B.H.C. Nominees (No 49) Pty Ltd v Total Aust Ltd and Anor

[1982] FCA 178

Re: B.H.C. NOMINEES (No. 49) PTY. LIMITED and CENTENARY INVESTMENTS PTY. LTD.
And: TOTAL AUSTRALIA LIMITED
Nos. G85 and 86 of 1982
Administrative law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.

CATCHWORDS

ADMINISTRATIVE LAW - Petroleum Retail Marketing Franchises - Application for interlocutory injunction - no franchise agreement - franchisee in breach of agreement - discretion to grant interim relief.

Petroleum Retail Marketing Franchise Act 1980 sub-ss. 10(4)(a); 21(2) and (4).

HEARING

BRISBANE

#DATE 10:8:1982

ORDER

1. The application for interlocutory relief is dismissed.

2. The applicant pay the respondents costs including reserved costs to be taxed.

JUDGE1

In respect of applications G85 and G86 of 1982 by B.H.C. Nominees (No. 49) Pty Limited and Centenary Investments Pty Ltd., on the applicant's own evidence as it stands for present purposes, I am satisfied that there is no franchise agreement to which the Petroleum Retail Marketing Franchise Act 1980 applies.

In the circumstances, no question strictly arises in connection with s.10 sub-s. 4(a) of that Act. But, were I of the opinion that there are franchise agreements, I would find a persistent failure or refusal to make payment with respect to motor fuel supplied in accordance with the arrangements entered into between the parties.

I would also, in the exercise of my discretion under sub-ss. (2) and (4) of s.21 of the Act, in any event decline to order supply by the respondent to either applicant except on the basis which has been offered by the respondent, which would ensure payments to the respondent which is already a large creditor. I note that an undertaking as to damages by either applicant would be worthless if it were later found that there were insufficient funds to pay for fuel supplied.

The application for interlocutory relief is dismissed in each case, and in each case the applicant must pay the costs, including any reserved costs, of the respondent to be taxed.