Wallera P/L v CGM Investments P/L & Anor [2001] NSWSC 96

Wallera P/L v CGM Investments P/L & Anor [2001] NSWSC 96

The notice of 5 August 1999 was not a valid notice under clause 8 because it referred generally to failure to use required levels of chemicals without stating what those levels were or where they could be found, and it did not identify the alleged breach with sufficient precision. Further, the defendants did not prove any specific breach by Wallera of the Franchise Agreement. Accordingly, the purported termination was ineffective and the Franchise Agreement remained binding.

Jurisdiction
Australia
Judgment Date
01 March 2001
Procedural Posture
Equity Division Proceedings for Declarations and Injunctions Concerning a Franchise Agreement, With Cross Claim / Final Judgment After Hearing; Defendants' Motion for Judgment Under Part 34 Rule 8 Not Dealt With Separately
Outcome
Declarations for Wallera; injunctive relief refused as premature; Cross Claim dismissed; defendants ordered to pay costs.
Legal Topics
['termination of Franchise Agreement for Breach' 'sufficiency of Notice of Breach' 'use of Chemicals and Process Under Franchise Agreement' 'motion for Judgment Under Supreme Court Rules, Pt 34 R 8']
['contract Law' 'franchising' 'civil Procedure' 'equity'] ['termination of Franchise Agreement for Breach' 'sufficiency of Notice of Breach' 'use of Chemicals and Process Under Franchise Agreement' 'motion for Judgment Under Supreme Court Rules, Pt 34 R 8']

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Procedural Posture

Equity Division Proceedings for Declarations and Injunctions Concerning a Franchise Agreement, With Cross Claim / Final Judgment After Hearing; Defendants' Motion for Judgment Under Part 34 Rule 8 Not Dealt With Separately

Legal Issues

  1. 1 ["Whether CGM's notice dated 5 August 1999 was a valid notice of breach for the purposes of clause 8 of the Franchise Agreement." 'Whether Wallera breached the Franchise Agreement by failing to use the process in a proper and businesslike manner or by failing to apply required levels of chemicals.' "Whether the defendants' motion for judgment under Part 34 rule 8 was appropriate where counsel addressed generally on all aspects of the case."]

Ratio Decidendi

The notice of 5 August 1999 was not a valid notice under clause 8 because it referred generally to failure to use required levels of chemicals without stating what those levels were or where they could be found, and it did not identify the alleged breach with sufficient precision. Further, the defendants did not prove any specific breach by Wallera of the Franchise Agreement. Accordingly, the purported termination was ineffective and the Franchise Agreement remained binding.

Court Disposition

Declarations for Wallera; injunctive relief refused as premature; Cross Claim dismissed; defendants ordered to pay costs.

Orders

  • ['Declarations claimed in paragraphs 1 and 2 of the Summons are to be made.' 'Orders sought in paragraphs 3 and 4 of the Summons are premature.' 'The Cross Claim is dismissed.' 'The defendants are to pay the costs of the proceedings.']