Top Performance Motors Pty Ltd v Ira Berk (Queensland) Pty Ltd

24 FLR 286
5 ALR 465

---

(Judgment by: Evatt J)

Between: Top Performance Motors Pty Ltd
And: Ira Berk (Queensland) Pty Ltd

Court:

Judges: Joske J
Smithers J

Evatt J

Subject References:
Trade practice
Cancellation of dealership by sole distributor
Appointment of another dealer
Whether distributor gave effect to arrangement in restraint of trade
Whether distributor had used its power to control a market to eliminate a competitor in the market

Legislative References:
(CTH) Trade Practices Act 1974 - s 45(2)(b); s 46

Hearing date: 27 February 1975
Judgment date: 3 April 1975

---

Judgment by:
Evatt J

I have had the advantage of reading the reasons for judgment of my brothers Joske and Smithers with which I respectfully agree.

I would only add that in its case made under s 45 of the Trade Practices Act 1974, the applicant claimed that there was an arrangement or understanding between the respondent and MRG Automotive Services (Qld) Pty Ltd that the applicant's dealership agreement with the respondent would be terminated and MRG Automotive Services (Qld) Pty Ltd appointed a dealer in its stead, and that such arrangement or understanding was in restraint of trade within the meaning of the said section.

Further, the applicant claimed that such arrangement or understanding was made before written notice of termination of the applicant's written agreement with the respondent was given to the applicant, ie before 31 January 1975. I am of the opinion that the evidence does not support such a claim.

The applicant did not rely on an allegation that the written agreement dated 7 February 1975 between the respondent and MRG Automotive Services (Qld) Pty Ltd was a contract in restraint of trade or commerce within the meaning of s 45 of the Act. No argument on this was placed before the court by either the applicant or the respondent.

Further, the applicant, through its solicitor, stated that it was not claimed that any alleged arrangement or understanding or, as I understand it, the above-mentioned written contract (or any of its terms) made between the respondent and MRG Automotive Services (Qld) Pty Ltd were contraventions of s 47 of the Act.

Order

This court doth order that:

(a)

this application be dismissed, and

(b)

the applicant pay to the respondent its costs of and incidental to this application such costs to be taxed by the Registrar.