Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219

Joshan v Pizza Pan Group Pty Ltd [2021] NSWCA 219

The primary judge erred by applying a higher standard of proof than the balance of probabilities and by attributing undue significance to a non-exclusive jurisdiction clause. The Guarantee is not a 'franchise agreement' under the Franchising Code, so cl 21 does not nullify the non-exclusive jurisdiction clause. Given the residence of the parties, location of the business, witnesses, the financial positions, and the subject matter's connection to South Australia, the Supreme Court of South Australia is the appropriate court for determining all issues, and a stay should be granted if not opposed by cross-defendants.

Jurisdiction
Australia
Judgment Date
14 September 2021
Procedural Posture
Appeal / Judgment on Appeal From Interlocutory Decision; Leave to Appeal Granted
Outcome
Appeal allowed; primary judge's orders set aside; conditional stay of District Court proceedings granted if unopposed by cross-defendants; costs awarded to Applicants.
Legal Topics
['stay of Proceedings' 'franchising Code of Conduct' 'jurisdiction Clauses' 'standard of Proof' 'appropriate Forum' 'interpretation of Non Exclusive Jurisdiction Clauses']
['civil Procedure' 'private International Law' 'consumer Law' 'evidence'] ['stay of Proceedings' 'franchising Code of Conduct' 'jurisdiction Clauses' 'standard of Proof' 'appropriate Forum' 'interpretation of Non Exclusive Jurisdiction Clauses']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Interlocutory Decision; Leave to Appeal Granted

Legal Issues

  1. 1 ['Whether the primary judge erred by applying a higher standard of proof than balance of probabilities in a stay application under s 20 of SEPA' 'Whether excessive reliance was placed on a non-exclusive jurisdiction clause in determining the appropriate forum' 'Whether cl 21 of the Franchising Code nullifies a non-exclusive jurisdiction clause in a guarantee' 'Whether the Supreme Court of South Australia is the appropriate court to hear the dispute']

Ratio Decidendi

The primary judge erred by applying a higher standard of proof than the balance of probabilities and by attributing undue significance to a non-exclusive jurisdiction clause. The Guarantee is not a 'franchise agreement' under the Franchising Code, so cl 21 does not nullify the non-exclusive jurisdiction clause. Given the residence of the parties, location of the business, witnesses, the financial positions, and the subject matter's connection to South Australia, the Supreme Court of South Australia is the appropriate court for determining all issues, and a stay should be granted if not opposed by cross-defendants.

Court Disposition

Appeal allowed; primary judge's orders set aside; conditional stay of District Court proceedings granted if unopposed by cross-defendants; costs awarded to Applicants.

Orders

  • ['Appeal allowed.' 'Set aside the orders of Weber SC DCJ of 19 February 2021.' "Applicants' solicitors to serve a copy of these reasons on solicitors for all cross-defendants who have entered an appearance in proceedings 2020/00230657 on or before 15 September 2021." 'Any cross-defendant who has entered an...