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.
This matter was a class action in which damages were claimed against medical practitioners by the plaintiffs, in their own right and on behalf of group members, being individual patients who had breast augmentation surgery at identified premises and whose surgery was performed by or with the assistance of one or more of 12 doctors in accordance with an alleged standard approach described in the pleadings as the “One Size Fits All Approach”. Allegations of negligence, breaches ss 60, 61(1) and 61(2) of the Australian Consumer Law in relation to supply of services and allegations of misleading and deceptive conduct were pleaded. Issues of limitations and non-availability of certain causes of action were pleaded as part of the defendants’ responses.
The proceedings were originally set down for a 12–14-week hearing in the Supreme Court of NSW but were subsequently settled after an appeal to the NSW Court of Appeal concerning, inter alia, an application to declass the proceedings.
As noted under the Practice Area, Contract Law, this matter involved claims in contract and under the Australian Consumer Law. In particular, questions arose as to whether the parties became bound by an implied agreement as the result of misleading or deceptive conduct and whether loss or damage was caused by misleading or deceptive conduct. 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).
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.
This matter involved claims against a seller of property as well as against a real estate agent in which claims of misleading and deceptive conduct were made. The matter is also referred to under the Practice Area, Insurance – Professional Indemnity – Real Estate Agents and Business Brokers contained on this web-site.
This matter was transferred from the District Court in 2020 in consequence of jurisdictional issues raised on the pleadings. and raised issues of debt, the validity of a general meeting together with the validity of certain expulsion-related resolutions which were passed at that meeting, allegations of uncommercial conduct and unconscionability. Trust claims were made by way of cross-claim. The claims made by the plaintiff were dismissed and the cross-claim based upon a claim for money had and received was upheld. The decision at first instance was upheld on appeal by the NSW Court of Appeal. This matter is summarised under the Practice Area Headings, Company and Associations Law – disputes involving Corporate Constitution and Practice and Procedure – Transfer of Proceedings contained on this web-site.
This matter involved an appeal from the decision of Ball J (Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank of Queensland Limited (ACN 009656 740) (No 17) and 13 related matters [2014] NSWSC 55) which dealt with 10 separate franchise cases involving the Bank of Queensland and certain branch owner-managers. The appeals in all 10 matters raised issues concerning the trial judge’s handling of allegations of misleading or deceptive conduct said to have arisen in relation to the negotiation and formation of franchise agreements under which franchisees operated branches as agents of a bank. Issues of whether alleged statements made by the bank as to volumes of future business were statements as to what franchisees will likely achieve or statements regarding hypothetical possibility. Issues of “silence” in the context of the bank not volunteering information regarding business volumes achieved by existing franchisees were raised and whether maintaining of silence on that matter was misleading or deceptive conduct.
This matter dealt with a number of matters including claims in contract and allegations of misleading and deceptive conduct and the failure to take reasonable care. The matter also dealt with relief under section 87(2) of the Trade Practices Act.
This appeal was from a decision of Buchanan J [2010] FCA 1010 and involved claims for negligence, misleading and deceptive conduct, unconscionability, and breach of contract against a Bank who operated a franchise network of branches.
This matter involved an application by a representative party, who, together with other group members, were clients of a financial services business conducted by the respondent (Masu) between 2003 and late 2005 and who, in reliance on advice given by Masu, invested in one or more financial products known as "Westpoint Products", and suffered loss as a result. The contention was that Masu acted negligently, in breach of contract and engaged in misleading and deceptive conduct. In addition, there were claims for breach of section 912A Corporations Act. These particular proceedings involved an application to rely upon a proposed further amended statement of claim.
This matter concerned allegations of misleading or deceptive conduct alleged to have been made in relation to the sale of master licences to use and to licence others the use of a 1800 telephone number and relevant know-how including, “business systems”, “business models” and “business plans”. Issues in relations to the application of sections 52 and 75B of the Trade Practices Act were raised.
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 who had been engaged 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 was that the assessor acted negligently and in breach of contract and also engaged in 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 wrongdoers within the meaning of Part 4 of the Civil Liability Act 2002 and/or Part VIA of the Trade Practices Act.
In this matter claims of misleading and deceptive conduct, breach of agreement and negligence were made.
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, which ultimately was resolved in the High Court, involved allegations of misleading conduct and the application of certain disclaimers. A question arose as to whether an advertising brochure distributed by a real estate agent conveyed a misrepresentation by their principal only and not by the real estate agent who was merely passing on information.
This matter involved claims for breach of contract, negligence and sections 12GF and 12GM of the Australian Securities Investments Commission Act. It also involved issues concerning damages.
Allegations of misleading and deceptive conduct were raised in this matter.
This matter dealt with significant contract issues concerning whether stopping payment on a cheque constituted repudiation. In addition, a question arose as to whether a real estate agent's brochure was misleading and deceptive and whether that conduct was referable only to their principal. This case was eventually determined in favour of the real estate agent in the High Court.
This matter involved significant damages claims for alleged breach of provisions of the Sale of Goods Act and for misleading and deceptive conduct in relation to dairy milking equipment that had been purchased. It also involved an application to strike out the proceedings.
This matter involved claims for breaches of sections 51AA [unconscionability], 52 [misleading and deceptive conduct] and 51AC [unconscionability] of the Trade Practices Act. It also involved claims of breaches of the Retail Leases Act and of derogation of grant.
This matter raised allegations of breaches of sections 52 and 53A of the Trade Practices Act, section 83AB of the Property Stock & Business Agents Act as well as claims for contribution and indemnity.
This matter involved claims for misleading and deceptive conduct and claims for damages under section 82 of the Trade Practices Act 1974 (Cth) or, in the alternative, damages pursuant to section 12GF of the Australian Securities and Investments Commission Act 1989.
