CATCHWORDS
INJUNCTIONS - interlocutory interim injunctions - no serious question to be tried - damages an appropriate remedy - balance of convenience against granting of injunctive relief.
TRADE PRACTICES - misleading and deceptive conduct - respondent not yet in contravention of s 52 of Trade Practices Act 1974 - applicant not yet suffered loss and damage.
Trade Practices Act 1974, s 52, s 82, s 87.
AUSTRALIA CROISSANT PTY LTD and AUSTRALIA ON COLLINS PTY LTD
NO VG 97/95
Olney J
Melbourne
15 February 1995.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 97/95
B E T W E E N:
AUSTRALIA CROISSANT PTY LTD
Applicant
- and -
AUSTRALIA ON COLLINS PTY LTD
Respondent
Coram: Olney J
Place: Melbourne
Date: 15 February 1995
MINUTE OF ORDER
THE COURT ORDERS THAT the applicant's notice of motion dated 13 February 1995 be dismissed with costs.
AND THE COURT DIRECTS:
1. The applicant file and serve a statement of claim and any amended application on or before 8 March 1995.
2. The respondent file and serve its defence on or before 16 March 1995.
3. The applicant and respondent file and serve sworn lists of documents on or before 30 March 1995.
4. The directions hearing be adjourned to 7 April 1995.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 97/95
B E T W E E N:
AUSTRALIA CROISSANT PTY LTD
Applicant
- and -
AUSTRALIA ON COLLINS PTY LTD
Respondent
Coram: Olney J
Place: Melbourne
Date: 15 February 1995
REASONS FOR JUDGMENT
By application filed on 13 February 1995 (and since amended) the applicant claims:
1. Injunctions, including interim and interlocutory injunctions, restraining the respondent from permitting any person to sell any sandwiches or rolls or cappuccinos from premises in the Food Court at Australia on Collins, 260 Collins Street, Melbourne unless such person was selling sandwiches or rolls or cappuccinos as at 10 February, 1995.
2. Damages, including damages under s 82 of the Trade Practices Act 1974 and for breach of collateral contract between the applicant and the respondent.
3. Alternatively orders under s 87 of the Trade Practices Act 1974 in respect of the lease of shop 104 Australia on Collins, 260 Collins Street, Melbourne from the respondent to the applicant.
No statement of claim has been filed but the application is supported by affidavits of Brian Jonathan Chaitman and Jonathan Kaplan, both sworn on 13 February 1995.
At the time the application was filed the applicant also filed a notice of motion seeking interlocutory injunctive relief. The notice of motion (as amended) seeks:
1. An interlocutory injunction until trial or further order restraining the respondent from permitting any person to sell any sandwiches or rolls or cappuccinos from premises in the Food Court at Australia on Collins, 260 Collins Street, Melbourne unless such person was selling sandwiches or rolls or cappuccinos as at 10 February, 1995.
2. Dispensing with compliance with times for service contained in the Rules so as to permit the Application for interlocutory relief to be made on Tuesday 14 February, 1995.
3. Such further or other orders as to the Court seems fit.
The notice of motion was returnable on 14 February 1995 and was heard on that day without objection from counsel for the respondent. An order for abridgment of time will be made. Prior to the hearing the respondent served an affidavit on the applicant's solicitors but it was not filed and the respondent's counsel did not refer to it or seek to rely upon it. However, in his submissions in reply the applicant's counsel tendered it. The purpose of such tender was to provide evidence of a matter which was raised in the course of the respondent's case but which in the end was not a live issue.
It will not be necessary to refer to the affidavit any further. In the course of the hearing it became apparent that the injunction sought by the applicant was not entirely appropriate and accordingly counsel suggested that the following alternative order should be made.
That until the hearing of this application or further order the respondent, whether by itself, its servants, agents or howsoever, be restrained from permitting any more than two sandwich operators and five food vendors selling cappuccino to occupy shops in the Food Court, Australia on Collins, 260 Collins Street, Melbourne.
Even in this amended form the proposed order does not clearly state what is sought. On my understanding of the case the applicant wants to restrain the respondent from permitting:
a) more than 2 tenants of shops in the Australia on Collins Food Court from selling sandwiches; and
b) more than 5 tenants of shops in the Food Court whose business involves the sale of food from selling cappuccino coffee.
I propose to deal with the motion on that basis.
