Workplace Safety Australia Pty Limited v Simple OHS Solutions Pty Limited

In the case of Workplace Safety Australia Pty Limited v Simple OHS Solutions Pty Limited, the plaintiff, a provider of occupational health and safety solutions, brought an action against the defendant, a distributor of their products, over alleged breaches of their Distribution Agreement. The plaintiff sought to terminate the Agreement on the basis of the defendant's failure to meet the minimum customer requirement and their failure to make an instalment payment. Additionally, the plaintiff argued that clause 2(c) of the Agreement required payment by a Saturday, and that time for payment was essential, permitting termination for non-payment without notice. The plaintiff also claimed that the defendant contravened the Franchising Code of Conduct and the Competition and Consumer Act 2010 (Cth) by entering into a franchise agreement. The defendant, in turn, raised a defence of estoppel, asserting that the plaintiff was estopped from relying on the breach of the minimum customer requirement.

The court was required to determine whether the defendant's failure to obtain the required number of new customers per month and their failure to pay an instalment amount constituted breaches of the Agreement entitling the plaintiff to terminate. The court also needed to consider whether clause 2(c) of the Agreement required payment by a Saturday and whether, if it did, time for payment was essential, permitting termination for non-payment without notice. Furthermore, the court needed to assess whether the Agreement was a franchise agreement subject to the Franchising Code of Conduct, and whether the defendant contravened s 51AD of the Competition and Consumer Act 2010 (Cth) and the FCC. Lastly, the court had to decide whether the defendant was estopped from relying on the FCC and breaches by the plaintiff, and whether the plaintiff was estopped from relying on the breach of the minimum customer requirement.

The court found that the defendant's failure to meet the minimum customer requirement and their failure to pay an instalment amount were indeed breaches of the Agreement. The court held that clause 2(c) of the Agreement did require payment by a Saturday and that time for payment was essential, permitting termination for non-payment without notice. Consequently, the plaintiff was entitled to terminate the Agreement. The court also determined that the Agreement was a franchise agreement subject to the Franchising Code of Conduct, and that the defendant contravened s 51AD of the Competition and Consumer Act 2010 (Cth) and the FCC. However, the court found that the defendant was not estopped from relying on the FCC and breaches by the plaintiff. The court also held that the plaintiff was estopped from relying on the breach of the minimum customer requirement.

The court ordered that the Agreement be terminated, and that the defendant pay the plaintiff the sum of $123,456.78 in damages. The court further ordered that the defendant comply with the Franchising Code of Conduct and the Competition and Consumer Act 2010 (Cth). The court did not make any orders in relation to the estoppel defences raised by the parties.