Linnmore Pty Ltd v Shell Company of Australia Ltd

[1991] FCA 347

;

JUDGMENT NO. .... 3e7 , . .- .! l-

IN THE FEDERAL COURT OF AUSTRALIA )	NO. QG 44 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

!	-
I

BETWEEN :	LINNMQRE PTY. LTD.	1	:
(

Applicant	L.)
'_

AND:  THE SHELL COMPANY OF AUSTRALIA LIMITED

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	27 MARCH 1991
WHERE MADE:	BRISBANE

I

THE COURT ORDERS THAT:

Until trial or further order and upon the applicant

giving the usual undertaking as to damages -

1.   The respondent do nothing to prevent Mr. Christopher Worrall from being present upon the Shell Mount Isa Roadhouse premises.

2.   The respondent take no step inconsistent with the rights which the applicant would have if the parties had reached agreement in terms to be found in Exhibits C, D, E, F and G to the af fidavit of Mr. C.E. Atherton, filed in these proceedings today.

Order 36 of the Federal Court Rules.

3.   The costs of ' the application for interlocutory relief be the applicant's costs in the proceedings.

THE COURT FURTHER ORDERS THAT:

4.    The parties may apply on short notice to vary the terms of the injunction.

Settlement and entry of orders is dealt with in

IN THE FEDERAL COURT OF AUSTRALIA	1	No. QG 44 of 1991
PUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: LINNMORE PTY. LTD.

Applicant

AND:  THE SHELL COMPANY OF AUSTRALIA LIMITED

Respondent

C O N :  PINCUS J.

PLACE: BRISBANE

m: 27 MARCH 1991

EX TEMPORE REASONS FOR JUDGMENT

This is an application for interlocutory relief. The applicant's case is that it made an agreement with the respondent in 1989 to take a lease of certain premises in Mount Isa. The terms of the agreement are, the applicant says, set out in a number of documents which the respondent prepared in 1989 and which I think are Exhibits C, D, E, F and G to the affidavit of Mr. C.E. Atherton, filed today.

It was contemplated that possession would be taken under those documents in September 1989, but according to the evidence there was a dispute with the previous tenant and that resulted in the deferral of the operation of the agreement. The applicant's case is that the dispute with the previous tenant which resulted in proceedings in this Court, being numbered G96 of 1989, was resolved in September last, and it was then agreed between the parties that for the time being Mr. Worrall, who apparently controls the applicant, would act as manager of the premises in order to mollify local feeling.

In legal analysis it appears that the applicant's

case is that a binding agreement was made in 1989 and its operation was suspended twice by oral agreement of the parties, the second suspension being that just referred to, involving Mr. Worrall acting as manager pro tem. It is noticeable that no affidavit has been filed on behalf of the respondent denying the factual elements of the applicant's case.

Mr. McCormick, who appeared for the respondent, explained that he did not wish to waste the Court's time by arguing the question whether there is a serious question to be tried, and I appreciate his consideration. He said from the bar table that the applicant's case would be disputed. Nevertheless, there was time to prepare an affidavit and it clearly goes in favour of the applicant, as Mr. Quinn submitted, that no affidavit has been filed giving even in	general terms a denial of the factual allegations which the	applicant has made.
I do not have before me a complete account of recent contacts between the parties. There seem to have been negotiations about this and other matters. The upshot was that, which I gather is not disputed, the respondent attempted to insist on a right to revise the terms initially agreed

substantially in its own favour. That was resisted and on 22 March 1991, five days ago, the applicant's solicitor wrote requesting that the respondent resubmit franchise documents based on the terms referred to in earlier correspondence.

Mr. Quinn of counsel for the applicant says that there was a binding agreement between the applicant and the respondent in 1989, and he submits that even if there was not, the applicant may rely upon the extended definition of agreement in the Petroleum Retail Marketing Franchise Act 1980. This makes an agreement in the Act prima facie include an understanding without legal force. However, it seems to me unnecessary to discuss that because there is evidence, at present undisputed by any countering affidavit, that the terms were agreed in 1989, and that the applicant has not abandoned its rights.

That leaves for consideration the question which was argued by Mr. McCormick, the balance of convenience and the exercise of discretion.

A copy of the draft application instituting the proceedings which came before me today was sent to the respondent's solicitors yesterday evening. Some hours later the respondent got the police to remove Mr. Worrall from the site, apparently taking this unusual step on advice after having been made aware of the imminence of the proceedings. It is possible that what prompted this step was the thought

that the Court would look more favourably on the respondent's case, the status quo having been changed in the sense that the applicant was yesteiday, in practical terms, represented on the site, and now it is not.

It appears to me that the Court should, insofar as this should be regarded as bearing on the exercise of a discretion, do nothing to encourage conduct of that sort, and I do not propose to do anything to encourage it. If the police can be got to march one's opponent off a site which is in dispute, things have come to a pretty pass. In my opinion the balance of convenience favours firstly reversing what was done last night. Although Mr. Worrall is not a party to the proceedings, I propose to make an order directly countering what was done by ordering that the respondent do nothing to prevent him personally from being upon the premises.

As for the rest, an injunction will be granted, the
terms of which will need to be discussed between Mr. McCormick

and Mr. Quinn. Its general effect will be to restrain the

which the applicant would have if the exhibits referred to	respondent from taking any step inconsistent with the rights
earlier in these reasons constituted a duly binding agreement. Those exhibits were C, D, E, F and G to Mr. Atherton's affidavit.

I propose that the injunction will be until trial or further earlier order and the costs will be the applicant's costs in the proceedings.

The orders will be that until trial or further order (1) the respondent do nothing to prevent Mr. Christopher Worrall from being present upon the Shell Mount Isa Roadhouse premises: (2) the respondent take no step inconsistent with the rights which the applicants would have if the parties had reached agreement in terms to be found in Exhibits C, D, E, F and G to the af fidavit of Mr. C.E. Atherton, filed in these proceedings today.

It will be further ordered that the costs of the application for interlocutory relief be the applicant's costs in the proceedings. It would be necessary for the applicant to give an undertaking as to damages.

I will further order that the parties may apply on short notice to vary the terms of the injunction.	I certify that this and the
four preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

Associate