ACCC v IVF Finance Pty Ltd (No 2)

Federal Court of Australia (Victorian Registry)
[2021] FCA 1295
Justice O’Bryan

Keywords (from judgment)

COMPETITION – application by the Australian Competition and Consumer Commission for an urgent interlocutory injunction under s 80(2) of the Competition and Consumer Act 2010 (Cth) to restrain the first respondent from acquiring a fertility services business from the second respondent – where the Commission contends that the acquisition would contravene s 50 of the Competition and Consumer Act 2010 (Cth) – injunction granted

PRACTICE AND PROCEDURE – Interlocutory injunction – relationship between statutory and equitable injunctions – whether prima facie case of contravention established – whether balance of convenience favours the grant of an injunction – where respondents offered an undertaking to the Court to hold separate the acquired business until the final determination of the proceeding – whether an order for divestiture as final relief is equivalent to an injunction preventing the acquisition – statutory provision excluding undertaking as to damages

Legislation

Competition and Consumer Act 2010 - s 50 - s 80

Summary

The ACCC successfully applied for an interlocutory injunction to prevent an acquisition after one party indicated they intended to complete notwithstanding that the ACCC had not completed its public review of the merger.

Parties abandoned acquisition proposal before substantive matter was decided.