High Court of Australia

Master Education Services Pty Limited v Ketchell [2008] HCA 38

236 CLR 101; 82 ALJR 1322; 249 ALR 44

27 Aug 2008

Case Number: S139/2008

Before

Gummow ACJ, Kirby, Hayne, Crennan, Kiefel JJ

Catchwords

Contract – Illegality - Statute not complied with - Appellant franchisor contravened cl 11(1) of Franchising Code of Conduct ("Code") in entering into franchise agreement with respondent franchisee - Section 51AD of Trade Practices Act 1974 (Cth) ("TPA") provided that applicable industry codes must not be contravened by corporations in trade or commerce - Court of Appeal of New South Wales held franchise agreement to be unenforceable due to illegality at common law arising from contravention of Code and s 51AD - Whether contravention of Code and s 51AD resulted in illegality and unenforceability of franchise agreement - Whether legislative purpose of Pt IVB of TPA could be fulfilled without franchise agreement being unenforceable in light of remedies available in Pt VI for contravention of s 51AD.

Words and phrases – "code of conduct", "franchise agreement", "illegality".

Trade Practices Act 1974 (Cth) – s 51AD, Pt IVB.

Trade Practices (Industry Codes – Franchising) Regulations 1998 (Cth), Sched, cl 11.

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