This matter commenced with an ex parte claim by the applicants for injunctive relief preventing the respondent franchisor from taking back a franchised restaurant at the expiry of the term contained in a Franchise Agreement. Subsequently, orders were made that the interlocutory injunction be discharged if the first applicant did not pay certain amounts by various stipulated dates and times. The first applicant failed to meet the conditions for the continuation of the injunction, and the injunction was thereby discharged.
In the Amended Originating Application (which was dismissed) certain claims for declaratory relief were made including a claim that the respondent breached cl 18(2)(a) of the Franchising Code. In dismissing that claim, the Court applied the principle that a declaration will not be granted if it will produce no foreseeable consequences for the parties or have no utility: Gardner v Dairy Industry Authority of New South Wales (1977) 18 ALR 55 at 69 (Mason J, with whom Jacobs and Murphy JJ agreed), 71 (Aickin J); Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 99 (Sheppard J); Australian Competition and Consumer Commission v Alvaton Holdings Pty Ltd [2010] FCA 760 at [29(d)] (Gilmour J). In the present case, it was held that a declaration would not serve any real purpose and was declined.
In the statement of claim oral contracts between the franchisee and franchisor were alleged relating to alleged agreements to extend the franchise term and to grant a new franchise over a new restaurant. Those alleged oral statements were said to give rise to causes of action in (a) contract, (b) promissory estoppel, (c) misleading or deceptive conduct within the meaning of s 18 of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth), (d) unconscionable conduct in contravention of the ACL (presumably a reference to s 21 of the ACL), and (e) breach of the obligation of good faith pursuant to cl 6 of the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Cth) (Franchising Code).
The Court did not accept the applicants’ evidence concerning disputed conversations and dismissed the application.
From an evidentiary perspective, the judgment also considered the reasoning of the Court of Appeal of the Supreme Court of New South Wales in Wild v Meduri [2024] FCA 230. This is referred to in the Practice Area, “Practice and Procedure” – “Admissibility and weight of evidence”.
This matter involved the construction of clauses contained in a Franchise Agreement in consequence of the defendant’s non-renewal of that agreement for a further term. In reaching its conclusion that the defendant was bound to consider the best interests of the plaintiff, the court applied what was stated by Edelman J in H Lundbeck A/S v Sandoz Pty Ltd; CNS Pharma Pty Ltd v Sandoz Pty Ltd (2022) 276 CLR 170. As part of the plaintiff’s claims, allegations of unconscionable conduct were made. A Notice of Intention to Appeal was filed shortly after judgment was given.
PAR Recycling v Shoebill Pty Ltd (Supreme Court of NSW, No. 2020/00039362) and Somersby Aust Pty Ltd v Gallagher & PAR Recycling Pty Ltd (Supreme Court of NSW, No 2020/00244319) were heard together by Parker J in the period 2 April – 12 April 2024. Judgment in both matters is currently reserved. In summary, the proceedings involved claims for damages for breach of contract and misleading or deceptive conduct, claims for unpaid rent, a claim for specific performance and a claim under a guarantee. Issues concerning the application of section 117 of the Conveyancing Act and principles derived from Walsh v Lonsdale were also raised.
One of the issues in this case concerned whether specific performance, as opposed to damages, was an appropriate approach in circumstances where the plaintiff sought orders for specific performance of a binding term sheet which provided for the declaration of a dividend sourced from conduit foreign income and then for a declaration of trust. The Cout made orders for specific performance.
