Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
4th Dimension Transport Pty Ltd v Australian Couriers Pty Ltd [2022] FCA 1500 File number(s): VID 677 of 2022
Judgment of: MCEVOY J
Date of judgment: 28 November 2022
Date of publication of reasons: 13 December 2022
Catchwords: PRACTICE AND PROCEDURE – application for interlocutory mandatory injunction – alleged failure of franchisor to "procure" a subsidiary franchisee to accept and deliver certain parcels, being flat-pack furniture, from the plaintiff franchisee, arguably in breach of the Franchise Deed – mandatory injunction sought to require franchisor to accept and deliver such parcels – serious question to be tried as to the breach of the Franchise Deed by the franchisor – balance of convenience – whether occupational health and safety concerns outweigh any financial loss to be suffered by the franchisee – whether damages would be an adequate remedy – undertaking provided by the plaintiff – final relief reformulated to seek specific performance of Franchise Deed
Legislation: Competition and Consumer Act 2010 (Cth) s 51AE, Sch 2 (Australian Consumer Law) s 18 and s 21 Federal Court of Australia Act 1976 (Cth) s 19 and s 23 Competition and Consumer (Industry Codes - Franchising) Regulation 2014 (Cth) Sch 1 (Franchising Code of Conduct) cl 6
Cases cited: A & A (Sydney) v YUM! Restaurants Australia Pty Ltd [2014] FCA 678 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 Bradto Pty Ltd v State of Victoria (2006) 15 VR 65; [2006] VSCA 89 Electricity Generation Corporations v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 National Australia Bank Ltd v Clowes [2013] NSWCA 179 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 Rinehart v Hancock Prospecting Pty Ltd (2019) 267 CLR 514; [2019] HCA 13 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
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