High Court of Australia

Peters (WA) Ltd v Petersville Ltd [2001] HCA 45

205 CLR 126; 75 ALJR 1385; 181 ALR 337

9 Aug 2001

Case Number: P64/2000

Before

Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ

Catchwords

Trade practices – Restraint of trade – Sale of business – Appellant manufactured and sold ice cream products in Western Australia under the "Peters" marks – Respondents manufactured and sold ice cream products under the "Pauls" marks nationally and under the "Peters" marks in every State except Western Australia – Sale of respondents' Western Australian ice cream business to appellant – Sale agreement provided that the appellant be granted the exclusive right and licence to use the "Pauls" marks in Western Australia in return for percentage royalty – Sale agreement contained covenant restraining respondents from selling ice cream products in Western Australia – Restraint coextensive with duration of licensing arrangements but extended to ice cream products to which licensing arrangements not applicable – Whether restraint is one to which the common law restraint of trade doctrine applies.

Trade practices – Restraint of trade – Circumstances in which the restraint of trade doctrine does not apply – Whether "sterilisation of capacity test" should be adopted in Australia.

Trade practices – Restraint of trade – Development of common law respecting restraint of trade – Considerations of public interest – Relationship between doctrine of "restraint of trade" and Trade Practices Act 1974 (Cth).

Words and phrases – "restraint of trade" – "sterilisation of capacity" – "fettering of existing freedom" – "public interest".

Trade Practices Act 1974 (Cth) – ss 4M, 45-51AAA.
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