FEDERAL COURT OF AUSTRALIA

Visionmax v Budget Specs (Franchising)

[2005] FCA 1487

PRACTICE AND PROCEDURE – INJUNCTION – Application (heard in conjunction with an application in Luce Optical and Budget Specs (Franchising) – QUD370/2005) for an interlocutory injunction to restrain the exercise of a power of termination – construction of two franchise agreements – exercise of powers of inspection and examination upon reasonable notice – consideration of implied term to act in good faith, fairly and reasonably in the exercise of a power – consideration of whether particular obligation expression of a proper construction of the agreement or an incident of the implied duty of good faith – consideration of whether reliance upon an independent audit report precluded by breach of franchise agreement or breach of implied duty – consideration of serious question and balance of convenience. 

Luce Optical Pty Ltd v Budget Specs (Franchising) [2005] FCA 1486

VISIONMAX PTY LIMITED v BUDGET SPECS (FRANCHISING) PTY LIMITED

QUD 369 OF 2005

GREENWOOD J

20 OCTOBER 2005

BRISBANE

THE COURT ORDERS THAT:

1.             Upon the Applicant and Max Sarracino giving the usual undertaking as to damages, the Respondent by itself, its servants and agents or otherwise howsoever, is, until the trial of the action or earlier order, restrained from acting upon or implementing a Notice of Termination dated 15 September 2005 of a franchise agreement made between the Applicant as franchisee and the Respondent as franchisor on 22 December 1997.

2.             Costs of the Application be reserved. 

3.             The proceeding shall be listed for review at 9.30am on Tuesday, 25 October 2005 for directions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter the Applicant seeks an injunction until trial or earlier order to restrain the Respondent, Budget Specs (Franchising) Pty Limited (“Budget Franchising”), from acting upon or implementing a Notice of Termination of a franchise agreement dated 22 December 1997 made with the Applicant.  The Application was heard on 4 October 2005 in conjunction with an Application by Luce Optical Pty Ltd (“Luce Optical”) to similarly restrain Budget Franchising from acting upon or implementing a Notice of Termination of a franchise agreement dated 23 June 2000 made with Luce Optical. 

2                     A judgment in relation to both Applications is delivered today and the detailed Reasons in relation to each Application is published in proceeding QUD370 of 2005 which is the proceeding commenced by Luce Optical. 

3                     Having regard to those Reasons, I propose to make an order that until the trial of the action or earlier order the Respondent by itself, its servants and agents or otherwise howsoever is restrained from acting upon or implementing a Notice of Termination dated 15 September 2005 of a franchise agreement made between the Applicant as Franchisee and the Respondent as Franchisor on 22 December 1997.  Costs of the Application will be reserved and the matter shall be listed for review at 9.30am on Tuesday, 25 October 2005 for directions.  As indicated in the Joint Reasons in both matters, I have allocated trial dates for the matter on 13, 14, 15, 16 and 17 March 2006. 

Associate:

Dated:              20 October 2005