This matter involved claims in contract in circumstances where a contract between United Resource Management Pty Ltd and Kimbricki Environmental Enterprises Pty Ltd (the KES Agreement) had terminated with that termination having the effect of terminating a subsequent contract between Par Recycling Services and United Resource Management Pty Ltd (the Supply Agreement). Further, a significant question for consideration was whether a further contract to share revenue from the operation and participation in a container deposit scheme was brought about by misleading or deceptive conduct by silence. This question, together with the following issues were among those that were considered by the Court: First, whether a common mistake had been ade to the effect that the Supply Agreement remained on foot; second, whether an implied contract had been made and if so, who were the parties and what were its terms; third, what impact did the termination of the Supply Agreement have on any subsequent agreement between Par Recycling Services and United Resource Management Pty Ltd; fourth, whether loss or damage was suffered as a result of mistake; fifth, whether the parties became bound by an implied agreement as the result of misleading or deceptive conduct; sixth, whether loss or damage was caused by misleading or deceptive conduct; seventh, whether certain evidence was admissible as expert opinion evidence; eighth, whether Jones v Dunkel inferences should be drawn.
An appeal was heard on 13 and 14 April 2023 in the NSW Court of Appeal in relation to the decision at first instance. Judgment on the appeal is to be found at United Resource Management Pty Ltd v Par Recycling Services Pty Ltd [2023] NSWCA 236 (5 October 2023).
This expedited matter was heard by Meek J on 11-18 July 2022. The dispute concerned various put and call option deeds relating to a block of 10 residential home units which were to be sold in one line to a purchaser. Relevant interdependent contracts for sale were exchanged with a single conveyancer authorised to liaise with the purchaser and to give permissions and receive notices under deeds. Claims for declaratory relief, specific performance and damages (including equitable damages) were made in circumstances where the interdependent contracts of sale had been terminated after Notices to Complete had been served and not complied with by the purchaser. As noted in the Real Property and Strat Titles section of this web-site, principles regarding electronic conveyancing were raised including the duty to cooperate in the context of PEXA settlement. A further question raised concerned whether a contract entered into in contravention of section 49 of the Property, Stock and Business Agents Act 2002 (NSW) was void or voidable. Final orders were the subject of a separate judgement to be found at D Capital 2 Pty Ltd v Western and others [2022] NSWSC 1283 (23 September 2022).
The case is also separately referred to under the Insurance - Professional Indemnity - Licensed Conveyancers section of this web-site with respect to a conveyancers duty of care and in the Equity and Trusts - Specific Performance section of this web-
This matter, which settled on the third day of a hearing before Ball J in 2022, involved claims by a franchisor against two guarantors of a franchisee company's obligations pursuant to a franchise agreement. The guarantee was contained in the relevant franchise agreement. It was contended by the defendants that the guarantee was not binding.
These proceedings involved a Licensing Agreement between the plaintiffs and the defendant whereby the defendant was granted a licence to use intellectual property the subject of ten separate patents which related to surgical techniques to facilitate phalloplasty and which were described in the schedule to the Licensing Agreement. The term of the licence was for five years and, in addition, the defendant was granted a further five year right of use upon the expiry of the license term. Two of the Australian patents (being the patents numbered one and five in the schedule had expired prior to the commencement of the Licensing Agreement and, a further Australian patent (being the patent numbered two in the schedule), expired shortly after commencement of the term of the Licensing Agreement. One Australian patent (being the patent numbered nine in the schedule) was valid for most, but not all, of the five year term of the licence. The defendant contended that it was an express or implied term of the Licensing Agreement that the plaintiffs vouched that each of the patents listed in the schedule was operative at the time of the commencement of the Licensing Agreement and undertook that each of the ten patents would remain operative throughout the licence period, including the period of any renewed licence following the exercise of the defendant's option. The Court accepted this as an express or an implied term and found that the plaintiffs were in breach thereby entitling the defendant to terminate the Licensing Agreement. In addition, the matter involved the effect of a number of representations that were found to have been made and which it was held were misleading and deceptive.
In this matter claims were made for money said to be owing pursuant to an agreement. The matter also involved claims for security for costs and an application to amend pleadings.
This matter involved issues of contractual construction concerning price increases associated with large scale waste recycling and the ambit of any such determination.
