Juice Station Franchising Pty Ltd (in liq) & Ors v Konidaris & Ors; Nandaway Pty Ltd & Ors v Juice Station Franchising & Ors [2006] NSWSC 1024

Juice Station Franchising Pty Ltd (in liq) & Ors v Konidaris & Ors; Nandaway Pty Ltd & Ors v Juice Station Franchising & Ors [2006] NSWSC 1024

The stay was refused because the applicants did not establish a serious question to be tried. There was little prospect of success in obtaining relief under Trade Practices Act 1974 (Cth), s 87(2)(g) in the circumstances, particularly where the applicants had instigated termination of the agreement and damages would be a sufficient remedy if the Acting Justice's orders were set aside on appeal.

Jurisdiction
Australia
Judgment Date
26 September 2006
Procedural Posture
Notice of Motion for Stay of Execution of Writ of Possession Pending Appeal / Application Before Gzell J Following Orders by Macready as J
Outcome
Application for stay refused with costs; notice of motion dismissed.
Legal Topics
['stay of Proceedings' 'stay of Execution' 'writ of Possession' 'serious Question to Be Tried' 'trade Practices Act 1974 (cth), S 87(2)(g)' 'termination of Franchise Agreement']
['civil Procedure' 'trade Practices' 'franchising' 'property'] ['stay of Proceedings' 'stay of Execution' 'writ of Possession' 'serious Question to Be Tried' 'trade Practices Act 1974 (cth), S 87(2)(g)' 'termination of Franchise Agreement']

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Procedural Posture

Notice of Motion for Stay of Execution of Writ of Possession Pending Appeal / Application Before Gzell J Following Orders by Macready as J

Legal Issues

  1. 1 ['Whether execution of the writ of possession ordered by Macready AsJ should be stayed until further order pending the determination of an appeal.' 'Whether the applicants established a serious question to be tried in relation to relief under Trade Practices Act 1974 (Cth), s 87(2)(g) concerning a terminated franchise agreement and licence agreement.' 'Whether damages would be a sufficient remedy if the orders of the Acting Justice were set aside on appeal.']

Ratio Decidendi

The stay was refused because the applicants did not establish a serious question to be tried. There was little prospect of success in obtaining relief under Trade Practices Act 1974 (Cth), s 87(2)(g) in the circumstances, particularly where the applicants had instigated termination of the agreement and damages would be a sufficient remedy if the Acting Justice's orders were set aside on appeal.

Court Disposition

Application for stay refused with costs; notice of motion dismissed.

Orders

  • ['The notice of motion is dismissed.' "The applicants are to pay the plaintiffs' costs in matter numbered 5156 of 2005." "The applicants are to pay the respondents' costs in matter numbered 3058 of 2006."]