Video Ezy International Pty Ltd v Sedema Pty Ltd [2014] NSWSC 143

Supreme Court New South Wales

Medium Neutral Citation: Video Ezy International Pty Ltd v Sedema Pty Ltd [2014] NSWSC 143 Hearing dates: 26/09/2013 Decision date: 27 February 2014 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) The appeal is dismissed. (2) The decision of his Honour Magistrate Favretto dated 14 February 2013 is affirmed. (3) The amended summons filed 26 September 2013 is dismissed. (4) The plaintiffs are to pay the defendants' costs as agreed or assessed. Catchwords: APPEAL FROM LOCAL COURT - whether Magistrate erred in finding a franchise agreement had come to an end - whether the franchisor breached the restrictive covenant not to compete with the franchisee in the exclusive territory - whether competing "within" the territory of the franchise is the physical territory or includes products purchased over the internet - whether the franchisor had an obligation to act in good faith to the franchisee - whether the conduct of the franchisor was unconscionable within the meaning of the Trade Practices Act 1975 (Cth) and the Competition and Consumer Act 2010 (Cth) - whether related entities of the franchisor were liable as accessories to the unconscionable conduct of the franchisor; EVIDENCE - admissibility of evidence on the ground that the evidence was opinion - evidence properly admitted Legislation Cited: Australian Consumer Law, ss 20, 21, 22 Competition and Consumer Act 2010 (Cth), Sch 2, ss 2, 20, 21, 22 Evidence Act 1995 (NSW), ss 78, 80 Local Court Act 2007 (NSW), ss 39, 40, 41 Trade Practices Act 1974 (Cth), ss 51AA, 51AB, 51AC, 51AD, 75B, 82, 87 Cases Cited: Alpha Centauri Enterprises Pty Ltd v Mortgage House of Australia Pty Ltd [2009] NSWSC 333 Australian Competition and Consumer Commission v Simply No-Knead (Franchising) Pty Ltd [2000] FCA 1365; (2000) 104 FCR 253 Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226; (2005) 148 FCR 132 Bullabidgee Pty Ltd v McCleary [2011] NSWCA 259 Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 558 Canon Australia Pty Ltd v Patton [2007] NSWCA 246 CG Berbatis Holdings Pty Ltd v Australian Competition and Consumer Commission [2001] FCA 757; (2001) 185 ALR 555 Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 Connex Group Australia Pty Ltd v Butt [2004] NSWSC 379 Hurley v McDonald's Australia Ltd [1999] FCA 1728, (2000) ATPR 41-741 Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; (2004) 219 CLR 165 Tonto Home Loans Australia Pty Ltd v Tavares; FirstMac Ltd v Di Benedetto; FirstMac Ltd v O'Donnell [2011] NSWCA 389; (2011) 15 BPR 29,699 Wigan v Edwards (1973) 1 ALR 497 Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 Category: Principal judgment Parties: Video Ezy International Pty Ltd ACN 003 532 269 (First Plaintiff) Video Ezy Australasia Pty Ltd ACN 073 076 294 (Second Plaintiff) BB Australia Pty Ltd ACN 058 986 673 (Third Plaintiff) EzyDVD Pty Ltd ACN 123 658 702 (Fourth Plaintiff) Sedema Pty Ltd ACN 002 734 643 (First Defendant) Scott Newman (Second Defendant) Samantha Newman (Third Defendant) Lorraine Margaret Charnas (Fourth Defendant) Representation: Counsel: P Durack SC/P Herzfeld (Plaintiffs) T Alexis SC/D Mackay (Defendants) Solicitors: Macpherson and Kelley Lawyers (Plaintiffs) Cara Marasco and Company (Defendants) File Number(s): 2013/78400 Publication restriction: Nil Decision under appeal Date of Decision: 2013-02-14 00:00:00 Before: Favretto LCM File Number(s): 2011/245474