Find Lawyers in Brisbane, Australia for Franchise Law
Practice Area Overview
In Australia, franchise agreements are regulated by a national "Franchising Code of Conduct," and through a range of State and Federal fair trading laws. The Franchising Code requires franchisors to provide a "Disclosure Document" and associated materials to prospective franchisees, and regulates the conduct of franchisor and franchisee throughout the franchise relationship. It includes rules concerning pre-contractual negotiations, various ongoing disclosure requirements, rules about dispute resolution, and restrictions on the terms of franchise agreements, including the ways in which a franchise agreement can be terminated.
The Franchising Code applies to any licensing arrangement that operates under its definition of "franchise agreement." The three elements are: (a) the licence of a trade mark, (b) the payment of a fee by the licensee, and (c) a requirement that the licensee conducts their business in accordance with a business system or marketing plan substantially determined by the licensor. Care must be taken, as the definition captures many licensing and distribution arrangements that might not consider themselves to be "franchises." There are also certain arrangements deemed to be "franchise agreements," such as a licence to operate a motor vehicle dealership.
A breach of the Franchising Code can result in the government regulator, the ACCC, taking action to impose financial penalties. It also can effect the enforceability of the franchise agreement.
Franchise disputes are quite specialised due to the requirements of the Franchising Code, which includes mandatory mediation of disputes if requested by either party. There is a government-operated referral service which will appoint an accredited mediator with experience in resolving franchise disputes if requested. Franchise disputes most commonly arise where: (a) a franchised business does not perform to the franchisee's expectations, resulting in allegations of misleading conduct or misrepresentations regarding the likely performance of the franchise, (b) a franchisee decides they don't need the franchisor and seeks to leave the system while continuing their business (resulting in enforcement of the franchise agreement by the franchisor), or (c) the franchisor seeks to terminate or not renew the franchise agreement and the franchisee resists.
Many franchise lawyers specialise exclusively in either commercial aspects of franchise law or dispute resolution, but most specialists in this area tend to have expertise in both aspects.
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Tony is a senior lawyer with more than 35 years' experience in complex agreements and disputes, particularly across intellectual property (IP), information technology (IT), life sciences, and franchising. Tony also has broad international experience, particularly in the USA, UK, and Asia. Tony has been involved in many seminal deals and cases. His experience includes cases involving expert evidence and cross jurisdiction co-ordination with an emphasis on technical and parallel issues. Tony ha...
Ben Coogan practises in all areas of intellectual property law including agreements and disputes, information technology, privacy, confidential information, competition and consumer law, and litigation. In addition to his intellectual property law experience, Ben is also an experienced practitioner in the area of defamation and media law. Ben has considerable specialist litigation and prosecution experience in patent, copyright, trade mark, designs, and confidential information matters. Ben&r...
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