Uncategorized

The Cash Converter

Monday, July 01, 2019Monday, July 01, 2019 admin

It was contended on behalf of Rosebud that subsequent to the termination of the franchise agreement Cash Converters, in allegedly attempting to physically take back the business, repudiated the sale agreement. This submission ignores the following. First, Rosebud in its answering affidavit did not rely on the behaviour of Cash Converters in attempting to reassert control over the business as a repudiation of the sale agreement but rather as a repudiation of the franchise agreement. Secondly, the consequence of the termination of the franchise agreement as spelt out in the agreement itself is that Rosebud would be obliged to return to Cash Converters such materials as are related to the conduct of the business and would be prohibited from operating the Cash Converter franchise.

Finally, the breach by Rosebud of its obligations in terms of clause 3. In these circumstances it is not open to Rosebud to contend that Cash Converters repudiated the sale agreement.

Cash Converter's counsel rightly conceded that the volumes of the appeal record referred to in the order that follows were unnecessary and that the related costs should be disallowed. The appeal is allowed with costs including the costs for special leave to appeal to this Court but excluding the costs related to volumes 3,4 and 7 of the appeal record;.

The order of the Full Bench is set aside and for it is substituted the following: Additionally to what Brand JA has said I would add this. But this allowance, I must stress, is made to the innocent party.

Cash Converters

Rosebud has breached its duties in a serious respect. To allow it to demand restitution of the price would mean that by its own breach of the second agreement it could cast off the obligation placed upon it by the sale agreement — to pay the price. If that were allowed it could achieve the same result by repudiating the second agreement in refusing to perform its obligations under it.

In other words the contract-breaker would be able to relieve himself of the obligation to pay the price by his own breach. That cannot be correct. Nor do I see any injustice in Cash Converters receiving back what it has duly delivered in terms of its obligation, but which has, in effect, been cast aside by Rosebud. I concur in the judgment of Navsa JA and share the views reflected therein. I find myself in respectful disagreement with Lewis AJA. Broadly stated the reason why I cannot agree with her conclusion is that it is wholly dependent on the acceptance of a tacit of the sale agreement 'the sale' that, in my view, does not exist.

There are two separate contracts and, although interlinked, they represented two separate transactions. Once this is accepted, the notion that termination of the franchise agreement 'the franchise' automatically leads to the termination of the sale, can only be founded, as is accepted by Lewis AJA, on a tacit or implied term. This must be so. In the absence of an express term to that effect in either contract I can see no other way.

My difficulty lies with Lewis AJA's conclusion that 'there must surely be a tacit term that if the business sold is taken back by Cash Converters there would be a rescission and restitution' of the purchase price.

Cash Converters Australia - Recruitment Video

With regard to this conclusion the complications are threefold. First, no such tacit term is referred to in the papers and in argument before this Court Rosebud's counsel expressly disavowed any reliance on any such tacit term. Secondly, the hypothesis of the tacit term relied upon by Lewis AJA for conclusion militates against the express provision in clause Thirdly, I am satisfied that the tacit term contended for will not meet the requirements of the so-called bystander test regularly applied by this Court.

According to this test the inference of such a term would only be justified if, at the time when the contracts were entered into, the bystander's question as to what would happen to the purchase price upon termination of the franchise, would have elicited the prompt and unanimous response from both parties that, in that event, the whole of the purchase price will be repaid. I have no doubt that, whatever Rosebud's response might have been, that would not have been the response of Cash Converters. No doubt there were good reasons for deciding to regulate the different aspects of the transaction through the use of separate contracts.

The sale agreement, although executory in the sense that the purchase price was to be paid in instalments over a period, is essentially one of limited duration. Once the price was paid in full, the obligations of the parties would have been performed.

Contact Us

This does not mean, of course, that the contract could not be rescinded, and restitution effected, even after performance had been completed, if it were found, for example, that the sale had been induced by misrepresentation, or was the result of a material and actionable mistake. The franchise agreement, on the other hand, would have continued to operate for the initial term, and possibly for longer if extended. The franchise agreement was probably modeled on the contract between Cash Converters and the Australian company that had licensed it to grant franchises.

No doubt certain terms were required to be included by the latter, and were non-negotiable.

Welcome to Cash Converters

The agreement would have been in virtually standard terms, leaving little opportunity for either Cash Converters or Rosebud to negotiate any changes. It would thus probably have been both convenient and cost-effective to embody the terms governing one aspect of the legal relationship between the parties in one contract, and the sale of the rights and other assets to Rosebud in another. However, even if it be accepted that the contracts are divisible, this does not mean that they are not inter-dependent, and that the termination of the one does not lead automatically to the termination of the other.

I do not propose to traverse all the relevant terms since Navsa JA has done so. However, the following terms seem to me to be particularly significant. It follows from this that if Rosebud is deprived of the right to promote franchises then it is deprived of the merx itself. Industrial property includes marketing and operations manuals, the name, logos, trademarks and other intellectual property rights.

Each gives substance to the other.

Most Recent Annual Report;
Lesson Plans The Graveyard Book.
Die Erben der alten Zeit (2): Der Thul (Die Erben der alten Zeit - Trilogie) (German Edition).
Say It Isnt So (with Tab Staff).

Without the franchise agreement, the business sold is an empty shell. Without the sale, there can be no franchise agreement. Thus, while I agree that each contract is a separate legal transaction, it is my view that if the one fails the other must too. The first is that if one accepts that the contracts are inter-dependent, breach of one amounts to a breach of the other.

That is clearly not so. Each contract sets out forms of breach and the steps and remedies that may follow. But termination is different from breach: Certain forms of breach may result in cancellation. Pawnbrokers charging pc interest in unregulated industry. Kirsten holds her son Lachlan. Top Stories Nationals leader says embattled MP should consider his future in Parliament If you're worried about online data trackers, try this before you chuck your phone away Hugh paid Wotif hundreds of dollars per night for this view. He got a basement Why can't the Top End pipe its abundant water south to drought-stricken states?

The reason France has more protests than Germany or Britain What happens when apartment living lands you the neighbour from hell For Game of Thrones characters, death comes in these bloody and brutal ways Regional NBN users to get faster download speeds, but upload speeds to halve May says postponed Brexit vote will be held next month Opinion: Think that elf on the shelf is creepy? Imagine how your kids feel photos Dow plunges points, as Wall Street falls deeper into correction territory Family devastated after relative's coffin struck by digger Accused child kidnapper facing threats online and behind bars, lawyer says The economics of trees: Connect with ABC News.

Got a news tip? Editorial Policies Read about our editorial guiding principles and the enforceable standard our journalists follow.