Nutrien AG Solutions Fertiliser Pty Ltd v Fremantle Port Authority - [2024] WASC 178

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NUTRIEN AG SOLUTIONS FERTILISER PTY LTD -v- FREMANTLE PORT AUTHORITY [2024] WASC 178
CORAM:   STRK J
HEARD:   26 APRIL 2024
DELIVERED          :   29 APRIL 2024
PUBLISHED           :   15 MAY 2024
FILE NO/S:   CIV 1442 of 2024
BETWEEN:   NUTRIEN AG SOLUTIONS FERTILISER PTY LTD
Plaintiff
AND
FREMANTLE PORT AUTHORITY
Defendant

Catchwords:

Equity - Injunction - Equitable promissory estoppel - Injunction to restrain lessor from taking possession of leased premises after expiry of lease term - Whether the plaintiff has established a serious question to be tried - Whether the balance of convenience favours injunctive relief - Turns on own facts

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	S Penglis SC & L Pham
Defendant	:	K Lendich SC & P Honey

Solicitors:

Plaintiff	:	Gilbert + Tobin
Defendant	:	Thomson Geer - Perth

Cases referred to in decision:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Austotel Pty Ltd v Franklins Self‑Serve Pty Ltd (1989) 16 NSWLR 582
Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Christmas Island Resort Pty Ltd v Casinos Australia International (Christmas Island) Pty Ltd (Unreported, WASC, Library No 960641, 8 October 1996)
Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752
Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717
DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728
Doueihi v Construction Technologies Australia Pty Ltd [2016] NSWCA 105
Emeco International Pty Ltd v O'Shea [2012] WASC 282
Evans v Evans [2011] NSWCA 92
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Metropolitan Petar v Mitreski [2003] NSWSC 1007
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
National Australia Bank Ltd v Joyce [2012] WASC 224
Nutrien AG Solutions Ltd v Pingrup Traders Pty Ltd [2022] WASC 251
Omar v Darul-Iman (WA) Inc [2013] WASC 311
S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637
Seven Network (Operations) Ltd v Warburton (No 2) [2011] NSWSC 386
Shi v Agostino Nominees Pty Ltd [No 2] [2023] WASC 86
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36
Sullivan v Sullivan [2006] NSWCA 312
Talent Konnects Pty Ltd v Marvelli [2022] WASC 128
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Warner-Lambert Company LLC v Apotex Pty Ltd [2014] FCAFC 59; (2014) 311 ALR 632
Wilson v Arwon Finance Pty Ltd [2020] WASCA 137

STRK J:

Introduction

Nutrien AG Solutions Fertiliser Pty Ltd (Nutrien) is engaged in the business of manufacturing and supplying fertiliser and other agricultural products. From 13 December 2013 Nutrien has been the lessee of 41,301 square metres of land described as Lease Area OH6 at the Kwinana Bulk Cargo Jetty.
Fremantle Port Authority (FPA) is responsible for the control and management of the Port of Fremantle, including the Kwinana Bulk Cargo Jetty. The original parties to a written lease of Lease Area OH6 dated 8 July 2003 (the Lease) were FPA and United Farmers Co‑operative Company Limited. I understood it to be common ground that Nutrien (by assignment) became the lessee of Lease Area OH6; that the Lease provides that the term of the Lease will end on 30 April 2024; and that unless Nutrien were to remain in possession of Lease Area OH6 after the expiry of the term of the Lease pursuant to the holding over provision at cl 5.3 of the Lease, Nutrien, under the terms of the Lease, would be obliged to peaceably surrender and yield up Lease Area OH6 to FPA.
Nutrien wished to continue its operations from Lease Area OH6 after 30 April 2024 and from around June 2019, Nutrien and FPA engaged in discussions as to the basis upon which Nutrien might remain as lessee. It is Nutrien's position that from on or around 4 September 2023, Nutrien proceeded on an assumption commonly held with FPA that the detailed terms of a deed of grant of option and variation of lease had been agreed.
A fire occurred at the Kwinana Bulk Cargo Jetty on 9 February 2024. While investigations concerning the cause of the fire continue, it appears uncontroversial that the fire impacted Lease Area OH6 causing damage. While Nutrien has continued to operate from Lease Area OH6 since 14 February 2024, it has done so on a modified basis, working around the areas impacted by the fire. The fire was described by counsel for FPA as a significant change in circumstance.[1]
[1] ts 45 (26 April 2024).
FPA's position with respect to the damage to the shed on Lease Area OH6 caused by the fire is that repairing the shed, or demolishing and rebuilding the shed is uneconomical, and does not meet FPA's future strategic objectives to develop the area to be efficient common user infrastructure.[2]
[2] Affidavit of JA Allardice affirmed on 24 April 2024, par 19.
By letter dated 28 March 2024, FPA notified Nutrien that the Lease will expire on 30 April 2024 and Nutrien will not be entitled to occupy, use or retain possession of any part of Lease Area OH6 after the expiration of the Lease; after the expiration of the Lease, Nutrien will not be entitled to any holding over in relation to Lease Area OH6 pursuant to cl 5.3 of the Lease or otherwise; and Nutrien must comply with its yielding up obligations under the Lease.[3]
[3] Affidavit of AJ Duperouzel sworn 22 April 2024, pars 96 ‑ 99, AD‑44.
Among other things, Nutrien says that at all times from around September 2022 (at the latest) until receipt of the communication dated 28 March 2024, FPA encouraged and/or induced Nutrien to assume that it had been agreed with FPA that Nutrien would have an option to remain in possession of Lease Area OH6 for a further period of four years, subject only to the FPA providing two years' notice of termination. It says that FPA intended for Nutrien to act, or refrain from acting, in reliance on this and other assumptions; and as a result of that reliance and the assumptions, Nutrien did not take steps to source and move Nutrien's operations to an alternative site. It also says that if FPA were to depart from the assumptions and require Nutrien to vacate Lease Area OH6 upon the expiry of the Lease on 30 April 2024, and not facilitate the extended term, it would suffer irreparable detriment.
There were negotiations as between FPA and Nutrien following the issue and receipt of the communication dated 28 March 2024. Regrettably, they did not result in agreement.
By a writ of summons filed on 22 April 2024, Nutrien commenced a proceeding against FPA. In summary, Nutrien claims that FPA is subject to an equitable estoppel, preventing it from denying that:
(a)FPA had agreed to, and would, provide Nutrien with a four year extension to the term of the Lease (terminable on two years' notice) (defined in the pleading as the Extended Term);
(b)further or in the alternative, FPA would:
(i)negotiate with Nutrien, in good faith, to agree the terms of a written agreement to give effect to the Extended Term (defined in the pleading as the Formal Agreement); and
(ii)execute the Formal Agreement once its terms had been agreed between the parties; and
(c)further or in the alternative, FPA would not require Nutrien to surrender or yield up Lease Area OH6 upon the expiration of the original term of the Lease on 30 April 2024.
On 22 April 2024, Nutrien also filed a chamber summons for interlocutory injunctive relief, with a certificate of urgency certifying that the application was of such an urgent nature that it was required to be listed and heard as soon as possible and, in any event, prior to 30 April 2024. By the chamber summons Nutrien sought that upon its undertaking as to damages and pending the hearing and determination of the proceeding or until further order, FPA be restrained from:
(a)taking possession of the land described as Lease Area OH6; and
(b)otherwise interrupting or disturbing Nutrien's peaceable possession and enjoyment of Lease Area OH6 subject to the same terms and conditions as those under the written lease dated 8 July 2003 between FPA and United Farmers Co‑operative Company Limited for Lease Area OH6, as assigned to Nutrien.
FPA opposed the grant of injunctive relief in favour of Nutrien. I note that the appearance filed on behalf of FPA to the proceeding on 23 April 2024 was conditional. In the end, while FPA did not oppose the court hearing and determining Nutrien's application for urgent interlocutory injunctive relief,[4] it did so expressly reserving its right to seek a stay of the substantive proceeding on the basis that the substantive dispute between the parties was one that was to be referred to arbitration pursuant to cl 10 of the Lease.[5]
[4] As facilitated by the Commercial Arbitration Act 2012 (WA) s 5, s 9 and s 17J, when read with cl 10 of the Lease, a copy of which was annexed to the affidavit of AJ Duperouzel sworn on 22 April 2024, AD-1 (Lease cl 10 at pages 73 ‑ 74 of the affidavit).
[5] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-1 (Lease cl 10 at pages 73 - 74 of the affidavit).
The court acceded to Nutrien's request for an urgent hearing. The application for interlocutory injunctive relief was listed for directions at 3.00 pm on 24 April 2024, and for hearing at 10.30 am on 26 April 2024.
FPA was heard in opposition to the grant of relief. FPA's primary contention was that Nutrien failed to establish that it has a prima facie case for an estoppel.
In a short period, the parties collated and put before the court a large body of evidence. Over 900 pages of affidavit evidence was read and the court heard submissions for over four hours. After hearing counsel on Friday, 26 April 2024, I reserved my decision until the afternoon of Monday, 29 April 2024.
In summary, I was satisfied that there was a serious question to be tried, albeit difficulties with Nutrien's claim, and that the balance of convenience favoured the grant of injunctive relief.
The factors that tipped the balance of convenience in favour of the injunction were that the alternative had the practical effect of determining against Nutrien its claim for substantive relief in the form of the declarations and primary relief sought; and the significant impact on Nutrien's business if it were required to yield up Lease Area OH6 upon the expiry of the Lease term on 30 April 2024. After weighing in the balance all of the evidence before me, I concluded that there appeared to be a greater risk of injustice being done if I refused to grant the injunction in favour of Nutrien and Nutrien were to later succeed, than if I refused and FPA were to later successfully defend the proceeding.
Given the urgency of the application, on 29 April 2024 I gave an outline of my reasons for granting the relief sought by Nutrien pending an expedited trial or referral to arbitration, and indicated that I would publish my reasons for decision, which would include complete references to materials and evidence before the court, and complete citations of authorities relied upon in the disposition of the application. My reasons are set out below.

