Smith v Ward [1999] NSWSC 138

Smith v Ward [1999] NSWSC 138

The first defendant breached the franchise agreement and restraint clause, and the plaintiff's damages were properly measured by the royalties and product sale profits it would have received during the relevant period, subject to correcting the mark-up calculation. Interest was awarded under s 94. The plaintiff was entitled to costs against the first defendant, the fourth defendant was entitled to costs against the plaintiff, no Bullock or Sanderson order was appropriate because the uncertainty about the proper defendant was substantially attributable to the plaintiff, and the cross-claimants were to pay the cross-defendants' costs of the failed cross-claim.

Jurisdiction
Australia
Judgment Date
24 February 1999
Procedural Posture
Equity Division Proceedings Concerning Breach of a Franchise Agreement and Restraint Clause, Damages, Interest, Costs, and a Cross Claim / Final Orders After Reasons on Substantive Issues; Contested Issues Were Damages, Costs on the Claim and Cross Claim, and Costs of an Application to Amend the Defence to the Cross Claim
Outcome
Judgment for the plaintiff against the first defendant for damages and interest; statement of claim otherwise dismissed; cross-claim dismissed; costs orders made.
Legal Topics
['breach of Franchise Agreement' 'restraint Clause' 'damages for Breach of Contract' 'interest on Damages' 'bullock or Sanderson Order' 'costs Where Damages Less Than $75, 000' 'amendment of Pleadings' 'cross Claim']
['contract Law' 'civil Procedure' 'costs'] ['breach of Franchise Agreement' 'restraint Clause' 'damages for Breach of Contract' 'interest on Damages' 'bullock or Sanderson Order' 'costs Where Damages Less Than $75,000' 'amendment of Pleadings' 'cross Claim']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Breach of a Franchise Agreement and Restraint Clause, Damages, Interest, Costs, and a Cross Claim / Final Orders After Reasons on Substantive Issues; Contested Issues Were Damages, Costs on the Claim and Cross Claim, and Costs of an Application to Amend the Defence to the Cross Claim

Legal Issues

  1. 1 ["What damages should be awarded for the first defendant's breach of the franchise agreement and restraint clause." 'Whether interest should be awarded on the damages and how it should be calculated.' 'What costs orders should be made on the claim and cross-claim.' "Whether a Bullock or Sanderson order should be made so that the fourth defendant's costs would be borne by the first defendant." "What costs order should be made for the cross-defendants' application to amend the defence to the cross-claim."]

Ratio Decidendi

The first defendant breached the franchise agreement and restraint clause, and the plaintiff's damages were properly measured by the royalties and product sale profits it would have received during the relevant period, subject to correcting the mark-up calculation. Interest was awarded under s 94. The plaintiff was entitled to costs against the first defendant, the fourth defendant was entitled to costs against the plaintiff, no Bullock or Sanderson order was appropriate because the uncertainty about the proper defendant was substantially attributable to the plaintiff, and the cross-claimants were to pay the cross-defendants' costs of the failed cross-claim.

Court Disposition

Judgment for the plaintiff against the first defendant for damages and interest; statement of claim otherwise dismissed; cross-claim dismissed; costs orders made.

Orders

  • ['Judgment for the plaintiff against the first defendant on the Statement of Claim in the sum of $27,511.28 together with interest thereon of $6,642.08.' 'Statement of Claim otherwise dismissed.' 'Cross-claim dismissed.' "Order that the plaintiff pay the defendants' costs of its motion to restrain the enforcement of...