De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 3) [2013] NSWDC 54

De Costi Seafoods (Franchises) Pty Limited and Anor v Wachtenheim and Anor (No 3) [2013] NSWDC 54

The cross-claimants failed to establish on the balance of probabilities that the alleged oral representations, aside from an innocuous admission as to business being 'good' or 'profitable', were made. Even if made, the representations did not constitute misleading or deceptive conduct and did not induce reliance by the cross-claimants. There was no unconscionable conduct, as the cross-claimants were not under a special disadvantage and had the benefit of independent advice. No loss or damage attributable to the alleged conduct was established, and no breach of contract or implied term was made out.

Jurisdiction
Australia
Judgment Date
03 May 2013
Procedural Posture
Civil / Principal Judgment After Full Trial of Cross Claim
Outcome
Cross-claim dismissed and judgment for cross-defendants. Costs awarded to cross-defendants.
Legal Topics
['misleading Conduct' 'unconscionable Conduct' 'franchise Agreements' 'damages' 'implied Terms' 'breach of Contract']
['contract Law' 'commercial Law' 'trade Practices'] ['misleading Conduct' 'unconscionable Conduct' 'franchise Agreements' 'damages' 'implied Terms' 'breach of Contract']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil / Principal Judgment After Full Trial of Cross Claim

Legal Issues

  1. 1 ['Were the alleged oral representations made by the defendants to the cross-claimants prior to the franchise purchase?' 'Were any representations misleading or deceptive under Trade Practices Act 1974 (Cth)?' 'Did the defendants engage in unconscionable conduct?' 'Was there any breach of contract, including breach of implied terms for supply?' 'Did cross-claimants suffer damage as a result of reliance on any conduct?']

Ratio Decidendi

The cross-claimants failed to establish on the balance of probabilities that the alleged oral representations, aside from an innocuous admission as to business being 'good' or 'profitable', were made. Even if made, the representations did not constitute misleading or deceptive conduct and did not induce reliance by the cross-claimants. There was no unconscionable conduct, as the cross-claimants were not under a special disadvantage and had the benefit of independent advice. No loss or damage attributable to the alleged conduct was established, and no breach of contract or implied term was made out.

Court Disposition

Cross-claim dismissed and judgment for cross-defendants. Costs awarded to cross-defendants.

Orders

  • ['Judgment in favour of the first, second, fourth, fifth and seventh cross-defendants on the cross-claim.' 'Otherwise dismiss the cross-claim.' "Remove the stay operating on the plaintiffs' judgment." "Order the cross-claimants to pay the first, second, fourth, fifth and seventh cross-defendants' costs of the...