Solomons Franchise Systems Pty Ltd & Ors v Taydex Pty Ltd & Ors [1995] FCA 199

Solomons Franchise Systems Pty Ltd & Ors v Taydex Pty Ltd & Ors [1995] FCA 199

Paragraphs 21, 24, 25, 26 and 31 were embarrassing as pleaded. Given the number of new, general claims, prior opportunities to plead, and delay, leave to re-plead was justified only for paragraph 24 and only by way of cross claim identifying the relief sought and its basis. Paragraphs 27-30 were embarrassing because they did not adequately plead the market or the purpose or effect of substantially lessening competition required for s.47(2) and s.47(10) of the Trade Practices Act 1974, and further leave was inappropriate after prior attempts. The second respondent's application to appear for the first respondent was dismissed because inability to pay legal costs could not confidently be...

Jurisdiction
Australia
Judgment Date
04 April 1995
Procedural Posture
Civil Proceeding Concerning Franchise Agreement, Trade Marks and Monies Owing for Goods Delivered; Interlocutory Motions to Strike Out Defence and for Leave for a Director to Appear for a Company / Interlocutory Applications
Outcome
Applicants' motion to strike out defence granted in part with limited leave to re-plead; second respondent's motion to appear for the first respondent dismissed.
Legal Topics
['strike Out of Defence' 'leave to Re Plead' 'exclusive Dealing' 'misleading and Deceptive Conduct' 'company Representation by Director' 'costs']
['practice and Procedure' 'trade Practices' 'franchising'] ['strike Out of Defence' 'leave to Re Plead' 'exclusive Dealing' 'misleading and Deceptive Conduct' 'company Representation by Director' 'costs']

Case Brief

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Procedural Posture

Civil Proceeding Concerning Franchise Agreement, Trade Marks and Monies Owing for Goods Delivered; Interlocutory Motions to Strike Out Defence and for Leave for a Director to Appear for a Company / Interlocutory Applications

Legal Issues

  1. 1 ['Whether paragraphs 21, 24, 25, 26 and 31 of the defence were embarrassing and should be struck out.' 'Whether leave to further re-plead should be granted after previous attempts to plead.' 'Whether paragraphs 27-30 adequately pleaded a contravention of s.47(2) of the Trade Practices Act 1974.' 'Whether the second respondent should be granted leave under O. 9 r. 1(3) of the Federal Court Rules to defend the proceedings on behalf of the first respondent company.']

Ratio Decidendi

Paragraphs 21, 24, 25, 26 and 31 were embarrassing as pleaded. Given the number of new, general claims, prior opportunities to plead, and delay, leave to re-plead was justified only for paragraph 24 and only by way of cross claim identifying the relief sought and its basis. Paragraphs 27-30 were embarrassing because they did not adequately plead the market or the purpose or effect of substantially lessening competition required for s.47(2) and s.47(10) of the Trade Practices Act 1974, and further leave was inappropriate after prior attempts. The second respondent's application to appear for the first respondent was dismissed because inability to pay legal costs could not confidently be...

Court Disposition

Applicants' motion to strike out defence granted in part with limited leave to re-plead; second respondent's motion to appear for the first respondent dismissed.

Orders

  • ['Paragraphs 21,24,25,26 and 31 and paragraphs 27-30 be struck out with leave to further plead paragraph 24 to raise the plea by way of cross claim on condition that the further pleading identify the particular relief sought and the basis for that relief.' 'The further pleading be filed and served by 4.00 p.m. on 2...