The evidence

The application was supported by the affidavit of Andrew John Duperouzel sworn 22 April 2024, to which Mr Duperouzel annexed documents marked AD‑1 to AD‑53. Mr Duperouzel is employed as Region Director - West by Nutrien Ag Solutions Ltd (formerly known as Landmark Operations Limited, the parent company of Nutrien), and is a director of Nutrien. In light of objections taken to parts of Mr Duperouzel's affidavit, a number of passages and annexure AD‑49 were not read.
The application was also supported by three further affidavits, which were read without objection:
(a)the affidavit of Samuel Joseph Williams affirmed on 24 April 2024, to which Mr Williams annexed documents marked SJW‑1 to SJW‑6. Mr Williams is a solicitor employed by Gilbert + Tobin, the solicitors for Nutrien;
(b)the affidavit of Richard Edward Dovison sworn on 25 April 2024, to which Mr Dovison annexed a document marked RD‑1. Mr Dovison is employed by Nutrien Ag Solutions Ltd (the parent company of Nutrien) as the Head of Safety, Environment, Property, Insurance and Risk; and
(c)the second affidavit of Mr Duperouzel sworn 25 April 2024, to which Mr Duperouzel annexed documents marked AD‑54 and AD‑55.
The application was accompanied by an undertaking as to damages proffered by Nutrien in the usual form. Counsel for Nutrien also relied upon a written outline of submissions filed on 22 April 2024, and a written outline of responsive submissions filed on 25 April 2024.
The application was also accompanied by a minute of proposed orders filed on behalf of Nutrien on 25 April 2024. As set out in that minute, Nutrien (then) proposed that the proceeding be entered into this court's commercial and managed cases list, and set down for a two day trial commencing on a date to be fixed, but as early as could be provided by the court after 10 June 2024 (Nutrien having proposed programming orders that provided for pleadings to be closed by 10 May 2024; discovery to be provided by 24 May 2024; and witness outlines to be filed by 7 June 2024).
At the hearing of the application, counsel for Nutrien also provided as aides for the court a dramatis personae and a table of cross‑references (cross‑referencing the statement of claim indorsed on the writ and the affidavit evidence of Mr Duperouzel, which Nutrien said supported the matters pleaded).
Two affidavits were filed on behalf of FPA in opposition to the application. The first was the affidavit of Jamie Alexander Allardice affirmed on 24 April 2024, to which Mr Allardice annexed documents marked JA‑01 to JA‑07. Mr Allardice is an employee of FPA and is the General Manager, Commercial.
The second was the affidavit of Hendrick Christoffel van Aswegen sworn on 26 April 2024, to which Mr van Aswegen annexed documents marked HVA‑01 to HVA‑03. Mr van Aswegen is a solicitor and partner of the firm Thomson Geer Lawyers, the solicitors for FPA.
Counsel for Nutrien objected to various passages within Mr Allardice's affidavit, and in the alternative submitted that they ought be given little (if any) weight.[6] Upon the suggestion of counsel, the hearing proceeded on the basis that counsel would make their submissions on the basis that Nutrien's objections would be overruled, but that the objections would later be considered and ruled upon in the disposition of the application.[7]
[6] Nutrien's responsive submissions filed on 25 April 2024, pars 2 - 3.
[7] ts 5 (26 April 2024).
In the end, I allowed the whole of Mr Allardice's affidavit into evidence, but gave no weight to the unqualified opinion expressed at par 17(b) and (c) of his affidavit, nor to the matters deposed to at par 18 as it was not in admissible form.
Counsel for FPA also relied upon a written outline of submissions filed on 25 April 2024 in opposition to the application.

