Disputes

I Have a Franchise Dispute

Disputes can be unavoidable.

Your approach to the resolution of a dispute may depend on many factors, both financial and non-financial.

In any franchise dispute the franchisor and the franchisee must comply with the dispute resolution procedures set out in the Franchising Code of Conduct (the Code) and the Franchise Agreement.

We will provide you with advice based on our extensive experience in franchise disputes and general commercial disputes so that you can make an informed decision on the strategy which is right for you.

In any dispute we will:

  • focus on your wishes, goals and needs;
  • provide you with relevant advice based on your needs and our experience;
  • work with you to resolve your dispute through negotiation and mediation;
  • litigate if necessary;
  • work with you to manage costs.

We can agree fixed prices or retainers in most dispute resolution matters.

Negotiation

We understand that effective negotiation is a skill. It requires timing, strategy and preparation.

Many factors will affect a person’s willingness to settle a dispute. These factors may be commercial, for example the protection of a franchise system, or emotional, for example the feeling of wanting your day in court.

It is always best that you attempt to resolve a dispute early before significant costs have been incurred. It is also important that you understand the strengths and weaknesses of your position before you accept or make an offer to settle a dispute.

Enforcing Obligations

In any agreement the parties to the agreement will have obligations to each other. Obligations under an agreement include the payment of monies, the doing of something (such as providing support or operating a franchise business) or the not doing of something (such as operating a similar business or using confidential information).

Obligations may be enforced in a number of ways including issuing a notice to remedy breach, issuing a termination notice, issuing injunction proceedings or issuing other proceedings.

Mediation

Mediation allows the parties to a dispute to try to reach an agreement with the assistance of a mediator.

We have been involved in the resolution of many disputes through mediation throughout Australia and internationally since the inception of the Code.

Mediation is a genuine alternative to litigation because:

  • mediation is relatively inexpensive
  • mediation is private and confidential
  • mediation allows parties to have control over the outcome of the dispute 
  • mediation allows for settlements that have commercial flexibility
  • mediation is less likely to destroy a business relationship.

Commercial Litigation

We specialise in complex issues involving legal, forensic and evidentiary skills. We are focused on efficiency and our advanced use of technology means that we can efficiently and cost effectively handle litigation involving large volumes of documents.

We have acted for many franchising clients in both simple and complex litigation proceedings at all levels of the Australian Court system.

We have also acted in a number of commercial matters in the High Court of Australia, including in one of the leading Australian cases involving misleading and deceptive conduct.

Our extensive litigation experience means that we can give you the information that you need to define or revise your commercial strategy.

Notable Litigation

Yorke v Lucas (1985) 158 CLR 661

Yorke v Lucas was one of the first cases where Section 52 of the Trade Practices Act 1974 (Cth) (now Section 18 of the Competition and Consumer Act 2010 (Cth)) was used in Australia in the context of commercial misrepresentation and it is still a leading authority today particularly in the context of accessorial liability under the Competition and Consumer Act. Stephen Haarsma was the solicitor and junior counsel in this case both at first instance and also on appeal before the Full Federal Court of Australia and then subsequently the High Court of Australia.

Byrnes v the Queen (1999) 199 CLR 1

In Byrnes v the Queen, the team of dispute resolution solicitors at Haarsma Lawyers (led by Stephen Haarsma) successfully appealed a decision of the Supreme Court of South Australia in the High Court of Australia on constitutional grounds. The complexity of the case (and applicable laws at the time) is indicated by the following passage from the judgment of the Honourable Justice Kirby:

Wherever such legislative calamities are inflicted on a nation, and on the corporations essential to its economic well-being, gaps are bound to occur.  They are usually unintended.  They are generally found when spectacles are applied to the magnifying glass through which lawyers of ability and infinite patience search with a microscope the text of legislation and are rewarded with the discovery of an omission advantageous to generally well-funded clients. 

Byrnes v Kendle [2011] HCA 26

Stephen Haarsma was the lead solicitor in a team which successfully appealed to the High Court of Australia adverse judgments in the District Court of South Australia and the Supreme Court of South Australia.

JM & PM Holdings Pty Ltd v Snap-on Tools (Australia) Pty Ltd [2015] NSWCA 347

Ana Haarsma was the lead solicitor both in the District Court of New South Wales and in an appeal to the Supreme Court of New South Wales in a franchising matter alleging misleading and deceptive conduct. The litigation involved large volumes of documents which were accessed electronically during the trial.

Contact us to discuss the handling of any dispute.

 

Let us use our experience and expertise to assist you

What we can do to help you if you are in a dispute

Assist you to Negotiate

We understand that effective negotiation is a skill. It requires timing, strategy and preparation. Many factors will effect a person’s willingness to settle a dispute. These factors may be commercial, for example the protection of a franchise system, or emotional, … Continue reading

Assist you to enforce obligations under a Franchise Agreement

In any agreement the parties to the agreement will have obligations to each other. Obligations under an agreement include the payment of monies, the doing of something (such as providing support or operating a franchise business) or the not doing … Continue reading

Franchise Mediation

Mediation allows the parties to a dispute to try to reach an agreement with the assistance of a mediator. We have been involved in the resolution of many disputes through mediation since the inception of the Franchising Code of Conduct … Continue reading

Commercial Litigation

We specialise in complex issues involving legal, forensic and evidentiary skills. We are focused on efficiency and our advanced use of technology means that we can efficiently and cost effectively handle litigation involving large volumes of documents. We have acted … Continue reading

Franchise Information

WordPress Image Lightbox