Brand2Content Pty Ltd t/as Franchise Works v Solar Australia Pty Ltd [2018] NSWSC 56

Supreme Court New South Wales

Medium Neutral Citation: Brand2Content Pty Ltd t/as Franchise Works v Solar Australia Pty Ltd [2018] NSWSC 56 Hearing dates: 4 to 7 December 2017 Decision date: 07 February 2018 Jurisdiction: Equity - Commercial List Before: Ball J Decision: (1) Judgment for the plaintiff in the sum of $771,611.11. (2) The cross-claim be dismissed. Catchwords: CONTRACTS – Breach of contract – Consequences of breach – Right to termination – Innominate terms – Principle from Koompahtoo case CONTRACTS – Construction – Interpretation – Whether franchise consultant's negotiation of sponsorship agreements without authorisation from client breached obligation to act in good faith CONTRACTS – Construction – Whether an exclusivity provision prohibited sponsorship fundraising by franchise consultant CONTRACTS – Construction – Whether client's authorisation for inclusion of unusual terms by franchise consultant was required CONTRACTS – Construction – Interpretation – Whether consultant breached obligation to act in good faith by failing to follow client's instructions, misleading client, failing to provide honest answers to client CONTRACTS – Construction – Interpretation – Whether consultant's obligation to act in good faith was breached by failure to inform client about special condition TRADE AND COMMERCE – Competition and Consumer Act 2010 (Cth) and related legislation – Misleading or deceptive conduct – Whether misleading or deceptive representations about an approval requirement for unusual terms and an exclusive territory of operation were made EVIDENCE – Opinion evidence – Exceptions – Expert opinion – Whether chartered accountant had specialised knowledge or sufficient evidence to make assumption about likely number of future sales CONTRACTS – Termination – Election – Whether parties agreed to terminate CONTRACTS – Termination – Repudiation of contract – Express refusal to perform CONTRACTS – Remedies – Damages – Loss of chance – Reasonableness of assuming completion of further franchise agreements after breakdown of client-franchise consultant relationship Legislation Cited: Australian Consumer Law s 18 Cases Cited: Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268 Category: Principal judgment Parties: Brand2Content Pty Ltd t/as Franchise Works (ACN 157 910 819) (Plaintiff | First Cross Defendant) Timothy Hugh Dixon (Second Cross Defendant) Solar Australia Pty Ltd (ACN 129 328 490) (First Defendant | First Cross Claimant) Get Off the Grid Pty Ltd (ACN 603 703 153) (Second Defendant | Second Cross Claimant) Solar Australia Franchising Pty Ltd (ACN 607 822 257) (Third Defendant | Third Cross Claimant) Solar and Batteries Australia Pty Limited (Fourth Cross Claimant) Representation: Counsel: S Balafoutis with R Clark (Plaintiff | Cross Defendants) MG McHugh SC with AD Justice (Defendants | Cross Claimants)