The factual background

The Lease

The Lease was for a term of 21 years commencing on 1 May 2003 and ending on 30 April 2024. As to the term, the Lease also provided at cl 5.3 that in the event that Nutrien was to remain in possession of Lease Area OH6 after the expiration of the term of the Lease (that is, after 30 April 2024), Nutrien would be a 24 monthly tenant of the FPA at an annual rent equivalent to the rent payable by Nutrien as lessee at the expiration of the term, and otherwise on the same terms and conditions of the Lease; and any such holding over may be terminated by either party first giving 24 months' written notice to the other party of its intention to so determine such holding over.[8]
[8] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-1 (Lease cl 5.3 at page 66 of the affidavit).
The Lease provided that permitted use of Lease Area OH6 was the receival, storage and delivery of fertiliser; grains; and other products approved by FPA from time to time which complied with the relevant regulatory requirements.[9]
[9] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-1 (Lease sch item 7 at page 79 of the affidavit).
The Lease recorded various covenants and agreements as between the parties, which include the following.
The term 'Storage Facility' was defined in the Lease to mean the facility to be constructed by FPA or a third party contracted to FPA for the purpose of storing fertiliser on the Demised Land,[10] and by cl 3.5(b) of the Lease, FPA had undertaken to:
… make available and maintain the Storage Facility so as to accommodate the unloading of fertiliser from Vessels when required by the Lessee generally in accordance with the then applicable shipping schedule and otherwise to make available and maintain the Storage Facility in such manner as should be required to satisfy its obligations under the Agreement, according to good engineering and operating practices.
[10] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-1 (Lease cl 1.1 at page 46 of the affidavit).
Clause 3.16 of the Lease concerned 'yielding up' and provided that upon the expiration of the term of the Lease, Nutrien was to yield up to FPA Lease Area OH6.[11]

The Handling Agreement

[11] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-1 (Lease cl 3.16 at page 61 of the affidavit).

From time to time, FPA and Nutrien have also been parties to handling agreements.[12]
[12] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 11 - 15, AD-4; affidavit of JA Allardice affirmed on 24 April 2024, JA-04; and the second affidavit of AJ Duperouzel sworn on 25 April 2024, pars 5 - 7, AD‑54 (Kwinana Bulk Jetty Materials Handling Agreement - Into Storage dated 11 December 2023).
In December 2001, the United Farmers Co‑operative Company Limited and FPA entered into an agreement titled 'Agreement for Handling Fertiliser at Bulk Cargo Jetty Kwinana' (UFC Handling Agreement), and through deeds of novation, the obligations of the United Farmers Co‑operative Company Limited under the UFC Handling Agreement were acquired by Macrofertil Australia Pty Ltd (the former name of Nutrien).
As was recorded in the recitals to the UFC Handling Agreement, United Farmers Co‑operative Company Limited proposed to use the Kwinana Bulk Cargo Jetty, the 'Ship Unloader' and 'Conveyor System' for the purpose of importing fertiliser products and storing them in the 'Storage Facility' constructed by the FPA adjacent to the Kwinana Bulk Cargo Jetty for the storage of these fertilisers; and FPA had agreed to provide access to and use of the Kwinana Bulk Cargo Jetty and certain specified facilities for the importation and storage of fertiliser products by United Farmers Co‑operative Company Limited and to provide the services associated with unloading vessels carrying these products.[13]
[13] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 11 - 15, AD-4 (Recitals to the UFC Handling Agreement at page 245 of the affidavit).
As was observed by Mr Duperouzel, the UFC Handling Agreement contained express terms which included that FPA would construct and provide access to a bulk fertiliser storage shed at Lease Area OH6 for Nutrien to store its fertiliser product; and that FPA would provide services including maintenance and operations, cleaning, and the procurement and maintenance of licences.[14]
[14] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 14(e).
The term of UFC Handling Agreement was 21 years from the 'Effective Date' (that is, 21 years from 30 November 2002).[15] Mr Duperouzel deposed to the basis for his belief that the term of the UFC Handling Agreement had been varied by agreement to 30 April 2024.[16]
[15] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 11 - 14, AD-4 ‑ AD-6.
[16] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 15.

There was also evidence before the court as to communications as between FPA and Nutrien in March 2023 as to the status of the 'Materials Handling Agreement - Into Storage', and the need to progress a new 'Operating Agreement'.[17] Nutrien and FPA were parties to an agreement titled the 'Kwinana Bulk Jetty Materials Handling Agreement - Into Storage' dated 11 December 2023, which commenced on 11 December 2023 and was to continue in effect until 11.59 pm on 30 April 2024.[18]

The equipment and Nutrien's operations at Lease Area OH6, and the impact of the fire on 9 February 2024

[17] Affidavit of JA Allardice affirmed on 24 April 2024, JA-04.

[18] Affidavit of AJ Duperouzel sworn on 25 April 2024, par 7, AD-54.

There is significant infrastructure at Lease Area OH6. Prior to 9 February 2024 the infrastructure was comprised of a large storage shed, also known as the Kwinana Fertiliser Facility, which included production batch mixing processes with two truck loading lines; a purpose‑built blending system with a design capacity of 180 tonnes per hour, and various steel hoppers, each capable of holding six to nine tonnes; a transfer belt around 25 metres in length; an above ground conveyor which enters the large storage shed on the west side; a smaller shed used for coating and compaction processes; nine groundwater monitoring wells (with two additional wells also located off‑site); a bulka bag storage area; a truck parking area; an on‑site office; an above-ground diesel storage tank; a lined stormwater pond; an un‑lined stormwater pond containing a permeable reactive barrier comprised of spongolite; and zeolite mixed with red mud.[19]
[19] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 16.
The transfer belt and conveyor belt referred to above were destroyed in a major fire that occurred on 9 February 2024.[20]

The fire on 9 February 2024

[20] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 17.

