Willabrae Pty Ltd v Bridgestone Australia Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Willabrae Pty Ltd & Ors v Bridgestone Australia Limited [2007] QDC 007

PARTIES:

WILLABRAE PTY LTD (ACN 053 213 522) and WILLAMONT PTY LTD (ACN 053 213 657)

Plaintiff

AND

CHRISTOPHER FRANCIS DUNNE, KRYSTINE JANET DUNNE and MARK OLIVER MORRISSEY

Second Plaintiffs

V

BRIDGESTONE AUSTRALIA LIMITED

(ACN 007 516 841)

Defendant

FILE NO/S:

3399/06

DIVISION:

Applications Jurisdiction

PROCEEDING:

Application in a proceeding

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

7 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2007

JUDGE:

Kingham DCJ

ORDER:

1. The Claim is stayed.

2. The Plaintiffs must pay the costs of and incidental to both this application and the claim.

CATCHWORDS:

PRACTICE – stay of proceedings – whether court in South Australia the appropriate court to determine the matters in issue – Service and Execution of Process Act 1992 (Commonwealth) s.20.

Service and Execution of Process Act 1992 (Commonwealth)

Akai Pty Limited v The People’s Insurance Company Limited (1996) 188 CLR 418 – cited

FAI General Insurance Co LTd v Ocean Marine Mutual Protection and Indemnity Association & Anor (1997) 41 NSWLR 559 – cited

James N Kirby Pty Ltd v International Cargo Control Pty Ltd [2000] NSWSC 289 – cited

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 – cited

Programmed Maintenance Services Limited v The Shell Company of Australia Ltd [2000] QDC 249 – cited

Regi National Des Usines Renault SA v Ahang (2002) 76 ALJ 551 – cited

Slater & Gordon Pty Ltd v Porteous [2005] VSC 398 – cited

COUNSEL:

D. O’Sullivan for the Applicant/Defendant

I. A. Erskine for the Respondent/Plaintiffs

SOLICITORS:

TressCox Lawyers for the Applicant/Defendant

Alex Mackay & Co for the Respondent/Plaintiffs

1. Under franchise from Bridgestone Australia Limited, Willabrae Pty Ltd and Willamont Pty Ltd traded as the Bridgestone Tyre Centre, from premises on Lutwyche Road, Windsor.  The companies’ directors, Mr & Mrs Dunne and Mr Morrissey, personally guaranteed performance of the franchisees’ obligations. For ease of reference both the companies and their directors will be referred to in these reasons as the franchisees, unless need dictates otherwise.

1. The business ceased trading after the Brisbane City Council gave notice it would resume the property from which it traded. Compensation has not been paid. There is, apparently, a dispute between the parties about whether some portion of it should be paid directly to Bridgestone in satisfaction of the companies’ trading debts to Bridgestone.

1. The franchisees have brought a claim for damages in this court. They say they were induced to enter into the franchise and associated security agreements by pre-contractual representations by Bridgestone employees about the profitability of the operation.

1. Bridgestone wishes to defend the damages claim and to recover the trading debts, whether by separate action or by way of set off to the damages claim. It says the District Court of South Australia is the appropriate forum both to recover the debt and to assert the damages claim.  The franchise agreement contains a clause by which the parties submitted to the…