Mr Whippy Pty Ltd v Oceanwalk Pty Ltd [2008] NSWCA 8

New South Wales Court of Appeal

CITATION: Mr Whippy Pty Ltd v Oceanwalk Pty Ltd [2008] NSWCA 8

HEARING DATE(S): 4 December 2007

JUDGMENT DATE: 19 February 2008

JUDGMENT OF: Giles JA at 1; Handley AJA at 90; Howie J at 91

DECISION: Appeal dismissed with costs.

CATCHWORDS: Contract - master franchise agreement - option for renewal - if and only if master franchisee had been and was in full compliance with the agreement for its term - whether breach of obligation to use best endeavours to locate retail outlets - or of obligation to furnish written reports on conduct of retail outlets - agreement novated to new master franchisor - consideration of what was the relevant term - and of what was required by way of best endeavours and for timely reporting - on facts, no breaches.

CATEGORY: Principal judgment

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 3000; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Bell v Thompson (1934) 34 SR 431; B S Stillwell & Co Pty Ltd v Budget Rent-a-car System Pty Ltd (1990) VR 576; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473; CASES CITED: Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1959) 59 SR 122; Hospital Products Ltd v United Surgical Corporation (1984) 156 CLR 41; Olsson v Dyson (1969) 120 CLR 365; Toikan International Insurance Broking Pty Ltd v Plasteel Windows Australia Pty Ltd (1989) 15 NSWLR 641; Vickery v Woods (1952) 85 CLR 36; Waverley Municipal Council v Swain [2003] NSWCA 61; (2003) Aust Torts Rep 81-694.

PARTIES: Mr Whippy Pty Ltd - Appellant Oceanwalk Pty Ltd - Respondent