essential term of the Agreement that on the 15th day of each calendar month or, if that be not a business day, then on the next business day, the Respondent shall (subject to the Applicant bearing the costs and bank charges of effecting such transfer) transfer to the Applicant by way of cheque or electronic funds transfer to such bank account as the Applicant may notify to the Respondent from time to time moneys equivalent to 72.5 per centum of:

2.1 the income received by the respondent from any mobile telephone network carrier (including but not limited to Hutchison 3G Australia Pty Ltd, Optus Mobile Pty Limited, Virgin Mobile Australia Pty Limited and Vodafone Australia Pty Limited) in respect of the activation of a mobile telephone customer on a mobile telephone network ("Mobile Telephone Sales Commission" or "MTSC") facilitated by the operation of the Respondent's "Allphones" business within the said Territory during the term of the Agreement; and