Hungry Jack's v Burger King (No 2) [2000] NSWSC 241

New South Wales Supreme Court

CITATION : Hungry Jack's v Burger King (No 2) [2000] NSWSC 241 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50258/96 HEARING DATE(S) : 24/03/00 JUDGMENT DATE : 30 March 2000

Hungry Jack's Pty Limited - Plaintiff PARTIES : Burger King Corporation - First Defendant The Shell Company of Australia Limited - Second Defendant Burger King Australia Pty Limited - Third Defendant JUDGMENT OF : Rolfe J

COUNSEL : Mr N.C. Hutley SC/Mr T.D. Castle - Plaintiff Mr M.R. Ellicott - First and Third Defendants SOLICITORS : Mallesons Stephen Jaques - Plaintiff Corrs Chambers Westgarth - First and Third Defendants DECISION : Parties to bring in Short Minutes of Order.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

ROLFE J

THURSDAY, 30 MARCH 2000 50258/1996 - HUNGRY JACK'S PTY LIMITED v BURGER KING CORPORATION & ORS (NO 2)

JUDGMENT

HIS HONOUR:

Introduction 1 On 5 November 1999 I published my reasons for judgment. One of the conclusions to which I came was:- "(d) HJPL is entitled to rely upon the terms of the Franchise Agreements for the successor restaurants in relation to the renewal of those Agreements for a further period of fifteen years from the date of renewal, and BKC is not entitled to rely on the various Extension Agreements as in any way defining the rights in relation to the options contained in the Franchise Agreements." 2 In those reasons I referred to Hungry Jack's Pty Limited as "HJPL" and Burger King Corporation as "BKC", and I shall do so in these reasons. 3 I invited the parties to bring in Short Minutes of Order to reflect my conclusions, and I subsequently made orders conformably with the Short Minutes of Order presented by the parties. Although there was some argument about some of them, there was none about Order 4, which gave effect to the conclusion to which I have just referred as follows:- "Within 60 days of the making of these orders, BKC offer HJPL a franchise agreement permitting the use of the Burger King System and the Burger King Marks for each of the Burger King Restaurants situated at Fulham, Strathpine, Claremont, Ipswich, Springwood, Balga, Barrack St Perth, Beak House Brisbane, Bunbury and Bull Creek, in the form currently being used by BKC in the United States and otherwise in compliance with clauses 6.2, 6.3 and 9.1 of the Development Agreement, or in such other form as may be agreed between HJPL and BKC, for a further term of 15 years from the date of renewal, subject to: (a) In the case of Springwood, Barrack Street Perth and Bull Creek restaurants, HJPL advising BKC of its agreement to make such capital expenditures as may reasonably be required to renovate and modernise the restaurant buildings, premises, signs and equipment so as to reflect the current image of Burger King Restaurants, as agreed between the parties or as determined by arbitration pursuant to clause XIII of the franchise agreement for that restaurant; and (b) HJPL having the right to remain in possession of the premises, or other premises acceptable to BKC, for the new term." 4 On 17 January 2000 I ordered, by consent, that the time within which BKC was required to offer HJPL the Franchise Agreements pursuant to Order 4 be extended until 5 pm on Monday, 31 January 2000. 5 On 31 January 2000 I ordered, by consent, that that time be extended until 5 pm on Friday, 11 February 2000 and, on 11 February 2000, I made an order by consent that that time be extended for a further period ending at 5 pm on Friday, 18 February 2000.