Hudson, Raymond James v B.P. Australia Ltd - [1984] FCA 313

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JUDGMENT No.

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IN THE FEDERAt COURT OF AUSTRALIA 1

)

NEW SOUTH W E S DISTRICT REGISTRY 1

No. G266 of 1984

)

GENE!RAL

DIVISION

)

RAYMOND JAMES HUDSON and

BARRY F'REDERICK KURTZ

Applicants

B.P. AUSTRALIA LIMITED

Respondent

CORAM: FOX J.

m: 25 September 1984

( E X TEMPORE)

REASONS FOR JUDGMENT

FOX J.

am hearing an application

f o r

interlocutory relief

which is based upon the requirements of 5.17 of the Petroleum

Retail Marketinq Franchise Act 1980 ("the Act"). It is agreed by

the parties that if I take the view that a notice purporting to

have been given under that section is invalid, I may make an

order for final relief.

The facts can be stated briefly.

The applicants conduct

a service station in Ultimo, Sydney. The respondent

owns the

land on which the business is conducted, and supplies petroleum

products to

the applicants. The applicants held a lease of the

land from the respondent for	a term of three years which expired
on 31 July 1984.

The respondent had been considering the sale of the land

for some time. By letter dated

28 June 1984

it gave notice to

the applicants that it did not intend

to renew the lease.

The

letter is the notice to

which

I have referred earlier and it was

as follows (omitting formal parts):

“Re: Premises at 478-492 Wattle St., Ultimo“

Please take notice that our Company has decided not to

renew

your

Lease

(franchise

agreement)

the

abovementioned service station on the ground that our to sell its interest in those marketing premises to a

person not being

an associate of our Company.

The

facts

relating

the

ground

upon

which

the

decision not to renew your franchise agreement are that

26th

June.

1984

our

Company

entered

into

negotiations with Mons Grove Developers Pty. Ltd. to agreement shall expire before the end of the ninetieth

sell the property and such negotiations are proceeding.

day after the receipt by

you

of this notice then

subsection ( 9 )

of section

17 of the Petroleum retail

CsicJ Marketing Franchise Act 1980 provides that the

term of your franchise agreement shall be deemed to be

extended until the end

of that ninetieth day.

This notice also serves as a

notice fixing the explry

date of your Lease for the purposes of sub-clause

5(viii) of that document.

Please note that if and when the terms of the Contract

for Sale are settled upon you will be offered

BP’S

3 .

The general purpose and operation of the Act has been

dealt with in decisions of this Court (J.M. O'Brien Enterprises

Ptv. Ltd. v. Shell Co. of

Australia (1982) 45 A.L.R. 81;

Chronopolous v.

Caltex Oil Australia Ptv. Limited

(1982) 45

A.L.R. 481; Richards v. Golden Fleece

(1983) 49 A.L.R. 337).

Sectlon 17

relates to "renewal of franchise agreements". It is

common ground that the lease

was

a "franchise agreement": the

applicants being franchisees for…

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 Hudson, Raymond James v B.P. Australia Ltd

Details

AGLC: Hudson, Raymond James v B.P. Australia Ltd [1984] FCA 313
Case: [1984] FCA 313
Decision Date: 25 Sep 1984

CaseChat Overview and Summary

The case before the court involves an application for interlocutory relief by the applicants, Raymond James Hudson and Barry Frederick Kurtz, against the respondent, B.P. Australia Limited. The applicants are seeking relief under section 17 of the Petroleum Retail Marketing Franchise Act 1980, which governs the renewal of franchise agreements. The applicants operate a service station in Ultimo, Sydney, under a lease from the respondent, who owns the land and supplies petroleum products. The lease expired on 31 July 1984, and the respondent notified the applicants on 28 June 1984 that it did not intend to renew the lease. The applicants are challenging the validity of this notice, arguing that it does not comply with the requirements of section 17 of the Act.

The primary legal issue before the court was whether the notice given by the respondent to the applicants was sufficient under section 17(8) of the Petroleum Retail Marketing Franchise Act 1980. Section 17(8) requires the franchisor to serve written notice to the franchisee, not later than 30 days before the expiration of the agreement, setting out full particulars of the ground or grounds, including a statement of the facts relating to each ground, upon which the decision not to renew is based. The court had to determine whether the notice provided by the respondent met these requirements.

The court found that the notice was insufficient because it contained a significant error regarding the name of the company with which negotiations were taking place. The notice referred to a company that did not exist, which prevented the applicants from properly investigating and testing the assertion that negotiations were being carried on. Furthermore, the notice failed to provide sufficient information about the stage of negotiations and whether the requirements of the Act, such as good faith and normal course of business, were being met. The court concluded that the notice did not provide the applicants with a full opportunity to investigate and test the assertions made by the respondent.

The court ruled that the notice provided by the respondent was not sufficient under section 17(8) of the Act. Consequently, the court directed the respondent to renew the lease in accordance with the Act's provisions. The respondent was ordered to pay the applicants' costs of the application. The matter was stood over with liberty to either party to apply for further orders if needed.

Orders