At par 39 of his first affidavit, Mr Duperouzel deposed that a fire occurred on 9 February 2024, and to the best of his knowledge, the fire originated offsite and travelled onto Lease Area OH6 via the conveyor system and into the warehouse, causing damage to the timber purlins, the northern section of the roof of the main storage shed leased by Nutrien, as well as the interchange tower from the conveyor system (known as 'Tower 4'), the conveyor system and gantry. Mr Duperouzel further deposed that the fire broke out on the conveyor, which was the property and responsibility of FPA.[21]
[21] Affidavit of AJ Duperouzel sworn on 25 April 2024, par 9.
By WHS Alert 153 issued by FPA on 12 February 2024, an exclusion zone was implemented by FPA which included part of the shed in which Nutrien stored large stockpiles of its fertiliser.[22] Following receipt of WHS Alert 153, and subject to the guidance and direction given by FPA, Nutrien returned to the shed and resumed modified operations on or around 14 February 2024.[23]
[22] Affidavit of RE Dovison sworn 25 April 2024, pars 8 - 9, RD-1.
[23] Affidavit of RE Dovison sworn 25 April 2024, par 10.
As the Head of Safety and Risk for the Nutrien business, Mr Dovison deposed to having worked with Mr Duperouzel, site management and others to ensure that Nutrien conducted its own safety assessments, but also followed FPA's exclusion zone and guidance. He further deposed that in February 2024 he redirected a Nutrien Safety Health and Environment Manager, Mr Stephen Doody, to be a full time dedicated safety officer at Lease Area OH6.[24]
[24] Affidavit of RE Dovison sworn 25 April 2024, pars 11 - 12.
At pars 18 to 20 of his first affidavit, Mr Duperouzel described Nutrien's storage and blending operations at Lease Area OH6, and how raw product was offloaded and transported before and after the fire on 9 February 2024.
Mr Dovison deposed that in order to comply with FPA's exclusion zone and risk management guidance and directions, Nutrien acquired a specialist 'Mine Quality Enclosed Excavator' to be located full time at Lease Area OH6 to work on removing the stockpiles from within the exclusion zone, and moving them to the other part of the shed outside of that zone.[25]
[25] Affidavit of RE Dovison sworn 25 April 2024, par 13.
Specialist consultants were also engaged by Nutrien to review the situation and make recommendations as to how operations could safely continue in the shed after the fire. Mr Dovison deposed that these consultants (RSA) prepared reports and recommendations as to how the operations and any demolition works for the damaged roof could be safely conducted, which he shared with FPA. He further deposed that up to the date of his affidavit, no one from FPA had raised with Mr Dovison any concern regarding the reports or commented upon the recommendations.[26]
[26] Affidavit of RE Dovison sworn 25 April 2024, par 14.
Mr Dovison deposed to his belief that the Western Australian Department of Water and Environmental Regulation (DWER) had been made aware of the fire, and the impact of the fire on Lease Area OH6 and Nutrien's operations. Mr Dovison deposed that he was not aware of DWER having raised any concern with Nutrien's continued operations from the shed on Lease Area OH6.[27] Mr Dovison also deposed to the steps that Nutrien continued to take to actively manage the safety requirements and risks of water contamination from its continued operations.[28]
[27] Affidavit of RE Dovison sworn 25 April 2024, par 16.
[28] Affidavit of RE Dovison sworn 25 April 2024, par 20.
At pars 21 to 23 of his first affidavit, Mr Duperouzel deposed that the majority of the equipment at Lease Area OH6 was custom built or modified for Nutrien's operations. I accepted that there was significant scale and complexity to Nutrien's operations and processes at Lease Area OH6.
At pars 24 to 29 of his first affidavit, Mr Duperouzel described the blending system at Lease Area OH6 prior to the fire on 9 February 2024. At pars 30 to 31, he described the complexity of the site and equipment, which he deposed would require significant time and effort to relocate.
Mr Duperouzel deposed that since the fire, Nutrien has had to utilise backup storage facilities in Henderson, Australian Wool Handlers, a Coogee chemicals facility and in Albany. He observed that different products have different backup storage facilities, and that Nutrien was unable to blend at any of these other storage facilities as it did not have the necessary infrastructure, specialised systems and customised equipment or licences necessary to blend there.[29]
[29] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 41.
As to FPA's position, Mr Allardice deposed that repairing the shed or demolishing and rebuilding it was uneconomical, and does not meet FPA's future strategic objectives to develop the area to be efficient common user infrastructure.[30]
[30] Affidavit of JA Allardice affirmed on 24 April 2024, par 19.
Further, there was evidence before the court that FPA had received a draft memorandum prepared by Aurecon Australiasia Pty Ltd dated 12 March 2024, which recorded that Aurecon had been appointed by FPA to provide an order of magnitude cost and time estimate to strengthen (brace) the southern section of the fertilizer shed; that Aurecon's previous findings had shown that the southern shed required installation of a lateral bracing system to ensure the lateral deflection of the shed was within limit and no structural components would be overstressed, and strengthening of the roof beams; a high level strengthening option had been developed for pricing purpose; and a cost estimate was developed which assumed a project duration of six months, allowing for contractor mobilisation, 12 weeks fabrication and 15 weeks construction on site; and the draft cost estimate for that option was over $6.9 million.[31]

The operational significance of the Lease to Nutrien

[31] Affidavit of HC van Aswegen sworn 26 April 2024, HVA-1.

Mr Duperouzel deposed to the operational significance of the Lease to Nutrien in his first affidavit, and I did not understand there to be any controversy in that regard.
There was evidence before the court that Nutrien dispatches over 350 variations of fertiliser in Western Australia, and it holds an estimated 20% of the market share in Western Australia for fertiliser. Lease Area OH6 is by far the biggest operational site for Nutrien in Western Australia. 55% of bulk dry fertiliser provided by Nutrien in Western Australia in 2023 came through Lease Area OH6, the other 45% came from all other ports where Nutrien operates. Similarly, Nutrien's forecasts for 2024 had 54% of the bulk dry fertiliser provided by Nutrien coming through Lease Area OH6.[32]
[32] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 33, 42 and 43.
Nor did I understand it to be controversial that:[33]
(a)Lease Area OH6 has served as a central hub for Nutrien's servicing of customers across Western Australia, including cropping areas such as the Central Wheat Belt, the Great Southern, the Upper Great Southern, Midwest and South West;
(b)the other ports where Nutrien operates (Albany, Geraldton and Esperance) do not have the storage capacity to store the fertiliser product that comes into Lease Area OH6, and it can be uneconomical and impractical for growers within these catchment areas to source fertiliser from other Nutrien depots at ports;
(c)Nutrien provides bulk fertiliser to Bunbury (South West) and York (Central Wheat Belt) from Lease Area OH6 to service customers in these areas. Almost all of the product dispatched from these sites are from Lease Area OH6;
(d)Nutrien primarily caters to the bulk distribution of fertiliser, with trucking services arranged by customers themselves or through carrier services located in rural towns near Lease Area OH6; and
(e)bulk fertiliser deliveries are directly transported to farms. Some larger agricultural enterprises have purpose-built sheds that are capable of storing their seasonal fertiliser requirements. However, the majority of farms in the region serviced by Nutrien (at least 90%) do not have the capacity to store all their fertiliser needs for an entire season. This means that incremental deliveries from Lease Area OH6 are required throughout the planting season, with corresponding incremental payments made by these customers to Nutrien.

