Sureslim Australia v Mansell [2002] NSWSC 945

New South Wales Supreme Court

CITATION : Sureslim Australia v Mansell [2002] NSWSC 945 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 2280 of 2002 HEARING DATE(S) : 22-26 July 2002 JUDGMENT DATE : 11 October 2002

Sureslim Australia Pty Limited (Plaintiff/First Cross Defendant) Andew Robert Mansell (First Defendant/First Cross Claimant) Joanne Helen Mansell (Second Defendant/Second Cross Claimant) PARTIES : Ian Finlayson (Third Defendant/Third Cross Claimant) The Weight Professionals Pty Limited (Fourth Defendant) Calvin Tulloch (Second Cross Defendant) Petro Tulloch (Third Cross Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr R Kaye (Plaintiff/Cross Defendants) Mr G McVay (Defendants/Cross Claimants) SOLICITORS : Lazarus Smith Lawyers (Plaintiff/Cross Defendants) Spencer Whitby (Defendants/Cross Claimants) CATCHWORDS : CONTRACT - breach - whether non-payment of franchise fee amounts to breach of the franchise agreement - RESTRAINT OF TRADE - whether a restraint of trade clause is too wide and therefore against public policy - whether the franchisees should be restrained from setting up and operating a business in competition to the business previously conducted under the franchise agreement - TRADE PRACTICES ACT - misleading deceptive and unconscionable conduct - whether alleged representations made about the franchise business were misleading and deceptive under s52 of the Trade Practices Act - whether the conduct of the franchisor was unconscionable under s51AC Fair Trading Act 1987 LEGISLATION CITED : Restraints of Trade Act 1976 s4(1) Trade Practices Act 1974 s51AC, s52 CASES CITED : ICT Pty Ltd & Buquebus International Ltd v Sea Containers Ltd (1995) 39 NSWLR 640 Orton & Ors v Melman [1981] 1 NSWLR 583 DECISION : See paragraphs 41 to 44