Windjar Pty Limited v Bartercard Limited [2000] NSWIRComm 134

Windjar Pty Limited v Bartercard Limited [2000] NSWIRComm 134

There was no concluded contract between Windjar and Bartercard because the respondent's requirement for security on the trade dollar component was never satisfied and the agreement was not executed by Bartercard. However, there existed an 'arrangement' or interim licence within the meaning of s 105, which was unfair due to the absence of clear provisions as to notice for termination. The interim licence is varied to require 30 days' written notice before termination for default. Windjar is awarded compensation due to unfairness in the arrangement. The cross-claim by Bartercard is rejected because no actionable misrepresentation was made by Windjar and Bartercard did not prove any losses...

Jurisdiction
Australia
Judgment Date
31 July 2000
Procedural Posture
Application Under S 106 Industrial Relations Act 1996 (nsw) / Judgment After Hearing
Outcome
Application by Windjar Pty Ltd largely succeeds; Cross-claim by Bartercard Limited rejected.
Legal Topics
['unfair Contract' 'franchise Agreement' 'interim Licence' 'vendor Finance' 'termination of Contract' 'arrangement Under S 105']
['industrial Law' 'contract Law'] ['unfair Contract' 'franchise Agreement' 'interim Licence' 'vendor Finance' 'termination of Contract' 'arrangement Under S 105']

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Procedural Posture

Application Under S 106 Industrial Relations Act 1996 (nsw) / Judgment After Hearing

Legal Issues

  1. 1 ['Whether a concluded contract existed between Windjar and Bartercard for the Sydney North franchise' 'Whether any arrangement or interim licence was unfair, harsh or unconscionable under s 105' 'Whether the interim arrangement could be lawfully terminated and on what notice' 'Whether Bartercard was entitled to retain the $25,000 deposit' 'Whether Windjar is entitled to relief or compensation under s 106' "Whether Bartercard's cross-claim for misrepresentation succeeds"]

Ratio Decidendi

There was no concluded contract between Windjar and Bartercard because the respondent's requirement for security on the trade dollar component was never satisfied and the agreement was not executed by Bartercard. However, there existed an 'arrangement' or interim licence within the meaning of s 105, which was unfair due to the absence of clear provisions as to notice for termination. The interim licence is varied to require 30 days' written notice before termination for default. Windjar is awarded compensation due to unfairness in the arrangement. The cross-claim by Bartercard is rejected because no actionable misrepresentation was made by Windjar and Bartercard did not prove any losses...

Court Disposition

Application by Windjar Pty Ltd largely succeeds; Cross-claim by Bartercard Limited rejected.

Orders

  • ['The interim licence agreement made between Windjar Pty Ltd and Bartercard Limited around December 1996 is varied to require 30 days written notice for termination after breach/default if not remedied.' 'Bartercard Limited is to pay Windjar Pty Ltd $35,000.' 'Interest is to be paid on $35,000 at Supreme Court rates...