Communications as between Nutrien and FPA prior to the fire

[33] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 34 - 38.

In his first affidavit, Mr Duperouzel described communications and meetings attended by representatives of Nutrien and FPA from June 2019 to 19 April 2024.[34] Through the first affidavit of Mr Duperouzel, together with the affidavit of Mr Williams, the affidavit of Mr Allardice and the second affidavit of Mr Duperouzel, the court had before it considerable evidence of the communications that passed between Nutrien and FPA in the period leading up to the expiry of the term of the Lease.
[34] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 45 - 114.
Summarised here are some of the communications that passed between the parties. The summary below is not intended to comprehensively restate all of the evidence before the court.
Mr Duperouzel deposed that from about June 2019 to about September 2023, the predecessors to Nutrien and then Nutrien (both directly and through its parent company Nutrien Ag Solutions Ltd, which was known as Landmark Operations Limited until 3 March 2020) and FPA were negotiating the terms of a new lease term, so that Nutrien would continue to lease Lease Area OH6 from FPA beyond 30 April 2024. He deposed to having been personally and directly involved in the negotiations. He also noted that Nutrien had also engaged Matthew Hopkins of Savills, a real estate advisory firm,[35] and that on 14 March 2022, FPA was advised that Mr Hopkins, State Director of Savills, was to take over the negotiations for the renewal of the Lease on behalf of Nutrien.[36]
[35] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 44.
[36] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 55.
A review of the communications reveals that clarity was sought on behalf of Nutrien with respect to it remaining as lessee of Lease Area OH6 after April 2024 on numerous occasions from June 2019, and that calls for clarity and certainty were made with increased alarm over time.
In June 2019, Nutrien (then known as Landmark) articulated its desire for a minimum 10 year lease from the end of the Lease; and at a meeting on 20 June 2019 it was represented on behalf of FPA to Nutrien that:[37]
•we are about to commence a Master Plan Strategy for the Kwinana Bulk Jetty area. This project will commence by 30 June 2019 and we envisage it will be finalised within a 3 month period;
•Following the Master Plan a leasing strategy should be completed about a month after the Master Plan;
•FPA to feedback to Landmark by end of 2019 on the proposed development, lease extension and clarification of FPA's view on whether the assets would be tenant owned of FPA owned assets and how these are to be treated in any new agreement;
…
•Al - FPA to provide updates to Landmark as the Master Plan Strategy develops; and
•The Document matrix would need to be resolved, likely to be a lease agreement and operating agreement.
[37] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 45, AD-9.
At a meeting on 4 December 2020, among other things, the possible extension to the lease arrangement was discussed, with Nutrien requesting clarity as to FPA's position. The request for clarity was again requested on behalf of Nutrien on 21 January 2021, and Nutrien was informed that FPA 'have discussed internally and will prioritise a response to you ASAP'.[38]
[38] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 47, AD-11.
Mr Duperouzel deposed that through an email communication sent on 3 March 2021, Nutrien was informed that FPA was working through the potential issues and opportunities with respect to an extension of the Lease 'as a priority'.[39] In June 2021, Savills provided a variation of lease proposal to FPA, which among other things contemplated a 12 year term commencing on 1 July 2021, with one ten year option.[40]
[39] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 48, AD-12.
[40] Affidavit of JA Allardice affirmed on 24 April 2024, JA-01.
There is evidence of Nutrien having communicated to FPA in late 2021 the urgency of the situation, 'with timing for an agreement with [FPA] now critical to enable a Nutrien to make commercial investment decisions around its assets at the port.'[41]
[41] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 50, AD-13.
In late 2021, Nutrien pressed for a 12 year lease, which would allow for a two year period to plan and develop the facility, with a ten year extension option and a break clause if FPA was to need the land for port development.[42] On 7 November 2021, in response to the requests received from Nutrien, Mr Michael Parker (the then Chief Executive Officer of FPA) informed Nutrien that he and Mr Gavin Bignell (FPA's General Manager Ports Operations), would stay 'close to this'.[43]
[42] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-13.
[43] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-13.
In an email communication sent by Mr Duperouzel on 25 February 2022 to Mr Parker, copied to others, Mr Duperouzel referred to a meeting that he had attended with Mr Parker on 24 February 2022. Among other things, Mr Duperouzel in his email recorded as follows:[44]
I appreciate your commitment to an open and transparent process, as well as your understanding of the protracted journey we have had to try and get this lease finalised over the past 12 or more months. It was heartening to understand your commitment that a protracted six-month process from here was not acceptable and that this could be finalised much sooner, prior to the end of Q2 this year, with in principle agreement by the end of March.
In principle agreement by the end of March will enable us to undertake the necessary work to move towards a significant investment in the facility.
I look forward to receiving the draft documents by the end of next week so that we can proceed at pace.
[44] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-15.
By a letter dated 4 March 2022 FPA informed Nutrien of its preferred option, being to work towards a model whereby:[45]
a) The lease of the shed and associated improvements are extended for a period of ten years;
b) Fremantle Ports is responsible for the maintenance of the shed, associated land side improvements and other equipment (including the common use sections of the conveyor belt and towers, and the Siwertell), with a maintenance program and cost recoupment model being developed. The costs would be estimated annually, and actual costs invoiced to Nutrien quarterly; and
c) Nutrien engages a third party to provide stevedoring and other labour, including shed handling services.
[45] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 54, AD-16.
FPA in that communication described the current and indicative rates which would apply under the proposed model, and noted as follows:[46]
We look forward to progressing this discussion together, and if through the process it becomes apparent that it is not viable for either party, then we are open to exploring other alternatives.
[46] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 54, AD-16 (page 358 of the affidavit).
Lease proposals were exchanged as between FPA and Nutrien in March to September 2022, and alternatives promoted.[47] Mr Duperouzel's evidence was to the effect that by 9 September 2022, the position of FPA was expressed to be that it was only willing to agree to one four year option for the lease extension, as it needed to preserve its ability to redevelop the premises, and that there would be no holding over period; and that it required a market valuation for rent effective from 1 May 2024.[48]
[47] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 57 - 61, AD-16 - AD-21; affidavit of JA Allardice affirmed on 24 April 2024, JA-02.
[48] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 62.
By an email communication sent on 9 September 2022, Nutrien was provided with a 'High Level Terms Tracking Schedule for the landside lease and services agreement'; and a 'rates and charges estimate for the shed/land, the Siwertell, conveyors and towers'.[49] By that communication, Nutrien was also informed as follows:[50]
[49] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-22 (page 390 of affidavit).
[50] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-22 (page 390 of affidavit).
Assuming we can reach agreement on the terms, then we will prepare:
• a Deed of Variation and Option extending the lease for the period 2024 to 2028; and
• a separate Port Services Agreement under which Nutrien will reimburse Fremantle Ports for a proportion of the operating and maintenance costs associated with the Siwertell, conveyors and towers.
Please note that Fremantle Ports would also need to enter two additional agreements with the stevedores which Nutrien contracts with, namely:
•a Training Services Agreements under which Fremantle Ports trains the stevedores to operate the Siwertell; and
• a Use of the Continuous Ship Unloader Kwinana Bulk Jetty Agreement.
A negotiation schedule was annexed to that communication and formed part of annexure AD‑22 to Mr Duperouzel's first affidavit. Among other things, in the negotiation schedule it was recorded against the item titled 'Lease Term' that Nutrien proposed that the 'Existing lease continues until April 2024', to which FPA's recorded response was:[51]
Agreed, lease will expire 30 April 2024.
[51] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-22 (page 392 of affidavit).

