Federal Court of Australia
Federal Court of Australia
Girchow Enterprises Pty Ltd v Ultimate Franchising Group Pty Ltd (Final Hearing) [2023] FCA 420 File number(s): NSD 395 of 2020
Judgment of: THAWLEY J
Date of judgment: 5 May 2023
Catchwords: CONSUMER LAW – misleading and deceptive conduct – whether three corporate franchisees entered into gym franchise agreements because of misleading conduct on the part of franchisor and its directors – whether individuals gave guarantees because of misleading conduct – alleged representations with respect to future matters, mostly concerning likely future income and likely establishment costs –held that franchise agreements and guarantees entered into because of misleading conduct DAMAGES – appropriate quantification of losses where establishment costs expended on setting up unprofitable businesses – whether value of businesses when set up equalled costs incurred in setting up the businesses – whether referee report should be adopted – referee report adopted in part EVIDENCE – discussion of difficulties caused by cutting and pasting evidence from one affidavit to another
Legislation: Competition and Consumer Act 2010 (Cth) s 139B, Sch 2 (Australian Consumer Law) ss 4, 18, 236, 237 Federal Court of Australia Act 1976 (Cth) ss 37P(2), 54A
Cases cited: Australian Competition and Consumer Commission v Woolworths Ltd [2019] FCA 1039 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304 Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 City of Botany Bay Council v Jazabas Pty Ltd [2001] NSWCA 94; [2001] ATPR 64-210 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; 217 CLR 640 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109 Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; 184 CLR 281 McGrath v Australian Naturalcare Products Pty Ltd [2008] FCAFC 2; 165 FCR 230 Murphy v Overton Investments Pty Ltd [2004] HCA 3; 216 CLR 388 Potts v Miller (1940) 64 CLR 282 Shah v Hagemrad [2018] FCA 91 Sykes v Reserve Bank of Australia (1998) 88 FCR 511 Tour Squad Pty Ltd v Fifth Amendment Entertainment Inc (No 2) [2021] FCA 546; 151 ACSR 607 Wardley Australia Ltd v State of Western Australia [1992] HCA 55; 175 CLR 514
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