Kilimanjaro Consulting Pty Ltd v MYOB Australia Pty Ltd [2023] FCA 922

Kilimanjaro Consulting Pty Ltd v MYOB Australia Pty Ltd [2023] FCA 922

There is a serious question to be tried regarding whether the respondent's right to vary the annual licence fee margin is constrained by implied contractual duties, the statutory duty of good faith, and the prohibition on unconscionable conduct; and the balance of convenience favours maintaining the status quo through interlocutory relief, as damages would not be an adequate remedy for the applicant.

Jurisdiction
Australia
Judgment Date
04 August 2023
Procedural Posture
Interlocutory Application / Interlocutory Injunction – Ruling on Application
Outcome
Interlocutory injunction partially granted
Legal Topics
['interlocutory Injunctions' 'contractual Variation' 'good Faith' 'unconscionable Conduct' 'franchise Code' 'commercial Contracts']
['equity' 'commercial Law'] ['interlocutory Injunctions' 'contractual Variation' 'good Faith' 'unconscionable Conduct' 'franchise Code' 'commercial Contracts']

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Procedural Posture

Interlocutory Application / Interlocutory Injunction – Ruling on Application

Legal Issues

  1. 1 ["Whether there is a serious question to be tried regarding constraints on the respondent's right to vary the licence fee margin" 'Whether concepts of good faith and unconscionability operate to constrain contractual power' 'Whether the balance of convenience favours an interlocutory injunction' 'Whether damages are an adequate remedy']

Ratio Decidendi

There is a serious question to be tried regarding whether the respondent's right to vary the annual licence fee margin is constrained by implied contractual duties, the statutory duty of good faith, and the prohibition on unconscionable conduct; and the balance of convenience favours maintaining the status quo through interlocutory relief, as damages would not be an adequate remedy for the applicant.

Court Disposition

Interlocutory injunction partially granted

Orders

  • ['Until further order, the respondent is restrained from taking any action for breach of contract under the Business Partner Agreement by reason only of the applicant paying 65% of the Annual Licence Fee to the respondent.' 'Until further order, the respondent is restrained from withholding licence codes for MYOB...