In the same document against the item titled 'Option', it was recorded that Nutrien proposed a '2 x 4 year options', whereas it was recorded that it was FPA's position that the 'Option' ought:[52]
Remain at 1 x 4 year option, commencing 1 May 2024. Fremantle Ports needs to preserve its ability to redevelop KBJ and the shed is on land which would be essential to any redevelopment during the option period. There will not be a holding over period.
[52] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-22 (page 392 of the affidavit).
At par 64 of his first affidavit, Mr Duperouzel deposed that on 19 September 2022, he and Rob Clayton (who at the time was Managing Director of Nutrien) met with Mr Parker at Mr Parker's office to discuss matters, which included the future of the lease and FPA's commitment to working with Nutrien in the future. Annexed to his affidavit and marked AD‑24 was a copy of an email exchange between Mr Duperouzel and Mr Parker between 20 and 25 October 2022, which included a summary of the meeting on 19 September 2022. The emails exchanged included Mr Duperouzel and Mr Parker's respective summaries of their discussion points as to the verbal commitments from FPA. Reproduced below is Mr Duperouzel's summary, followed by Mr Parker's. Mr Parker's summary is underlined for ease of reference:[53]
Complexities and timing uncertainties around building additional infrastructure at KBJ is why a 4 year term is on offer beyond our existing lease concluding April 2024. Yes. As discussed Fremantle Ports is currently progressing a number of business cases designed to address the current capacity constraints being experienced at KBJ. These include the potential expansion of berth facilities at KBJ, the need to resolve the interaction between KBJ and Woodside's potential project at Ward Road Jetty, the potential construction of a new jetty at Kwinana Bulk Terminal and the potential re-allocation of cargo between these facilities. All these considerations are being incorporated into a master plan being developed by Fremantle Ports. Good planning will provide greater certainty for Nutrien for the long term.
In a worst case scenario, the 2 year break clause has been included. It is not FPA intention to instigate this. A mutual two-year break clause has been proposed to allow both parties to manage their risks. There is currently no intention of FPA to instigate this however this may be subject to change dependent on the outcome of the above business cases.
FPA will instigate regular communication updates (qtly) to facilitate timely updates on status on KBJ. Our team has been in frequent contact with Nutrien's consultants, and we will continue to engage regularly with you as our option studies progress.
FPA commit to working closely with NAS in the event there is a need for us to vacate the existing site including assisting in finding a suitable site in advance of the 2028 expiry. We will of course work closely with NAS if there is a need to vacate the existing site. Given the limited land available at KBJ, we believe Nutrien is best placed to secure land for its future operations.
I hope we have interpreted our conversation correctly. If anything differs, please let me know.
On a final note, I had a conversation with Matt Hopkins of Savills who has yet to field a response from FPA on his email dated 30 September 2022 regarding our lease renewal. Our team responded late last week, and in subsequent exchanges, we understand the only remaining substantive issues are timing of Market Reviews and terms relating to the 'Make Good'. I have requested that our team address these as a high priority.
…
(Underline added)
[53] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-24 (page 410 of the affidavit).
Mr Duperouzel also attached to his first affidavit an email communication from Mr Hopkins to Mr Mulhall dated 30 September 2022, by which Mr Hopkins advised that he had received approval from Nutrien to accept the majority of FPA's required changes in order to allow Nutrien and FPA to reach a final agreement.[54] The remaining items concerned the commencing rental, yielding up, redevelopment, and non-routine maintenance. (I noted that the remaining items did not include the term of the option.)
[54] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-23.
Negotiations concerning the remaining items continued into late 2022. FPA and Nutrien continued to use a negotiation schedule to record the status of their negotiations. As to the item titled 'Option', the negotiation schedule attached to the email chain between representatives of FPA and Nutrien from 28 October 2022 to 17 November 2022 recorded FPA's response as at 19 October 2022 in the following terms:[55]
BOTH PARTIES AGREE with [FPA] response 09/09/2022. We also confirm that the 24 month notice obligation on clause 5.3 will be removed and if the option is exercised the lease will end in 2028.
[55] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-25 (page 417 of the affidavit).
In November 2022, Nutrien was informed that FPA would instruct its solicitors to prepare a deed of variation.[56] In February 2023, Nutrien was among other things informed 'as an aside' that the preparation of a deed of variation and an access agreement were progressing.[57] In February 2022, Nutrien was sent a preliminary draft of a document titled 'deed of grant of option and variation of lease Lease Area OH6 Kwinana Bulk Jetty, Kwinana'. In summary, the deed documented the grant of an option of renewal in favour of Nutrien, by which the Lease would be renewed for the 'Further Term', and otherwise on the covenants, terms and conditions of the Lease as varied by that deed.[58] The 'Further Term' was defined as four years.
[56] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 69, AD-25 (page 412 of the affidavit).
[57] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 70, AD-26 (page 426 of the affidavit).
[58] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 71, AD-27 (Recitals, page 434 of the affidavit).
Communications were exchanged between the parties with respect to the two agreements, and on 5 May 2023, FPA informed Nutrien that 'given the interplay between the Lease and Access agreement, we would rather conclude them in parallel'.[59] The communications were marked by frustration on the part of Nutrien. In an email communication sent on 12 July 2023, an update as to timing was pressed on behalf of Nutrien in the following terms:[60]
Further to your below email and our various discussions since, can you please provide an update on timing for issue of the new agreements.
My client would like to note that this matter has now been under discussion for over two years, we had a general agreement on the headline terms in mid-Nov 2022, and the subsequent Deed of Grant of Option and Variation of Lease was returned to you on 23rd Feb 2023 (with mark-ups). My client is understandably frustrated by the ongoing delay and would like some firm timelines to be offered in your response.
[59] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 75(c), AD-31 (page 482 of the affidavit).
[60] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 75(d), AD-31 (page 481 of the affidavit).
A further draft of the deed of grant of option and variation of lease was provided to Nutrien on 21 July 2023. Among other things, the email communication by which the deed was sent to Nutrien recorded as follows:[61]
In relation to the Port Access Agreement, we are very close and were expecting to be able to provide it this week, our final testing of the document identified a couple of issues that need to be tidied up and we will have that deed to you as soon as possible.
As noted previously, the two documents are dependent on each other and we reserve the right to make changes to the documents, which are still subject to Board approval.
[61] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-33 (page 573 of the affidavit).
By an email communication sent to FPA on 21 August 2023, Nutrien advised that subject to formal Nutrien approval, the deed of grant of option and variation of lease was now in an agreed form save as to the yielding up provisions.[62] Nutrien's preferred position as to the yielding up provisions was not accepted by FPA, and Nutrien was advised of the same on 4 September 2023.[63]
[62] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 78, AD-33 (page 572 of the affidavit).
[63] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 78, AD-33 (page 571 of the affidavit).
Further communications were exchanged between the parties, and the access agreement was the subject of review and comment up to at least 29 January 2024.[64]

