Biman International Pty Ltd v Amalgamated Security Services Pty Ltd [2003] FCA 801

Biman International Pty Ltd v Amalgamated Security Services Pty Ltd [2003] FCA 801

The strike out application failed because, on the hypothesis that the Master Licence Agreement and variation agreement were franchise agreements, contraventions of the Act were pleaded and it was common ground that the Code disclosure requirements had not been met. The applicant had also pleaded misleading or deceptive representations and causation by alleging it would not have proceeded had the disclosure and advice regime been followed. Its inability to identify in advance what the respondents would have disclosed did not make the claims speculative. Discovery was appropriate because the requested documents were relevant to what would or may have been disclosed, bore on pleaded earnings...

Jurisdiction
Australia
Judgment Date
01 August 2003
Procedural Posture
Trade Practices Act 1974 (cth) Franchising Code Proceeding / Interlocutory Dispute Concerning Pleadings and Discovery
Outcome
The first to third respondents' strike out application was dismissed; the applicant was directed to provide draft discovery orders; the first to third respondents were ordered to pay 85% of the applicant's costs of the strike out and discovery arguments; the proceeding was stood over for further directions.
Legal Topics
['franchising Code of Conduct' 'industry Codes' 'misleading or Deceptive Conduct' 'pleadings' 'strike Out' 'discovery']
['competition and Consumer Law' 'civil Procedure'] ['franchising Code of Conduct' 'industry Codes' 'misleading or Deceptive Conduct' 'pleadings' 'strike Out' 'discovery']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Trade Practices Act 1974 (cth) Franchising Code Proceeding / Interlocutory Dispute Concerning Pleadings and Discovery

Legal Issues

  1. 1 ['Whether paragraphs 7, 9A to 15A, 16, 17 and 19 and portions of paragraphs 18 and 20 of the Further Amended Statement of Claim should be struck out as inadequately pleaded, embarrassing, speculative or fishing.' 'Whether the Master Licence Agreement and variation agreement raised triable issues as franchise agreements for the purposes of the Code.' 'Whether discovery should be ordered in respect of documents relevant to the pleaded agreements, disclosure obligations, earnings information and customer complaints.']

Ratio Decidendi

The strike out application failed because, on the hypothesis that the Master Licence Agreement and variation agreement were franchise agreements, contraventions of the Act were pleaded and it was common ground that the Code disclosure requirements had not been met. The applicant had also pleaded misleading or deceptive representations and causation by alleging it would not have proceeded had the disclosure and advice regime been followed. Its inability to identify in advance what the respondents would have disclosed did not make the claims speculative. Discovery was appropriate because the requested documents were relevant to what would or may have been disclosed, bore on pleaded earnings...

Court Disposition

The first to third respondents' strike out application was dismissed; the applicant was directed to provide draft discovery orders; the first to third respondents were ordered to pay 85% of the applicant's costs of the strike out and discovery arguments; the proceeding was stood over for further directions.

Orders

  • ['The application of the first to third respondents to strike out paragraphs 7, 9A to 15A, 16, 17 and 19 and portions of paragraphs 18 and 20 of the Further Amended Statement of Claim be dismissed.' 'On or before 6 August 2003 the applicant file and serve a draft minute of order on the question of discovery and the...