SURE CARE SERVICES LIMITED & ORS V AT YOUR REQUEST FRANCHISE GROUP LIMITED& ANOR HC AK CIV 2008-404-005112

SURE CARE SERVICES LIMITED & ORS V AT YOUR REQUEST FRANCHISE GROUP LIMITED& ANOR HC AK CIV 2008-404-005112

Clause 24(3), read in context, requires that once one party elects to refer a dispute to arbitration both parties are bound to that course; Fair Trading Act claims that arise from conduct 'touching' the franchise agreement fall within the arbitration clause; defendants properly referred disputes to arbitration, and the clause is not rendered inoperative by election, waiver, estoppel, participation of non-parties or public policy in the circumstances of this case.

Citation
openlaw-9ddd1155_95c7_423a_af62_574ba971b07e.pdf
Parties
First Plaintiff: Sure Care Services Limited; Second Plaintiff: Robert Thorne Lawrence; Second Plaintiff: Deon Johan Wessels; Third Plaintiff: Joy Chiung-Yi Tseng Lawrence; Third Plaintiff: Jill Chiung-Hui Tseng Wessels; First Defendant: At Your Request Franchise Group Limited; Second Defendant: Adrian Courtney Kenny
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2009
Procedural Posture
Franchise Agreement Dispute (contract and Statutory Fair Trading Act Claims) / Interlocutory Application to Dismiss or Stay Proceedings in Favour of Arbitration
Outcome
On application: defendants' election to arbitrate upheld; claims of first and second plaintiffs dismissed to be determined by arbitration; claims of third plaintiffs stayed pending arbitration outcome upon defendants' compliance with directions.
Legal Topics
Arbitration Clause Construction, Stay and Dismissal, Waiver and Estoppel, Public Policy and Confidentiality, Mediation, Misrepresentation
Contract Arbitration Civil Procedure Consumer Protection (fair Trading) Franchise Law Arbitration Clause Construction Stay and Dismissal Waiver and Estoppel +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 6 Authorities cited 13 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Sure Care Services Limited

First Plaintiff

Robert Thorne Lawrence

Second Plaintiff

Deon Johan Wessels

Second Plaintiff

Joy Chiung-Yi Tseng Lawrence

Third Plaintiff

Jill Chiung-Hui Tseng Wessels

Third Plaintiff

At Your Request Franchise Group Limited

First Defendant

Adrian Courtney Kenny

Second Defendant

Procedural Posture

Franchise Agreement Dispute (contract and Statutory Fair Trading Act Claims) / Interlocutory Application to Dismiss or Stay Proceedings in Favour of Arbitration

Legal Issues

  1. 1 Whether clause 24(3) requires disputes to be referred to arbitration
  2. 2 Whether arbitration clause extends to claims under the Fair Trading Act 1986
  3. 3 Whether parties elected litigation thereby rendering clause 24(3) inoperative

Ratio Decidendi

Clause 24(3), read in context, requires that once one party elects to refer a dispute to arbitration both parties are bound to that course; Fair Trading Act claims that arise from conduct 'touching' the franchise agreement fall within the arbitration clause; defendants properly referred disputes to arbitration, and the clause is not rendered inoperative by election, waiver, estoppel, participation of non-parties or public policy in the circumstances of this case.

Court Disposition

On application: defendants' election to arbitrate upheld; claims of first and second plaintiffs dismissed to be determined by arbitration; claims of third plaintiffs stayed pending arbitration outcome upon defendants' compliance with directions.

Orders

  • Second defendant to file and serve a memorandum confirming agreement to have disputes against him determined by arbitration under clause 24(3) by 7 August 2009
  • Claims by the first and second plaintiffs dismissed (to be determined by arbitration) upon filing of the memorandum