These proceedings involved claims for declarations and damages as well as specific performance of various agreements which facilitated parties to mine iron ore. Claims were made that there was been a failure by the defendants to pay royalties in accordance with the relevant agreements. In addition, claims have been made for restitution and rectification. The matter involved the following interlocutory applications which are further detailed in this website under the Practice Area heading, Practice and Procedure on this web-site:
Mineralogy Pty Ltd v Sino Iron Pty Ltd, Korean Steel Pty Ltd and CITIC Ltd (Supreme Court of Western Australia, CIV 2303 of 2015). These proceedings involved a claim for substantial damages said to have arisen in consequence of alleged breaches of contract by failing to pay royalties and other breaches of essential contractual terms. There were also interlocutory applications in this matter including following application which is further detailed on this website under the Practice Area heading, Practice and Procedure:
This matter arose out of what came to be known as the Smartpole Project developed by the City of Sydney in around 1996/1997 in preparation for the 2000 Sydney Olympic Game. The main proceedings dealt with a number of matters including claims in contract and misleading and deceptive conduct and the failure to take reasonable care. The matter also dealt with relief undersection 87(2) of the Trade Practices Act and equitable duties including the duty of confidence.
This matter involved a dispute concerning a contract of sale relating to a hotel. Allegations of breach of duty of a broker, breach of fiduciary duty and misleading and deceptive conduct together with issues of reliance were also raised. The matter also included an application to vacate the hearing.
This matter involved a claim against a fire assessment expert engaged the Defendant to prepare a bush fire protection assessment report for a proposed development involving a retirement village to be constructed within a bush fire-prone area as defined under Planning for Bush fire Protection 2001. The claim the assessor was in negligence, breach of contract involved allegations of misleading and deceptive conduct. Questions of causation and damages including loss of a chance to develop the property were also raised as was the issue of whether other persons were concurrent wrongdoer within the meaning of Part 4 of the Civil Liability Act 2002 and/or Part VIA of the Trade Practices Act.
This matter involved a debt claim that was alleged to be pursuant to an equitable assignment. The matter also included an application to amend a statement of claim and an application for security of costs.
In this matter claims of misleading and deceptive conduct, breach of agreement and negligence were made.
This matter concerned allegations of breach of agreement, numerous alleged contraventions of the Trade Practices Act and Fair Trading Act and allegations of breaches of duty of care.
This matter involved claims for misleading and deceptive conduct, breach of contract and claims pursuant to section 82 of the Trade Practices Act.
This matter involved allegations of breach of contract and bailment as well as negligence arising out of a failure to take reasonable care in relation to a damaged boat.
In this matter the plaintiff claimed for monies received by the defendant and the defendant, by way of cross-claim sought the return of certain equipment.
This matter involved claims for breach of retainer said to have been constituted by a failure to pay invoices for professional services.
This matter involved a dispute concerning the terms of a distribution agreement. It also involved an application for expedition.
This matter concerned a claim in contract and was based upon allegations that the defendant had improperly made payments to herself without authority and in excess of her remunerative entitlements.
This matter involved allegations of breach of a consultancy agreement.
This matter involved a claim for damages for alleged breach of contract said to have been constituted by non-delivery of a boat.
This matter involved a claim for refund of the balance of the purchase price relating to the sale of a business.
This matter involved a damages claim arising from a loan and mortgage.
This matter involved claims for breach of contract and damages.
In this matter claims for negligence and breach of retainer were made and which were pleaded to have resulted in payroll tax obligations.
This matter involved the construction of an agency agreement and claims for unpaid agent’s commission.
This matter involved a dispute in relation to two loans.
This matter involved a damages claim arising out of allegations of breach of an employment contract.
This matter raised issues surrounding a retainer and whether there had been a breach. Issues of confidentiality were also raised.
This matter concerned whether or not there existed an enforceable contract to sell cattle.
This matter involved allegations of breach of contract and breach of duty of care.
This matter involved a breach of duty of care which was said to be owed by a managing real estate agent. In addition, a question arose as to whether a loss was said to be suffered by an insurer when they paid out an insured in circumstances where there was a question surrounding the true value of the items insured.
This matter concerned whether or not a contract existed.
This matter concerned allegations of breach of contract.