Communications as between Nutrien and FPA after the fire

[64] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 79 - 86, AD-35 - AD-39; affidavit of JA Allardice affirmed on 24 April 2024, JA-05 - JA-07.

The affidavit evidence suggests that the focus of Nutrien and FPA after the fire until late March 2024 was the fire damage and the actions necessary for Nutrien to recommence operations from Lease Area OH6.[65]
[65] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 87 - 94.
On 23 February 2024, a letter was sent to FPA on behalf of Nutrien concerning the impact of the fire upon the Lease and Lease Area OH6, by which Nutrien, among other things, called for FPA to expedite the repairs to the Storage Facility (as defined in the Lease), on Lease Area OH6 to minimise Nutrien's loss; and reserved its rights in respect of the Lease, any rent paid or payable, and the loss and damage sustained as a result of the fire.[66]
[66] Affidavit of AJ Duperouzel sworn on 25 April 2024, pars 10 - 11, AD-55.
Mr Duperouzel deposed that on 28 March 2024, he spoke with Mr Allardice who said among other things, words to the effect that Nutrien would shortly receive a letter from the FPA's solicitors about not extending the Lease, but that the FPA was willing to work with Nutrien for the upcoming season, and that they understood Nutrien's desire to continue using the blending area as well as building possible igloo shelters over the blending area.[67]

Formal notice issued 28 March 2024

[67] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 95, AD-43.

On 28 March 2024, Nutrien received a letter from FPA titled 'Nutrien AG Solutions Fertiliser Pty Ltd ("Nutrien") - Formal Notice from the Fremantle Port Authority as lessor confirming the expiry and termination of Nutrien's leasehold rights at Kwinana Bulk Jetty with no holding over permitted'.[68] Among other things, the following was communicated by the letter:
Fremantle Port Authority hereby gives formal notice to Nutrien as follows:
(a) the KBJ Lease term will expire on 30 April 2024 (Lease Expiration) and Nutrien will not be entitled to occupy, use or retain possession of any part of the KBJ Lease premises after Lease Expiration;
(b) after Lease Expiration, Nutrien will not be entitled to any holding over in relation to the KBJ Lease premises pursuant to clause 5.3 of the Original Lease or otherwise; and
(c) Nutrien must comply with all of its obligations under clauses 3.16(a) and (b) of the Original Lease (Yielding Up Obligations).
If Nutrien wishes to visit the KBJ Lease premises at any time after Lease Expiration in order to comply with its Yielding Up Obligations, or otherwise, it will only be entitled to do so if Fremantle Ports grants Nutrien a contractual licence on a visit by visit basis (Premises Visit Licences) and Fremantle Ports has an absolute discretion as to whether or not to grant Premises Visit Licences and in regard to the terms and conditions it imposes in relation to Premises Visit Licences on a visit-request by visit-request basis.
[68] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 96, AD-44.
Among other things, Mr Duperouzel deposed that:[69]
At no time in those negotiations had the FPA said anything about Nutrien vacating the Premises from 30 April 2024 and the negotiations had proceeded entirely on the basis that Nutrien was to remain in the Premises. The principal issue was, initially, the length of time that Nutrien would remain in the Premises, which was resolved with the agreement in September 2022, that it would stay for 4 years, unless it was given 2 years notice. By September 2023, our understanding and assumption was that all of the terms of the further lease extension had been agreed.
[69] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 101.
Whether and the basis upon which Nutrien might be permitted by FPA to remain in occupation of Lease Area OH6 from 1 May 2024 was the subject of correspondence passing between FPA and Nutrien's legal representatives from 5 April 2024, on a 'without prejudice' and on an 'open' basis. Agreement was not reached as to a standstill agreement, the provision of undertakings, or otherwise.
In the course of the negotiations that followed the fire, FPA proposed new lease terms as a basis upon which Nutrien might remain in occupation of Lease Area OH6 for a period of two years.[70] Clause 3.2 of the proposed new lease concerned 'Barred Claims' and provide as follows:
3.2 Barred Claims
(a) As a fundamental part of the consideration for Fremantle Ports agreeing to enter into this deed, the Lessee hereby unconditionally and irrevocably promises that neither it nor any of its Affiliates will ever make a Claim of any kind whatsoever against Fremantle Ports or any of Fremantle Ports' Associates for or in relation to any Loss of any kind or any nature whatsoever that the Lessee or any of its Affiliates suffered, may have suffered or may suffer at any time in the future as a consequence of anything arising out of or relating to the Fire (Barred Claims).
(b) Clause 3.2(a) is intended to provide Fremantle Ports and each of its Associates with absolute and complete defences to any Claims that the Lessee or any of its Affiliates may have against Fremantle Ports at law or in equity in relation any Barred Claims and the defences are available to Fremantle Ports and each of its Associates as complete defences and absolute bars to any Claims that the Lessee or any of its Affiliates makes in relation to any the Barred Claim including Claims in negligence or any other tort and Claims pursuant to any other cause of action available to the Lessee or any of its Affiliates at law or in equity.
[70] Affidavit of SJ Williams affirmed 24 April 2024, par 5, SJW-2.
The proposed new lease terms were not acceptable to Nutrien. As to the releases sought from Nutrien with respect to the fire, among other things, Mr Dovison deposed that in his role, he was also responsible for dealing with Nutrien's brokers and insurers; he had put Nutrien's broker/insurance company on notice of the fire and the damage to the shed, the interruptions to Nutrien's business and the costs incurred; he understood that Nutrien's insurers had engaged their own consultants to look at the cause of the fire and, from his dealings with FPA, he was aware that FPA had engaged its insurers, who were looking into the cause and source of the fire; and he had not received any report or notice from FPA or any party as to these investigations. Further, Mr Dovison deposed that Nutrien had been advised by its insurers that Nutrien could not give any release or indemnity in respect of costs or losses associated with the fire at the Kwinana Bulk Cargo Jetty.[71]

