'Number one' OMB operators brawl with BOQ

Tawdry details of yet another wrangle between Bank of Queensland and disaffected franchisees of the bank's branches have received an airing in the Supreme Court of Victoria.

Heath MacFadyen and Mark Ellis were the operators of a BOQ branch in Geelong.

BOQ obtained control of the branch in late 2013, with the bank seeking court orders to secure control.

A statement of claim prepared by MacFadyen and Ellis contends BOQ "engaged in misleading and deceptive conduct in breach of the Australian Consumer Law in having represented to them that their branch could become the number one branch in Australia in the bank's 2012 plan year."

The pair allege that "the bank was in the course of reviewing its policy for franchise operations and implementing policy changes that were likely to frustrate this goal."

Their claim continued:

"The bank induced MacFadyen and Ellis to renew the initial OMB agreement by telling them that in the bank's assessment, based on performance during the Bank's 2011 plan year [they], with the Bank's help, could become the number one branch in Australia in the Bank's 2012 plan year ('the 2012 Goal')."

The plaintiffs said the outline of "the 2012 Goal was made by Larry Heath, the bank's regional manager, for the Victoria 2 region during a face-to-face meeting with MacFadyen and Ellis at the branch.

The asserted that "Heath said to MacFadyen and Ellis [that] the bank intended to provide [them] with the assistance sufficient for the attainment of the 2012 goal" and that "there were no circumstances known to the bank that hindered the attainment of the 2012 goal".

MacFadyen and Ellis produced many versions of their claim, exasperating the judge, Justice Sifris, and putting the plaintiffs on the back foot.

Sifris wrote: "The bank has been put to great expense over the year in dealing with inadequate version after version of the statement of claim.

"In my view anything beyond seven versions over the period of a year is unreasonable and unfair and accordingly not in the interests of justice. I have gone back and perused all the different versions. All are fundamentally flawed and it is clear enough that the plaintiffs are unable to plead a cause of action.

"Although version six did address some of the concerns apparent in version seven, it was deficient in other major respects."

Sifris took a trenchant view of his options.

"The right to seek relief from a court is not an absolute right. It carries with it a responsibility, now directly enshrined in legislation, namely the Civil Procedure Act 2010 (Vic).

"The plaintiffs have not discharged this responsibility. Given this history, the Court cannot be confident that the plaintiffs will ever be able to articulate their claim. They should not be permitted to continue. "