FEDERAL COURT OF AUSTRALIA
CGM Investments Pty Ltd v Chelliah [2003] FCA 79
CONTRACT – mutual abandonment – implied from conduct – intention to abandon – delay in performance – objectively determined
Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 referred to
Allied Marine Transport Ltd v Vale Do Rio Doce Navegacao SA [1985] 2 Lloyd’s Rep 18 cited
Bateman v Tsaocis [1960] NSWR 471 cited
Brambles Limited v Daryl Wail [2002] VSCA 150 cited
Commissioner of Taxation of the Commonwealth of Australia v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 cited
D T R Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 applied
Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal (The Hannah Blumenthal) [1983] 1 AC 854 considered
Summers v Commonwealth (1918) 25 CLR 144 applied
Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 cited
Tankrederei Ahren Keil GmbH v Frahuil SA (The Multitank Halsatia) [1988] 2 Lloyd’s Rep 486 referred to
Taylor v Johnson (1983) 151 CLR 422 cited
Thai-Europe Tapioca Service Ltd v Seine Navigation Co. Inc (The Maritime Winner) [1989] 2 Lloyd’s Rep 506 cited
Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32 followedCGM INVESTMENTS PTY LIMITED, A WHISTLE & CO (1979) PTY LIMITED and A WHISTLE & CO PTY LIMITED v CHARLES CHELLIAH, MULSANNE HOLDINGS PTY LTD, WALLERA PTY LTD, NARENDRA JAIN and
NANDINI PATELV 378 of 2002
JUDGE: FINKELSTEIN J
DATE: 14 FEBRUARY 2003
PLACE: MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 378 of 2002
BETWEEN:
CGM INVESTMENTS PTY LIMITED,
A WHISTLE & CO (1979) PTY LIMITED and
A WHISTLE & CO PTY LIMITED
ApplicantsAND:
CHARLES CHELLIAH,
MULSANNE HOLDINGS PTY LTD,
WALLERA PTY LTD,
NARENDRA JAIN and
NANDINI PATEL
RespondentsJUDGE:
FINKELSTEIN J
DATE OF ORDER:
14 FEBRUARY 2003
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The question stated under O 29 of the Federal Court Rules be answered as follows:
Q:Was the franchise agreement relating to the use of the name “Electrodry” and the use of an exothermic chemical process in metropolitan Melbourne made on 21 August 1984 between CGM Investments Pty Ltd and Wallera Pty Ltd discharged by agreement?
A: No.
Q: Was the said agreement abandoned?
A: Yes.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 378 of 2002
BETWEEN:
CGM INVESTMENTS PTY LIMITED,
A WHISTLE & CO (1979) PTY LIMITED and
A WHISTLE & CO PTY LIMITED
ApplicantsAND:
CHARLES CHELLIAH,
MULSANNE HOLDINGS PTY LTD,
WALLERA PTY LTD,
NARENDRA JAIN and
NANDINI PATEL
Respondents
JUDGE:
FINKELSTEIN J
DATE:
14 FEBRUARY 2003
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
In the early 1980s the second applicant, A Whistle & Co (1979) Pty Limited, a company controlled by Mr Burchall, established a carpet cleaning business which employed the…
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- Case
- [2003] FCA 79
- Decision Date
CaseChat Overview and Summary
The court had to ascertain whether the franchise agreement was discharged by agreement or if it had been abandoned. The primary issue was the interpretation of the agreement, specifically the parties' obligations and whether the agreement had effectively been discharged. The court also had to consider whether the agreement had been abandoned, which would mean the contract was no longer in effect due to actions or circumstances that demonstrated the parties' intent to terminate it.
The court found that the agreement had not been discharged by agreement but had been abandoned. It examined the conduct of the parties post-agreement and concluded that Wallera Pty Ltd had ceased to use the franchise, which constituted an abandonment of the agreement. The court reasoned that the cessation of use of the franchise by Wallera Pty Ltd, coupled with CGM Investments Pty Ltd’s inaction, led to the abandonment of the agreement. The court was satisfied that the agreement had not been formally discharged but had effectively ceased to operate due to abandonment.
The court ruled that the agreement was not discharged by agreement, but it had been abandoned. This determination provided clarity on the status of the franchise agreement between the parties and resolved the dispute regarding its continuation or termination.
Orders
Orders of the court
The question stated under O 29 of the Federal Court Rules be answered as follows:
Q: Was the franchise agreement relating to the use of the name “Electrodry” and the use of an exothermic chemical process in metropolitan Melbourne made on 21 August 1984 between CGM Investments Pty Ltd and Wallera Pty Ltd discharged by agreement?
A: No.
Q: Was the said agreement abandoned?
A: Yes.
Background
Background to the litigation
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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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