Commonwealth Numbered Acts

PETROLEUM RETAIL MARKETING FRANCHISE ACT 1980 No. 139, 1980 - SECT 11

11. (1) In this section-



"assignment" does not include an equitable assignment;



"interest" includes rights and benefits;



"obligations" includes liabilities and burdens;



"prescribed agreement" means a franchise agreement containing provisions of
the kind referred to in paragraph (b) of the definition of "franchise
agreement" in sub-section 3 (1).

(2) A corporation is not entitled, directly or indirectly, to enforce, or to
rely as a defence on, any provision of a franchise agreement or of a related
agreement (not being a provision to which sub-section (3) applies) that would,
but for this sub-section, have the effect of-

   (a)  prohibiting the franchisee in relation to the first-mentioned
        agreement from assigning the whole or part of his interest under the
        first-mentioned agreement;

   (b)  limiting or restricting, or imposing conditions on, his power to make
        such an assignment; or

   (c)  requiring him, before making such an assignment, to offer to surrender
        the whole or part of that interest to the franchisor.

(3) Where a provision of a prescribed agreement has the effect of prohibiting
the franchisee from assigning the whole or part of his interest under the
agreement without the consent of the franchisor, the franchisor shall not
unreasonably withhold its consent and, where its consent is unreasonably
withheld, it shall be deemed to have granted its consent.

(4) Where a franchisor withholds consent to an assignment of the whole or part
of the interest of the franchisee under a prescribed agreement (being an
agreement containing a provision referred to in sub-section (3)) and the
proposed assignee is a person who is none of the following:

   (a)  a person with prescribed experience;

   (b)  a member of the franchisee's immediate family;

   (c)  a company controlled by the franchisee, then, for the purposes of
        sub-section (3), the consent of the franchisor shall be deemed to be
        reasonably withheld.

(5) Where a franchisee proposes to make an assignment of the whole of his
interest under a prescribed agreement (being an agreement containing a
provision referred to in sub-section (3)) to a person who is neither a member
of the franchisee's immediate family nor a company controlled by the
franchisee, he shall serve on the franchisor a notice in writing, offering-

   (a)  to terminate the franchise agreement for an amount of consideration
        equal to the consideration for the proposed assignment; or

   (b)  to assign the whole of that interest to such person as the franchisor
        may nominate, on terms not less favourable to the person nominated
        than the terms of the proposed assignment.

(6) Where, without the consent of the franchisor, a franchisee in relation to
a prescribed agreement (being an agreement containing a provision referred to
in sub-section (3))-

   (a)  makes an assignment of the whole of his interest under the agreement
        without first having served on the franchisor a notice under
        sub-section (5); or

   (b)  after having served on the franchisor such a notice, but before the
        expiration of 30 days after service of the notice-makes an assignment
        of the whole of his interest under the agreement to a person other
        than a person nominated by the franchisor, then, for the purposes of
        sub-section (3), the consent of the franchisor shall be deemed to have
        been reasonably withheld.

(7) For the purposes of sub-section (3), where a franchisor requires payment
or other consideration for its consent to an assignment (other than payment of
reasonable administrative and legal costs incurred in the giving of consent),
the consent shall be deemed to be unreasonably withheld.

(8) Nothing in this section shall be taken to limit the grounds upon which
consent to an assignment may be reasonably withheld.

(9) When a franchisee duly assigns the whole or part of his interest under a
prescribed agreement (whether or not the agreement contains a provision
referred to in sub-section (3)), the agreement has effect, by force of this
sub- section, as if the franchisor, the franchisee and the assignee had
agreed-

   (a)  in the case of an assignment of the whole of that interest-to the
        immediate assignment to the assignee of all the obligations imposed on
        the franchisee by the provisions of the agreement, other than
        obligations transferred by the assignment of that interest; or

   (b)  in the case of an assignment of part of that interest-to the
        franchisee and the assignee immediately becoming jointly and severally
        bound by all those obligations, other than obligations transferred by
        the assignment of that interest.

(10) Where-

   (a)  a franchisee duly assigns to a person (in this sub-section referred to
as the "assignee") the whole or part of his interest under a prescribed
agreement that is one of 2 or more related agreements (whether or not the
prescribed agreement contains a provision referred to in sub- section (3));
and

   (b)  at or after the time when the assignment is made, the person who is
        the franchisee in relation to a related agreement (in this sub-section
        referred to
as the "assignor") duly assigns the whole or part of his interest under that
related agreement to the assignee, that related agreement has effect, by force
of this sub-section, as if the corporation that is the franchisor in relation
to that related agreement, the assignor and the assignee had agreed-

   (c)  in the case of an assignment of the whole of the interest under that
        related agreement-to the immediate assignment to the assignee of all
        the obligations imposed on the assignor by the provisions of that
        related agreement; or

   (d)  in the case of an assignment of part of the interest under that
        related agreement-to the assignor and the assignee immediately
        becoming jointly and severally bound by all those obligations.

(11) Where, but for this sub-section, the whole or part of the interest of the
franchisee under a franchise agreement would not be capable of assignment by
reason of the agreement being a contract of a personal nature, the agreement
has effect, by force of this sub-section, as if the franchisor had agreed, at
all relevant times, that that interest, or that part of that interest, as the
case may be, was capable of assignment.

(12) Where an assignment of obligations under a franchise agreement occurs by
virtue of paragraph (9) (a) or (10) (c), then, for the purposes of sections 
13 , 15 and 17, the franchise agreement as subsisting after the assignment
shall not be taken, by reason of the assignment, to be a new agreement.

(13) A reference in this section to obligations, in relation to the assignment
of an interest under an agreement, does not include a reference to an
obligation the time for the performance of which has arisen before the time
when the assignment is made.

(14) Nothing in this section shall be taken to affect the right of a
franchisee-

   (a)  to assign his interest under the franchise agreement by way of
        mortgage or charge; or

   (b)  to grant, confer or sublet a lesser interest derived from his interest
        under the franchise agreement, or to affect the operation of a
        provision of the agreement of a kind referred to in sub-section (2) to
        the extent that it relates to such an assignment or grant.