Chenoa Pty Ltd v Shell Company of Australia Limited, The - [1988] FCA 168

FOR LIMITED DISTRIBUTION
CATCHWORDS

Franchise agreement for distribution of petroleum products -

Petroleum Retail Marketins Franchise Act (1980) previously

held to be excluded from application to subject premises by

operation of 1984 amendment - period during which Act

inapplicable to premises held to commence on coming into
operation of amending Act - claim for possession of premises
- nature of distributor’s right to occupy premises - how
determinable - whether Court has discretion to decline to make an order for possession or postpone its operation - discretion to grant declaratory relief.

Petroleum Retail Marketins Franchise Act 1980 (Cth) ss. 3,
6 ( 1D)

Petroleum Retail Marketins Sites Act 1980 (Cth) ss. 3, 7, 11

No. VG 273 of 1985

FOR LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA 1
)
VICTORIAN DISTRICT REZISTRY

) No. VG 273 OF 1985
)
GENERAL DIVISION )

m: CHENOA PTY. LTD
(Applicant)
m: THE SHELL COMPANY OF
AUSTRALIA LIMITED
(Respondent)

Coram: Ryan J.

W: 13 April 1988
Place: Melbourne

In a judgment delivered on 10 March 1988 I indicated my

reasons for concluding that the applicant is not entitled, in respect of its tenure of premises comprising a transport refuelling terminal at 542 Footscray Road, West Melbourne, to

the protection afforded by the Petroleum Retail Marketinq

Franchise Act 1980 as amended, ("the Franchise Act").

However, there remain for consideration the form of order

which should be made disposing of the application and the
respondent's cross-claim for possession of the premises.
The amended cross-claim of the respondent ("Shell"), as

further amended pursuant to leave granted by me on 25 March 1988, referred to and repeated relevant paragraphs of its amended defence and concluded with the following paragraphs:-

- 2 -

"28. Insofar as the cross-claimant was required
to serve a notice on the cross-respondent to quit
or deliver up possession of the premises, it did
so by letter dated 11 December 1985 from its

solicitors to R.J. Clemente, the then solicitor
for the cross-respondent.
AND THE CROSS-CLAIt4AN!r CLAIMS:
1. Possession of the premises.

2. Such other and further relief as the Court
sees fit.

3. Costs. "

The defence to cross-claim filed on behalf of the

applicant ("Chenoa") comprised the following contentions:-
1. The Cross-Respondent is in possession and relies upon its possession.

2.

Upon the true construction of S.6(1D) and in

the events which have happened, the
Cross-Respondent retains protection of the provisions of the Franchise Act on and after the 1st January, 1985, and the Cross-Claimant
is prevented from enforcing any rights given

in the Judgement of the 10th March, 1988
until the Cross-Respondent has been afforded
proper notice of hearing to permit it to
answer the claim for possession or to permit

it to mitigate or modify the terms of an

Order for Possession that might be made.

3 . The Cross-Claimant has not served upon the

Cross-Respondent anotice requesting the
Cross-Respondent or other person for the time

being entitled to possession to quit and
deliver up possession of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chenoa Pty Ltd v Shell Company of Australia Limited, The

Details

AGLC: Chenoa Pty Ltd v Shell Company of Australia Limited, The [1988] FCA 168
Case: [1988] FCA 168
Decision Date: 13 Apr 1988

CaseChat Overview and Summary

Chenoa Pty Ltd, a franchisee of Shell Company of Australia Limited, applied for relief in relation to its occupation of premises used as a petroleum products distribution depot. Shell filed a cross-claim seeking possession of the premises. The court had to determine the nature of Chenoa's right to occupy the premises, whether there was an effective notice to quit, and if the court had a discretion to decline to make an order for possession or postpone its operation. The court held that Chenoa's right to occupy the premises was a licence and not a lease, as it did not confer the right to exclude Shell from the premises. The notice given by Shell to Chenoa was effective to terminate the consignment distributor agreement. The court found that the relevant provisions of the Petroleum Retail Marketing Franchise Act 1980 (Cth) did not apply from the date the amending Act came into force. The court declined to exercise its discretion to decline to make an order for possession or postpone its operation, as Chenoa's right to occupy the premises had been properly determined. The court also refused to make a declaration that a notice under s.6(1E) of the Act was void and of no effect, as there was no real question between the parties in respect of that notice. The application was dismissed, and an order was made that Shell have possession of the premises at 542 Footscray Road, West Melbourne. The court would hear counsel on the question of costs.

Orders