Bingham v 7-Eleven Stores Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Bingham & Anor v 7-Eleven Stores P/L [2003] QCA 402

PARTIES:

GAVIN BINGHAM and MARGARET BINGHAM
(plaintiffs/respondents)
v
7-ELEVEN STORES PTY LTD ACN 005 299 427
(defendant/appellant)

FILE NO/S:

Appeal No 6635 of 2002
Appeal No 2033 of 2003
SC No 2766 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from interlocutory decision
General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 September 2003

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2003

JUDGES:

Williams and Jerrard JJA and Muir J
Separate reasons for judgment of each member of the Court, Williams and Jerrard JJA agreeing as to the orders made, Muir J dissenting in part

ORDERS:

1. Appeal No 6635 of 2002 dismissed with costs
2. Appeal No 2033 of 2003 dismissed with costs

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INJUNCTIONS FOR PARTICULAR PURPOSES – TO RESTRAIN BREACH OF CONTRACT – NEGATIVE STIPULATIONS – GENERALLY – where appellant sought to terminate agreement with respondents on ground of alleged breach by respondents – where respondents commenced proceedings claiming permanent injunction restraining appellant from terminating agreement – where also brought application for interlocutory injunction – where interlocutory injunction granted by learned primary judge – whether was a claim seeking to enforce in equity a negative contractual stipulation – whether injunction involved supervision by the court of a relationship which had broken down – whether balance of convenience in favour of granting injunction – whether damages adequate remedy

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – where appellants sought to amend their defence during course of trial – where allegations in defence vague – where insufficient evidence tendered at trial to support allegations in defence – where learned trial judge refused leave to amend defence – whether refusal of amendment deprived appellants of opportunity of a fair trial – whether was prima facie evidence available in support of the critical allegation

Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301, considered
Ahmet v Pacific Seven Pty Ltd, unreported, Supreme Court of Victoria, No 998 of 1987, 30 April 1987, referred to
Axxess Australia Pty Ltd v Primus Telecommunications (Aust) Pty Ltd [2000] VSC 64, cited
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, cited
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, followed
Cropper v Smith (1884) 26 Ch D 700, referred to
Dataforce Pty Ltd v Brambles Holdings Ltd [1988] VR 771, distinguished
House v The King (1936) 55 CLR 499, cited
J C Williamson Limited v Lukey and Mulholland (1931) 45 CLR 282, followed
Lovell v Lovell (1950) 81 CLR 513, cited
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, considered
Sanderson Motors (Sales) Pty Ltd v Yorkstar Motors Pty Ltd [1983] 1 NSWLR 513, considered
State of Queensland v Australian Telecommunications Commission

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Details
Case
[2003] QCA 402
Decision Date

CaseChat Overview and Summary

Bingham was the appellant and 7-Eleven Stores Pty Ltd was the respondent in a case before the Queensland Court of Appeal. Bingham, a franchisee of 7-Eleven, sought to terminate an agreement with 7-Eleven on the basis of alleged breaches by 7-Eleven. In response, 7-Eleven sought a permanent injunction restraining Bingham from terminating the agreement and brought an application for an interlocutory injunction. The learned primary judge granted the interlocutory injunction. The court had to determine whether the claim was seeking to enforce in equity a negative contractual stipulation, whether the injunction involved supervision by the court of a relationship which had broken down, whether the balance of convenience was in favour of granting the injunction, and whether damages were an adequate remedy.

The court held that the claim was indeed seeking to enforce in equity a negative contractual stipulation, and that the interlocutory injunction did not involve the court supervising a relationship that had broken down. The court found that the balance of convenience favoured granting the injunction, as the parties were locked into the franchise agreement for an uncertain period of time and damages were not an adequate remedy. The court dismissed the appeal, finding that the primary judge was correct in granting the interlocutory injunction.

In a separate matter, Bingham sought to amend their defence during the course of the trial. The allegations in the defence were vague and insufficient evidence was tendered at trial to support the allegations in the defence. The learned trial judge refused leave to amend the defence. Bingham argued that the refusal deprived them of the opportunity of a fair trial and that there was prima facie evidence available in support of the critical allegation. However, the court found that the refusal did not deprive Bingham of the opportunity of a fair trial and that there was no prima facie evidence available in support of the critical allegation.

The court dismissed both appeals with costs. The appeal No 6635 of 2002 was dismissed with costs, and the appeal No 2033 of 2003 was also dismissed with costs.

Orders

Orders of the court

1. Appeal No 6635 of 2002 dismissed with costs

2. Appeal No 2033 of 2003 dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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