Ferfolia and anor v Master Education Services Pty Limited and ors [2005] NSWIRComm 453

Ferfolia and anor v Master Education Services Pty Limited and ors [2005] NSWIRComm 453

The respondents' motion failed because the franchisor's letter dated 30 July 2003, sent to Bilbie Dan Solicitors, was ineffective to terminate the franchise agreement. There was no express authority for those solicitors to accept service or receive formal notices under the franchise agreement, and no basis to imply such authority or find ostensible authority. Accordingly, termination did not occur in the manner asserted by the respondents for the purpose of the s 108B limitation argument.

Jurisdiction
Australia
Judgment Date
21 December 2005
Procedural Posture
Application Under S.106 of the Industrial Relations Act 1996 / Judgment on Strike Out Application
Outcome
Respondents' notice of motion dismissed with costs.
Legal Topics
['s 106 Unfair Contracts' 's 108 B Limitation Period' 'termination of Franchise Agreement' 'authority of Solicitors to Receive Notices' 'strike Out Application' 'costs']
['industrial Relations' 'contract Law' 'franchising' 'civil Procedure'] ['s 106 Unfair Contracts' 's 108 B Limitation Period' 'termination of Franchise Agreement' 'authority of Solicitors to Receive Notices' 'strike Out Application' 'costs']

Case Brief

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Procedural Posture

Application Under S.106 of the Industrial Relations Act 1996 / Judgment on Strike Out Application

Legal Issues

  1. 1 ['Whether the franchise agreement was terminated by letter dated 30 July 2003 or on the date asserted by the applicants.' "Whether correspondence sent to the applicants' solicitors effectively terminated the franchise agreement where the solicitors returned it and said they were not acting." 'Whether the franchisor was entitled to terminate the franchise agreement, including issues concerning alleged non-compliance with franchising code requirements and alleged deferral of loan repayments.']

Ratio Decidendi

The respondents' motion failed because the franchisor's letter dated 30 July 2003, sent to Bilbie Dan Solicitors, was ineffective to terminate the franchise agreement. There was no express authority for those solicitors to accept service or receive formal notices under the franchise agreement, and no basis to imply such authority or find ostensible authority. Accordingly, termination did not occur in the manner asserted by the respondents for the purpose of the s 108B limitation argument.

Court Disposition

Respondents' notice of motion dismissed with costs.

Orders

  • ["The respondents' notice of motion is dismissed." "The respondents are to pay the applicant's costs of the motion assessed in default of agreement."]