BOQ wins against former NSW owner managers
The Supreme Court of NSW yesterday dismissed claims made by 11 former New South Wales franchisees against the Bank of Queensland. The claims were for compensation for losses suffered as a result of the failure of their respective franchises, including lost wages and, in some instances, claims for stress and related illnesses.In a brief statement to the ASX to announce it had successfully defended this "long-running legal case", BOQ noted that the Supreme Court ruling follows a 2010 Federal Court judgment which found in its favour in relation to similar claims from another former owner-manager in NSW.All claims have their genesis about 10 years ago, when BOQ set out to expand interstate through a franchising model that had proved successful in its home territory of Queensland. This model involved setting up businesses that become known as owner managed branches, or OMBs.Between August 2004 and April 2007, the bank appointed a number of franchisees in New South Wales. Many, however, were not successful and ultimately a substantial number of branches were either closed or taken over by BOQ.The former franchisees' claims centred on four main areas of alleged poor conduct by the bank: • Misleading and deceptive conduct. Each of the owner branch managers alleged that the Bank had made a number of representations to them concerning, among other things, the potential of the franchises to earn profits, which induced them to enter into their respective franchise agreements and to continue to trade. It was alleged by the OMBs that those representations were misleading and deceptive in contravention of the Trade Practices Act 1974 (Commonwealth) and Fair Trading Act 1987 (NSW).• Unconscionable conduct. Generally, by making representations as to the likely profitability of branches it was alleged that BOQ was able to take advantage of what was said to be "asymmetry in the information the bank had concerning the OMB model" compared to what the OMB Parties knew, and there was an inequality of bargaining power between the prospective franchisees and the bank.• Negligence. The claim was that the bank owed a duty of care to prospective and actual owner managers not to make misstatements as to the viability of the franchise businesses in NSW; and where some owners suffered from psychiatric injury as a consequence of the bank's conduct, it was alleged that BOQ owed a duty of care to prevent that injury and it breached that duty of care.• In was alleged that sec 106 of the Industrial Relations Act 1996 (NSW) applied to the extent that the directors of some of the franchisees were, effectively, employees of the bank and that the arrangements under which they were employed were or had become unfair or unjust entitling them to relief.In finding in favour of the bank on all four grounds, the court noted that the franchisees "understood that they had to, and in most cases did, make their own inquiries and make their own assessment of the viability of a Bank of Queensland franchise in New South Wales operated