Bannerhey Pty Ltd v 1800 000 000 Pty Ltd [2008] FCA 53

Bannerhey Pty Ltd v 1800 000 000 Pty Ltd [2008] FCA 53

The applications failed because, on the pleaded case and evidence, the admitted unique business system representation was not shown to be misleading or deceptive: 1800 had a business system or model, made it available before execution, and the evidence did not show that it was incapable of exploiting the telephone number or domain names. Most other pleaded representations were not proved to have been made, were made only in narrower terms, were not false on the evidence, or were not relied on. The applicants knew before entering the Master Licence Agreements that 1800's business had not commenced, that they would be the instrumentalities through which it would commence in Queensland and...

Jurisdiction
Australia
Judgment Date
08 February 2008
Procedural Posture
Federal Court Proceedings for Damages, Declaratory and Other Relief Alleging Misleading or Deceptive Conduct Under the Trade Practices Act 1974 (cth), With Amended Cross Claims Under Trade Practices and Fair Trading Legislation and Contractual Indemnity Obligations / Final Judgment After Concurrent Hearing of Two Proceedings
Outcome
Applications dismissed with costs; amended cross-claims dismissed without any order as to costs.
Legal Topics
['representations in Sale of Master Licences' 'reliance' 'state of Knowledge of Purchasers' 'business System and Model Representations' 'future Matters' 'cross Claims for Territory Promotion Fund Payments']
['trade Practices' 'consumer Protection' 'misleading or Deceptive Conduct' 'franchising and Licensing' 'contract'] ['representations in Sale of Master Licences' 'reliance' 'state of Knowledge of Purchasers' 'business System and Model Representations' 'future Matters' 'cross Claims for Territory Promotion Fund Payments']

Case Brief

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Procedural Posture

Federal Court Proceedings for Damages, Declaratory and Other Relief Alleging Misleading or Deceptive Conduct Under the Trade Practices Act 1974 (cth), With Amended Cross Claims Under Trade Practices and Fair Trading Legislation and Contractual Indemnity Obligations / Final Judgment After Concurrent Hearing of Two Proceedings

Legal Issues

  1. 1 ['Whether 1800 or the Jacobsons made the pleaded representations concerning the 1800 000 000 business system, business model, profitability, territories, training, marketing materials, call centre protocols and launch readiness.' 'Whether any pleaded representations that were made were misleading or deceptive or likely to mislead or deceive.' 'Whether the applicants relied on any misleading or deceptive representations in entering their Master Licence Agreements.' 'Whether the Jacobsons were persons involved in any contravention within the meaning of s 75B of the Trade Practices Act 1974 (Cth).' "Whether the respondents' amended cross-claims should succeed, including claims for unpaid Territory Promotion Fund amounts."]

Ratio Decidendi

The applications failed because, on the pleaded case and evidence, the admitted unique business system representation was not shown to be misleading or deceptive: 1800 had a business system or model, made it available before execution, and the evidence did not show that it was incapable of exploiting the telephone number or domain names. Most other pleaded representations were not proved to have been made, were made only in narrower terms, were not false on the evidence, or were not relied on. The applicants knew before entering the Master Licence Agreements that 1800's business had not commenced, that they would be the instrumentalities through which it would commence in Queensland and...

Court Disposition

Applications dismissed with costs; amended cross-claims dismissed without any order as to costs.

Orders

  • ['In NSD 544 of 2003, the application be dismissed.' "In NSD 544 of 2003, the applicants pay the respondents' costs." "In NSD 544 of 2003, the respondents' cross-claim be dismissed." 'In NSD 545 of 2003, the application be dismissed.' "In NSD 545 of 2003, the applicants pay the respondents' costs." "In NSD 545 of...