Nick Scali Limited v Super A-Mart Pty Ltd (No 2) [2011] FCA 1500

Nick Scali Limited v Super A-Mart Pty Ltd (No 2) [2011] FCA 1500

Declaratory relief was refused because it would not provide further utility beyond the granted injunctive relief, which sufficiently addressed the unlawful conduct found and signalled the court's disapproval. The applicant was awarded 80% of its costs, reflecting its substantial, though not total, success, and the respondent's partial success in defending some allegations.

Parties
Applicant: Nick Scali Limited; Respondent: Super A-Mart Pty Ltd
Jurisdiction
Australia
Judgment Date
23 December 2011
Procedural Posture
Civil / Relief and Costs—final Orders
Outcome
Application for declaration dismissed; Injunctions granted; Orders as to costs made
Legal Topics
Comparative Advertising, Misleading or Deceptive Conduct, False Representations, Injunctive Relief, Declaratory Relief, Apportionment of Costs
Consumer Protection Competition and Consumer Law Comparative Advertising Misleading or Deceptive Conduct False Representations Injunctive Relief Declaratory Relief Apportionment of Costs

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Parties

Nick Scali Limited

Applicant

Super A-Mart Pty Ltd

Respondent

Procedural Posture

Civil / Relief and Costs—final Orders

Legal Issues

  1. 1 Whether a declaration should be made concerning contraventions of s 52 of the Trade Practices Act
  2. 2 Appropriate final injunctive relief
  3. 3 Appropriate order for costs

Ratio Decidendi

Declaratory relief was refused because it would not provide further utility beyond the granted injunctive relief, which sufficiently addressed the unlawful conduct found and signalled the court's disapproval. The applicant was awarded 80% of its costs, reflecting its substantial, though not total, success, and the respondent's partial success in defending some allegations.

Court Disposition

Application for declaration dismissed; Injunctions granted; Orders as to costs made

Orders

  • The respondent is permanently restrained from broadcasting or making available the commercial in question.
  • The respondent is permanently restrained from representing that the Excellence Suite is of the same quality as the Rajah Suite, that the Rajah Suite is more than double the price of the Excellence Suite, or that the applicant's Rajah Suite price is excessive in view of the Excellence Suite's price, where such...