The Big Four Pty Ltd v DaimlerChrysler Australia/Pacific Pty Ltd [2002] FCA 783

The Big Four Pty Ltd v DaimlerChrysler Australia/Pacific Pty Ltd [2002] FCA 783

The motion failed because, even assuming DaimlerChrysler's construction of clause 20 was correct, Darryl Twitt had pleadedly requested DaimlerChrysler's consent to transfer the Franchise to the applicant. Given that Part IVB of the Trade Practices Act 1974 provides for codes regulating conduct of industry participants towards other industry participants and the Code has that purpose, it was fairly arguable that a prospective transferee who was treated for the motion as an industry participant could rely on the franchisor's alleged contravention of clause 20(2). The claim was not so clearly untenable that it could not possibly succeed.

Jurisdiction
Australia
Judgment Date
20 June 2002
Procedural Posture
Trade Practices Act Franchising Dispute / First Respondent's Interlocutory Motion Under Order 20 Rule 2 of the Federal Court Rules to Strike Out Part of the Statement of Claim and Dismiss Part of the Application
Outcome
Motion dismissed with costs.
Legal Topics
['franchising Code of Conduct' 'industry Codes' 'unreasonable Withholding of Consent to Transfer of Franchise' 'unconscionable Conduct' 'strike Out Application' 'injunctions Under S 80 of the Trade Practices Act 1974' 'damages Under S 82 of the Trade Practices Act 1974']
['competition and Consumer Law' 'franchising' 'civil Procedure'] ['franchising Code of Conduct' 'industry Codes' 'unreasonable Withholding of Consent to Transfer of Franchise' 'unconscionable Conduct' 'strike Out Application' 'injunctions Under S 80 of the Trade Practices Act 1974' 'damages Under S 82 of the Trade Practices Act 1974']

Case Brief

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Procedural Posture

Trade Practices Act Franchising Dispute / First Respondent's Interlocutory Motion Under Order 20 Rule 2 of the Federal Court Rules to Strike Out Part of the Statement of Claim and Dismiss Part of the Application

Legal Issues

  1. 1 ["Whether the applicant's claim for relief under ss 80 and 82 of the Trade Practices Act 1974 based on an alleged contravention of clause 20(2) of the Franchising Code of Conduct was so clearly untenable that it could not possibly succeed." "Whether a prospective transferee of a franchise could rely on a franchisor's alleged contravention of its obligation under clause 20(2) of the Franchising Code of Conduct not unreasonably to withhold consent to transfer."]

Ratio Decidendi

The motion failed because, even assuming DaimlerChrysler's construction of clause 20 was correct, Darryl Twitt had pleadedly requested DaimlerChrysler's consent to transfer the Franchise to the applicant. Given that Part IVB of the Trade Practices Act 1974 provides for codes regulating conduct of industry participants towards other industry participants and the Code has that purpose, it was fairly arguable that a prospective transferee who was treated for the motion as an industry participant could rely on the franchisor's alleged contravention of clause 20(2). The claim was not so clearly untenable that it could not possibly succeed.

Court Disposition

Motion dismissed with costs.

Orders

  • ['The motion notice of which was filed on 15 August 2001 be dismissed.' "The first respondent pay the applicant's costs of the motion."]