Gregory John King v Cake It Away Pty Ltd and ors [2003] NSWIRComm 242

Gregory John King v Cake It Away Pty Ltd and ors [2003] NSWIRComm 242

The fifth respondent, acting for the first to seventh respondents, made misleading income representations that materially induced the appellant to enter the franchise agreement, so the agreement was unfair under s106. However, discretionary relief was not warranted because the appellant had opportunities to withdraw before trading, misled the Bank and franchisor about his financial position, failed to adhere to franchise operating instructions, disregarded warnings in the documentation, and failed to obtain or follow appropriate advice. No relevant error was shown in the findings rejecting unfairness against the eighth and ninth respondents. Leave was therefore refused against the eighth...

Jurisdiction
Australia
Judgment Date
21 November 2003
Procedural Posture
Application for Leave to Appeal and Appeal Under S191 of the Industrial Relations Act 1996 From a Decision Dismissing a Summons for Relief Under S106 of the Act / Full Bench Determination of Leave to Appeal and Appeal From the Judgment of Marks J Given on 12 July 2002
Outcome
Leave to appeal refused as to the eighth and ninth respondents; leave to appeal granted as to the first to seventh respondents; appeal dismissed.
Legal Topics
['unfair Contracts Under S106 of the Industrial Relations Act 1996' 'misrepresentation Inducing Entry Into a Franchise Agreement' 'appeals Under S191 of the Industrial Relations Act 1996' 'discretionary Relief' 'franchise Income Projections' 'bank Finance for Franchise Purchase']
['industrial Relations' 'contract Law' 'franchising' 'banking and Finance'] ['unfair Contracts Under S106 of the Industrial Relations Act 1996' 'misrepresentation Inducing Entry Into a Franchise Agreement' 'appeals Under S191 of the Industrial Relations Act 1996' 'discretionary Relief' 'franchise Income Projections' 'bank Finance for Franchise Purchase']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Under S191 of the Industrial Relations Act 1996 From a Decision Dismissing a Summons for Relief Under S106 of the Act / Full Bench Determination of Leave to Appeal and Appeal From the Judgment of Marks J Given on 12 July 2002

Legal Issues

  1. 1 ['Whether Marks J correctly applied s106 of the Industrial Relations Act 1996 to the franchise agreement and related arrangements' 'Whether oral and documentary income projections by the fifth respondent constituted misrepresentation inducing the appellant to enter into the franchise agreement' 'Whether any misrepresentation gave rise to unfairness under s106 and whether discretionary relief should be granted' 'Whether the appellant established unfairness against the eighth and ninth respondents arising from the financing arrangements' 'Whether leave to appeal should be granted against the respective respondents']

Ratio Decidendi

The fifth respondent, acting for the first to seventh respondents, made misleading income representations that materially induced the appellant to enter the franchise agreement, so the agreement was unfair under s106. However, discretionary relief was not warranted because the appellant had opportunities to withdraw before trading, misled the Bank and franchisor about his financial position, failed to adhere to franchise operating instructions, disregarded warnings in the documentation, and failed to obtain or follow appropriate advice. No relevant error was shown in the findings rejecting unfairness against the eighth and ninth respondents. Leave was therefore refused against the eighth...

Court Disposition

Leave to appeal refused as to the eighth and ninth respondents; leave to appeal granted as to the first to seventh respondents; appeal dismissed.

Orders

  • ['Leave to appeal is refused with respect to the eighth and ninth respondents.' 'Leave for appeal is granted with respect to the first to seventh respondents.' 'The appeal is dismissed.' 'Any party wishing to seek costs must make an application in writing within seven days; if such an application is made, a date...