SK Chop Pty Ltd v Man Cave Barber Shop Rouse Hill Pty Ltd [2021] NSWSC 410

SK Chop Pty Ltd v Man Cave Barber Shop Rouse Hill Pty Ltd [2021] NSWSC 410

The licence agreement provided an exhaustive code for termination in relation to breaches by the licensee, including a requirement for precise notice and opportunity to remedy. By its terms, the agreement excluded the licensor’s recourse to common law rights of termination for breach or repudiation in respect of such conduct. The notice given by the defendant failed to specify the exact nature of the alleged breaches and requirements to remedy, thus did not satisfy the contractual procedure. Even if common law rights were available, the breaches alleged by the defendant were either not made out on the evidence or were insufficiently serious to warrant termination. Accordingly, the...

Parties
First Plaintiff: SK Chop Pty Ltd (ACN 618 395 369); Second Plaintiff: Soheyl Khorasani; Defendant/cross Claimant: Man Cave Barber Shop Rouse Hill Pty Ltd (ACN 611 641 073)
Jurisdiction
Australia
Judgment Date
23 April 2021
Procedural Posture
Principal Judgment / Final Judgment
Outcome
For the plaintiffs; purported termination invalid and the licence continues.
Legal Topics
Construction of Contract, Termination for Breach or Repudiation, Exclusion of Common Law Remedies, Notice Requirements for Termination
Contracts Equity Construction of Contract Termination for Breach or Repudiation Exclusion of Common Law Remedies Notice Requirements for Termination

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Parties

SK Chop Pty Ltd (ACN 618 395 369)

First Plaintiff

Soheyl Khorasani

Second Plaintiff

Man Cave Barber Shop Rouse Hill Pty Ltd (ACN 611 641 073)

Defendant/cross Claimant

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Whether the licence agreement excluded the defendant’s common law right to terminate for breach or repudiation
  2. 2 Whether the breach notice and notice of termination served by the defendant complied with the contractual requirements
  3. 3 Whether the defendant could justify termination based on alternative common law grounds absent compliance with the contractual procedure

Ratio Decidendi

The licence agreement provided an exhaustive code for termination in relation to breaches by the licensee, including a requirement for precise notice and opportunity to remedy. By its terms, the agreement excluded the licensor’s recourse to common law rights of termination for breach or repudiation in respect of such conduct. The notice given by the defendant failed to specify the exact nature of the alleged breaches and requirements to remedy, thus did not satisfy the contractual procedure. Even if common law rights were available, the breaches alleged by the defendant were either not made out on the evidence or were insufficiently serious to warrant termination. Accordingly, the...

Court Disposition

For the plaintiffs; purported termination invalid and the licence continues.

Orders

  • Purported termination notices of 11 August 2020 of no effect.
  • Licence agreement remains on foot.