Narellan Franchise Pty Ltd v RBME Pty Ltd [2023] NSWCA 139

Narellan Franchise Pty Ltd v RBME Pty Ltd [2023] NSWCA 139

The appeal was incompetent because the primary judge's orders were interlocutory for the purposes of s 101(2)(e) of the Supreme Court Act 1970 (NSW): they dismissed only prayers 1-8 of the amended statement of claim and left pecuniary and other claims undetermined. Leave to appeal was refused because the 12 month restraint period had expired, no injunctive relief could be ordered, and the appellants sought for the first time on appeal a declaration going beyond and differing from the relief effectively litigated before the primary judge. The construction and effect of the restraint clauses remained live issues in the Equity Division proceedings and had not been determined below after full...

Jurisdiction
Australia
Judgment Date
23 June 2023
Procedural Posture
Appeal and Summons Seeking Leave to Appeal / Court of Appeal From Orders of the Supreme Court of New South Wales, Equity Division – Expedition List
Outcome
Notice of appeal dismissed as incompetent; summons seeking leave to appeal dismissed; appellants ordered to pay respondents' costs in this Court.
Legal Topics
['leave to Appeal' 'interlocutory Decision' 'final Injunctions' 'declaratory Relief' 'post Contractual Restraint of Trade' 'separate Question' 'franchise Agreements' 'costs']
['appeals' 'contract Law' 'equity' 'restraint of Trade' 'franchising'] ['leave to Appeal' 'interlocutory Decision' 'final Injunctions' 'declaratory Relief' 'post Contractual Restraint of Trade' 'separate Question' 'franchise Agreements' 'costs']

Case Brief

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Procedural Posture

Appeal and Summons Seeking Leave to Appeal / Court of Appeal From Orders of the Supreme Court of New South Wales, Equity Division – Expedition List

Legal Issues

  1. 1 ["Whether the primary judge's decision refusing final injunctions while pecuniary claims remained undetermined was interlocutory for the purposes of s 101(2)(e) of the Supreme Court Act 1970 (NSW)." 'Whether the appellants had an appeal as of right or required leave to appeal.' 'Whether leave to appeal should be granted after the 12 month post-contractual restraint period had expired and the appellants sought only declaratory relief.' 'Whether the Court should determine questions of construction, validity and enforceability of the restraint clauses that the primary judge had not determined.']

Ratio Decidendi

The appeal was incompetent because the primary judge's orders were interlocutory for the purposes of s 101(2)(e) of the Supreme Court Act 1970 (NSW): they dismissed only prayers 1-8 of the amended statement of claim and left pecuniary and other claims undetermined. Leave to appeal was refused because the 12 month restraint period had expired, no injunctive relief could be ordered, and the appellants sought for the first time on appeal a declaration going beyond and differing from the relief effectively litigated before the primary judge. The construction and effect of the restraint clauses remained live issues in the Equity Division proceedings and had not been determined below after full...

Court Disposition

Notice of appeal dismissed as incompetent; summons seeking leave to appeal dismissed; appellants ordered to pay respondents' costs in this Court.

Orders

  • ['In 2022/381924: Notice of appeal filed on 22 February 2023 dismissed as incompetent.' "In 2022/381924: The appellants to pay the respondents' costs of the proceedings in this Court." 'In 2023/198235: Summons seeking leave to appeal dated 20 June 2023 dismissed.' "In 2023/198235: The appellants to pay the...