Visionmax v Budget Specs (Franchising) [2005] FCA 1487

FEDERAL COURT OF AUSTRALIA Visionmax v Budget Specs (Franchising) [2005] FCA 1487 PRACTICE AND PROCEDURE – INJUNCTION – Application (heard in conjunction with an application in Luce Optical and Budget Specs (Franchising) – QUD370/2005) for an interlocutory injunction to restrain the exercise of a power of termination – construction of two franchise agreements – exercise of powers of inspection and examination upon reasonable notice – consideration of implied term to act in good faith, fairly and reasonably in the exercise of a power – consideration of whether particular obligation expression of a proper construction of the agreement or an incident of the implied duty of good faith – consideration of whether reliance upon an independent audit report precluded by breach of franchise agreement or breach of implied duty – consideration of serious question and balance of convenience. Luce Optical Pty Ltd v Budget Specs (Franchising) [2005] FCA 1486 VISIONMAX PTY LIMITED v BUDGET SPECS (FRANCHISING) PTY LIMITED QUD 369 OF 2005 GREENWOOD J 20 OCTOBER 2005 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD369 OF 2005

BETWEEN: VISIONMAX PTY LIMITED

APPLICANT

AND: BUDGET SPECS (FRANCHISING) PTY LIMITED

RESPONDENT

JUDGE: GREENWOOD J

DATE OF ORDER: 20 OCTOBER 2005

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. Upon the Applicant and Max Sarracino giving the usual undertaking as to damages, the Respondent by itself, its servants and agents or otherwise howsoever, is, until the trial of the action or earlier order, restrained from acting upon or implementing a Notice of Termination dated 15 September 2005 of a franchise agreement made between the Applicant as franchisee and the Respondent as franchisor on 22 December 1997. 2. Costs of the Application be reserved. 3. The proceeding shall be listed for review at 9.30am on Tuesday, 25 October 2005 for directions.