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 together with the decisions in Gan v Xie [2023] NSWCA 163 and Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 in the context of the form of affidavit evidence of conversations: see paragraphs [27]-[33] of the judgement.
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. A Notice of Intention to Appeal was filed shortly after judgment was given.
The matter also involved an application relating to the admissibility of an expert report on the basis that the report was said to be based upon facts not independently proved: see, Lindfield NSW Pty Ltd v Netdeen Pty Ltd trading as GJ Gardner Homes [2024] NSWSC 982.
As noted under the Practice Area, Contract Law, this matter involved claims in contract and the effect of misleading or deceptive conduct by silence. Part of the proceedings involved an attempt by the defendant to have admitted certain opinion evidence as expert opinion evidence.
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 section of this web-site, principles regarding electronic conveyancing were raised including the duty to cooperate in the context of PEXA settlement. Another issue which was raised concerned the admissibility of evidence of what a party would have done in a hypothetical situation. On the latter point see paragraphs [411]-[413] of the judgment.
This matter is referred to in the Real Property and Equity and Trusts sections on this web-site.
This application dealt with the application and interpretation of section 136 of the Evidence Act in the context of admissibility of evidence.
