Workplace Safety Australia Pty Ltd v Simple OHS Solutions Pty Ltd

Workplace Safety Australia Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a dispute with Simple OHS Solutions Pty Ltd (the respondent). The core of the dispute involved whether an agreement between the parties constituted a franchise agreement subject to the Franchising Code of Conduct, and related issues of contract termination, estoppel, and damages for alleged breaches of section 51AD of the *Competition and Consumer Act 2010* (Cth).

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether the appellant, as the purported franchisor, had granted the respondent, as the purported franchisee, the right to carry on a business of offering, supplying, or distributing goods or services. Secondly, the court needed to assess whether this business was to be carried on under a system or marketing plan, and crucially, whether that system or marketing plan was substantially controlled by the appellant. Thirdly, the court had to determine whether time was of the essence for the payment of an instalment under the contract, and whether the respondent's conduct gave rise to a clear and unequivocal representation for the purposes of promissory estoppel. Finally, the court considered the appellant's claim for damages for breach of section 51AD of the *Competition and Consumer Act 2010* (Cth).

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that the agreement did not meet the definition of a franchise agreement under the Franchising Code of Conduct because the appellant did not exercise substantial control over the respondent's business operations through a defined system or marketing plan. Regarding the contractual issues, the court found that time was not of the essence for the instalment payment, and that the respondent's conduct was not reasonably capable of giving rise to a clear and unequivocal representation necessary for promissory estoppel. Consequently, the appellant's claim for damages under section 51AD was also unsuccessful. The appellant was ordered to pay the respondents’ costs of the appeal.