Narellan Franchise Pty Ltd v RBME Pty Ltd

Narellan Franchise Pty Ltd and others (the appellants) sought leave to appeal a decision of the primary judge in the Supreme Court of New South Wales. The dispute concerned claims arising from a franchise agreement, where the appellants had sought final injunctions which were refused after a three-day hearing. However, pecuniary claims remained undetermined. The appellants argued that the primary judge’s refusal of injunctions was appealable as a final decision, or alternatively, sought leave to appeal on the basis that the primary judge failed to determine certain questions of construction of the franchise agreement.

The Court of Appeal was required to determine whether the primary judge's decision was interlocutory or final, and consequently, whether an appeal lay as of right or required leave. A further issue was whether, in the circumstances, leave to appeal should be granted to address the questions of construction, particularly given that the appellants belatedly sought their determination and had not made full submissions on them at first instance or on appeal. The court also considered the practical effect of any potential injunction given the passage of time.

The Court held that the primary judge's decision was interlocutory because the pecuniary claims remained undetermined. Therefore, an appeal could only lie with leave. Regarding the questions of construction, the court noted that these were not determined by the primary judge and that full submissions had not been made. The court considered it desirable for such questions to be answered in light of findings of fact, which had not yet occurred. Given the lack of full submissions and the interlocutory nature of the decision, the court concluded that leave to appeal should not be granted.

Consequently, the notice of appeal was dismissed as incompetent, and the summons seeking leave to appeal was dismissed. The appellants were ordered to pay the respondents' costs of the proceedings in the Court of Appeal.