Alpha Centauri Enterprises Pty Ltd v Mortgage House of Australia Pty Ltd [2009] NSWSC 333

New South Wales Supreme Court

CITATION : Alpha Centauri Enterprises Pty Ltd v Mortgage House of Australia Pty Ltd [2009] NSWSC 333

HEARING DATE(S) : 27, 28, 29, 30 April 2009; 11, 12, 13, 14, 15 & 18 May 2009

JUDGMENT DATE : 12 June 2009

JUDGMENT OF : Hammerschlag J

DECISION : Summons and Cross Claim dismissed. Plaintiffs to pay the defendants' costs of the proceedings, except for the costs of the cross claim. Cross claimants to pay the cross defendants' costs of the cross claim.

CATCHWORDS : CONTRACTS – rectification – whether agreements between the plaintiffs and defendants should be rectified to include a higher commission rate and an entitlement to 'telephone diversion leads' – held that there was no intention on the part of the defendants to include such terms in the contracts - general contractual principles - discharge, breach and defences to action for breach – whether the defendants breached express and implied terms of agreements between them and the plaintiffs – whether the defendants' termination of the agreements was valid and effective – defendants cross-claimed that the first plaintiff had breached express terms of the agreement between the parties – held that the first plaintiff had breached a term of the agreement but that the defendants had not established that any loss flowed from that breach - construction and interpretation– held that the defendants' construction of terms of the agreements between them and the plaintiffs was to be preferred as it accorded with the words used, and gave the terms a 'reasonable and sensible' meaning - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) and related legislation – whether the defendants had engaged in deceptive or misleading conduct or conduct likely to mislead or deceive in breach of s 52, in relation to the contents of agreements between the plaintiffs and the defendants and whether the first plaintiffs had established that it had suffered any damage as a result of any such conduct - whether the defendants had engaged in unconscionable conduct in breach of s 51AC, through engaging in misleading and deceptive conduct and failing to comply with disclosure requirements under the Franchising Code of Conduct - enforcement and remedies – whether the first plaintiff had proved any damage flowing from any misleading or deceptive, or unconscionable conduct on the part of the defendants - DAMAGES - assessment where the parties fail to provide raw material to which reference can be made to assess loss - STATUTES - by-laws and regulations – construction – whether the agreements entered into by the defendants and the plaintiffs were 'franchise agreements' under cl 4(1) of the Franchising Code of Conduct – whether the first plaintiff had voluntarily abandoned a franchise business or relationship under cl 23(c) of the Franchising Code of Conduct.