Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 5) [2011] FCA 807

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 5) [2011] FCA 807 Citation: Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 5) [2011] FCA 807

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ALLPHONES RETAIL PTY LIMITED (ACN 008 168 090)

File number: NSD 1567 of 2008

Judge: NICHOLAS J

Date of judgment: 19 July 2011

Cases cited: Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338

Date of hearing: Determined on the papers

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 9

Counsel for the Applicant: Mr J Giles

Solicitor for the Applicant: Corrs Chambers Westgarth

Solicitor for the Respondent: Mr G Taperell of DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1567 of 2008

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND: ALLPHONES RETAIL PTY LIMITED

(ACN 008 168 090)

Respondent

JUDGE: NICHOLAS J DATE OF ORDER: 19 JULY 2011 WHERE MADE: SYDNEY

THE COURT DECLARES THAT:

1. The respondent is guilty of contempt of court by reason of its breach of undertaking 8 which it gave to the Federal Court of Australia on 9 October 2008 which breach occurred by the respondent: (a) on 11 June 2009, withholding consent to one of its franchisees, Evelyn Houghton (Mrs Houghton), assigning the franchise agreement between her and the respondent on the basis that Mrs Houghton had not released the respondent from liabilities that the respondent has or may have to Mrs Houghton in respect of issues the subject of the Notice of Dispute issued by the respondent and dated 29 August 2009; and (b) doing so in circumstances where Mrs Houghton had not required that the respondent release her from liabilities which she had or may have had to the respondent. 2. The respondent is guilty of contempt of court by reason of its breach of undertaking 9 which it gave to the Federal Court of Australia on 9 October 2008 which breach occurred by the respondent: (a) on 11 June 2009, withholding consent to Mrs Houghton assigning the franchise agreement between her and the respondent on the basis that, for consent to be given by the respondent, the assignee must enter into a form of franchise agreement with the respondent which is different to Mrs Houghton's franchise agreement; and (b) not giving the applicant 7 days notice in writing of its intention to withhold consent to Mrs Houghton assigning the franchise agreement between her and the respondent on the basis that the assignee must enter into a form of franchise agreement with the respondent which is different to Mrs Houghton's franchise agreement. 3. The respondent is guilty of contempt of court by reason of its breach of undertaking 9 which it gave to the Federal Court of Australia on 9 October 2008 which breach occurred by the respondent: (a) in February 2009 withholding consent to one of its franchisees Deep End Investments Pty Limited (Deep End) assigning the franchise agreement between it and the respondent on the basis that, for consent to be given by the respondent, the assignee must enter into a form of franchise agreement with the respondent which is different to Deep End's franchise agreement; and (b) not giving the applicant 7 days notice in writing of its intention to withhold consent to Deep End assigning the franchise agreement between it and the respondent on the basis that the assignee must enter into a form of franchise agreement with the respondent which is different to Deep End's franchise agreement.