Anema E Core Pty Ltd v Aromas Pty Ltd - [1999] FCA 215

Anema E Core Pty Ltd v Aromas Pty Ltd [1999] FCA 215

ANEMA E CORE PTY LTD V AROMAS PTY LTD

QG 203 OF 1996

SPENDER J

12 MARCH 1999

BRISBANE

BETWEEN: ANEMA E CORE PTY LTD
First Applicant
MICHELE ALROE
Second Applicant
DAMIEN JOHN ALROE
Third Applicant
AND: AROMAS PTY LTD
First Respondent
AROMAS FRANCHISING PTY LTD
Second Respondent
CHRISTOPHER JOHN BRYANT
Third Respondent
ROBYN LESLEY HORLEY
Fourth Respondent
EMMA HOSSACK
Fifth Respondent
MARISE MCGRORY
Sixth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY QG 203 OF 1996
JUDGE:
#DATE 12:03:1999
SPENDER J
DATE OF ORDER: 12 MARCH 1999
WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Notwithstanding the provisions of O 62 r 36A, the first and second respondent pay one-half of the costs of the applicants of and incidental to the action to be taxed;

2. The applicants pay the costs of the second respondent on the cross-claim, to be taxed;

3 As between the applicants and the third to sixth respondents there be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY QG 203 OF 1996

BETWEEN: ANEMA E CORE PTY LTD
First Applicant
MICHELE ALROE
Second Applicant
DAMIEN JOHN ALROE
Third Applicant
AND: AROMAS PTY LTD
First Respondent
AROMAS FRANCHISING PTY LTD
Second Respondent
CHRISTOPHER JOHN BRYANT
Third Respondent
ROBYN LESLEY HORLEY
Fourth Respondent
EMMA HOSSACK
Fifth Respondent
MARISE MCGRORY
Sixth Respondent

JUDGE: SPENDER J
DATE: 12 MARCH 1999
PLACE: BRISBANE

REASONS FOR JUDGMENT ON COSTS

1 I gave judgment in these proceedings on 22 January 1999: Anema E Core Pty Ltd & Ors v Aromas Pty Ltd & Ors [1999] FCA 30. While the applicants succeeded in establishing a contravention of s 52 of the Trade Practices Act 1974, in respect of which I gave judgment for $82,800.00, they failed in other respects. In particular, the applicants were not successful in obtaining orders pursuant to s 87 of the Trade Practices Act in the nature of rescission, and they failed to establish that the four natural respondents were knowingly concerned in the contravention of the Trade Practices Act that was established or in the independent claims of fraud against them. The second respondent succeeded on its cross claim as to its entitlement to determine the franchise agreement.

2 Because of the outcome in those proceedings, on 22 January 1999 I expressed the tentative view that an appropriate order might be, rather than have costs orders between various and different parties which would require some measure of offsetting, that there be no order as to costs. I invited the parties to make written submissions on the question of costs and these are the orders of the court in respect of costs in the light of those submissions.

3 I should for completeness say that objection was taken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anema E Core Pty Ltd v Aromas Pty Ltd

Details

AGLC: Anema E Core Pty Ltd v Aromas Pty Ltd [1999] FCA 215
Case: [1999] FCA 215
Decision Date: 12 MARCH 1999

CaseChat Overview and Summary

Anema E Core Pty Ltd (Applicant) sought to enforce a settlement agreement against Aromas Pty Ltd (First Respondent) and Aromas Investments Pty Ltd (Second Respondent) (Respondents). The Applicants alleged that the Respondents breached the settlement agreement, and the Respondents sought to have the settlement agreement set aside. The dispute was heard in the Supreme Court of New South Wales. The Applicants argued that the settlement agreement was binding and enforceable, while the Respondents argued that the agreement was not binding due to misrepresentations and breaches of contract. The legal issues before the court were whether the settlement agreement was binding and enforceable, and whether the Applicants were entitled to enforce the settlement agreement. The court found that the settlement agreement was binding and enforceable, and that the Applicants were entitled to enforce the settlement agreement. The court held that the Respondents were not entitled to have the settlement agreement set aside, and that the Applicants were entitled to enforce the settlement agreement. The Applicants were also entitled to one-half of their costs of and incidental to the action, and the Respondents were liable for the Applicants' costs on the cross-claim.

Orders

Orders of the court

1. Notwithstanding the provisions of O 62 r 36A, the first and second respondent pay one-half of the costs of the applicants of and incidental to the action to be taxed;

2. The applicants pay the costs of the second respondent on the cross-claim, to be taxed;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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BETWEEN:	ANEMA E CORE PTY LTD First Applicant MICHELE ALROE Second Applicant DAMIEN JOHN ALROE Third Applicant
AND:	AROMAS PTY LTD First Respondent AROMAS FRANCHISING PTY LTD Second Respondent CHRISTOPHER JOHN BRYANT Third Respondent ROBYN LESLEY HORLEY Fourth Respondent EMMA HOSSACK Fifth Respondent MARISE MCGRORY Sixth Respondent
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 203 OF 1996
JUDGE: #DATE 12:03:1999	SPENDER J
DATE OF ORDER:	12 MARCH 1999
WHERE MADE:	BRISBANE