On 1 October 1992 the applicant and the respondent executed an agreement for lease in respect of shop 104 at Lower Collins Street level of the Australia on Collins complex (the Food Court) whereby the respondent agreed to lease the shop to the applicant for a term of 7 years. A lease in the agreed form was later executed. The term commenced on 28 October 1992. The lease provides that the applicant is permitted to use the premises for the retail sale of foods and beverages in accordance with a sample menu attached to the lease. The menu refers to various types of "fresh sandwiches and croissants" and to "drinks" including brewed coffee and cappuccino.
The applicant's case is based upon the assertion that it entered into the lease in reliance upon representations made by several persons on behalf of the respondent to the effect that during the term of the applicant's lease the respondent would not permit more than 2 shops in the Food Court to sell sandwiches (the sandwich representation) and not more than 5 food vendors in the Food Court to sell cappuccino (the cappuccino representation). It is claimed that the representations were misleading or deceptive in that the respondent now intends to lease shop 102 in the Food Court to a tenant who trades under the name of The Cultured Salad and who intends, with the respondent's approval, to sell, inter alia, sandwiches and cappuccinos. It has not been said in so many words, but it is implicit in the case presented, that the applicant says that if The Cultured Salad is granted the new lease as proposed and carries on business at shop 102, the number of sandwich vendors will exceed 2 and there will be more than 5 food vendors selling cappuccinos.
The above summary of the applicant's case puts what is perhaps a rather generous construction on the evidence which has been adduced. Be that as it may, there is some evidence which at this stage remains uncontradicted and which if sustained at trial may be capable of supporting an inference that representations along the lines asserted were made and that the applicant relied upon those representations in entering into the lease.
The applicant says that its business is likely to be substantially affected if the respondent in breach of the sandwich and cappuccino representations carries out its intention to lease shop 102 to The Cultured Salad. It says that the sale of sandwiches and cappuccino accounts for a substantial percentage of its turnover and profit margin. There is no allegation that the respondent has yet contravened s 52 of the Trade Practices Act nor that the applicant has suffered any loss or damage which would entitle it to bring an action pursuant to s 82. The applicant's case is based entirely upon the apprehension that the respondent will engage in conduct in contravention of s 52 and that it (the applicant) will thereby suffer loss or damage.
There is in my opinion no evidence before the Court to suggest, or any reason in logic to conclude, that the advent of further competition in the sandwich and cappuccino market at the Australia on Collins Food Court necessarily renders it likely that the applicant's business will thereby be substantially affected. There is no doubt that it is possible that there could be some detrimental effect, but a mere possibility does not make it a likelihood. Indeed, it is possible that the presence of another sandwich and cappuccino vendor may attract greater custom to the Food Court to the mutual advantage of all lessees. There is simply no evidence before the Court apart from the applicant's bald assertion to support even a prima facie case that the applicant is likely to suffer loss or damage if the proposed new lease of shop 102 is proceeded with.
In order to make out a case to warrant the exercise of the Court's discretion the applicant must first demonstrate that there is a serious question to be tried and to do so must satisfy the Court to the required standard not only that the conduct contemplated by the respondent would contravene s 52 of the Trade Practices Act, but also that as a result of that conduct the applicant has suffered or is likely to suffer loss or damage. For the reasons previously stated I am not satisfied that there is a serious question to be tried.
In case it should be thought that I have taken too harsh a view on the threshold question, I propose to make the following brief observations. Assuming for present purposes that it could properly be said that the material before the Court does in fact support a finding that there is a serious question to be tried, this is not a case in which the Court's discretion to grant injunctive relief should be exercised. If it be so that the applicant is likely to suffer loss or damage by the granting of a lease of shop 102 to The Cultured Salad as proposed, it must be the case that the applicant can, or will if and when the occasion may arise, calculate the extent of that loss or damage. The applicant does not say that the proposed lease of shop 102 will if carried out as planned, totally and irreparably destroy its business. For that reason, it would seem that damages would be an entirely appropriate remedy and that the balance of convenience would lie against granting injunctive relief.
I certify that this and the preceding 6 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 14 February 1995
Place: Melbourne
Judgment: 15 February 1995
Appearances:
Mr T. Ginnane (instructed by Dunhill Madden Butler) appeared for the applicant.
Mr T. Walker (instructed by Phillips Fox) appeared for the respondent.