Impact on Nutrien's business if required to vacate

[71] Affidavit of RE Dovison sworn 25 April 2024, pars 21 - 23.

Mr Duperouzel deposed that Nutrien has committed to a future shipment plan to July 2024 (that is, the majority of the 2024 season) via the Kwinana Bulk Handling Jetty.[72]
[72] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 130.
Mr Duperouzel further deposed that if Nutrien was required to source and move to an alternative site, Nutrien's ability to continue operations so as to service customers' bulk dry fertiliser needs during this two-year period would be severely impacted. Such an outcome would result in significant financial losses to Nutrien and also severe disruption to its customers and the Western Australia fertiliser market more broadly.[73] I accepted that there would be a significant impact on Nutrien's earnings and revenue earnings.

Impact on agricultural productivity

[73] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 122.

At par 135 of his first affidavit, Mr Duperouzel deposed that Nutrien's operations at Lease Area OH6 accounts for a significant portion of Nutrien's fertiliser business, being approximately 20% of the market share in Western Australia for bulk fertiliser. He further deposed to his belief that:[74]
… the substantial reduction in supply that would be caused by Nutrien being required to vacate [Lease Area OH6] would have significant flow on effects on farmers and would lead to disruptions in agricultural productivity in the region. I have seen the statistics published by the Western Australia grain industry (GIWA), and I estimate that approximately 1.6 million hectares of Western Australian farmland would be impacted this year if Nutrien were required to vacate the Premises and stop supply of fertiliser to our customers. Our fertiliser products are critical to these farmers and their cropping programs, and such volume cannot be easily sourced from alternative sources at short notice.
I believe if Nutrien were unable to meet the demand of its customers as a result of not being able to operate and blend at [Lease Area OH6], this would severely disrupt the market for fertiliser in Western Australia, and alternate suppliers would not be able to meet the increased demand this would cause. I believe this would impact the livelihood of farmers and increase the costs passed on to ultimate consumers.
[74] Affidavit of AJ Duperouzel sworn on 22 April 2024, pars 135 - 136.

An overview of the parties' contentions

Nutrien's contentions

Nutrien contends that commencing in around June 2019, it and FPA engaged in discussions about an extension of the term of the Lease, the detail of which was deposed to by Mr Duperouzel in his first affidavit. Nutrien pleaded at pars 9 to 14 of its statement of claim material facts concerning the negotiations for a new or extended lease. In the written outline of submissions filed in support of the application, Nutrien submitted that for present purposes, it was sufficient to record the following matters:[75]
[75] Nutrien's submissions filed on 22 April 2024, par 11.
(a) In June 2019, Nutrien advised FPA that it wished to enter into a new lease of [Lease Area OH6] for a minimum term of 10 years following the expiration of the Lease.
(b) Further discussions followed from late 2020 to early 2022.
(c) In May 2022, FPA proposed a lease structure involving, among other things, an option to extend the Lease for a term of four years terminable on two years' notice.
(d) On 9 September 2022, Mr Sean Mulhall (FPA) met with Mr Matthew Hopkins (a director of Savills Australia who had been engaged to assist Nutrien in its discussions with FPA about the extension of the Lease). During that meeting, Mr Mulhall stated that FPA was only prepared to offer an option to extend the Lease for four years as it wished to preserve its ability to re‑develop the Jetty.
(e) On 19 September 2022, Mr Andrew Duperouzel and Mr Robert Clayton (both of Nutrien) met with Mr Michael Parker (FPA's chief executive officer). Mr Parker confirmed that FPA was prepared to extend the Lease, but only by a four year option. Mr Parker also stated that FPA would work closely with Nutrien in the event that Nutrien were required to vacate [Lease Area OH6] at the end of the extended term in 2028.
(f) In a subsequent email to Mr Duperouzel, Mr Parker wrote that he hoped that the discussion at the meeting on 19 September 2022 had allayed some of Nutrien's concerns as to the future of the Lease.
(g) On 30 September 2022, Nutrien agreed to FPA's proposed four year option. This was reflected in a 'Negotiation Schedule' circulated by FPA in October 2022.
(h) Between February and September 2023, Nutrien and FPA engaged in negotiations on the detailed terms of a deed of grant of option and variation of lease.
(i) The negotiations focussed on Nutrien's yielding up obligations upon the expiration of the extended term of the Lease. But, importantly, the negotiations did not revisit the agreement that Nutrien would be granted the four year option.
(j) Since September 2023, the parties have proceeded on the basis that the detailed terms of a deed of grant of option and variation of lease have been finalised and agreed. Since around then, the parties have focussed on negotiating the terms of a 'Port Access and Services Agreement' (to replace the existing Handling Agreement) and not revisited the terms of the option deed. Indeed, as recently as January 2024, FPA did not cavil with the statement (made in an email from Mr Duperouzel to Mr Jamie Allardice of FPA) that the 'lease documents' had been finalised and were ready for signing by the parties. (footnotes omitted)

The discussions and communications described in Nutrien's submissions and reproduced above were cross‑referenced to Mr Duperouzel's first affidavit. In the course of the hearing, counsel for Nutrien took the court to parts of the first affidavit of Mr Duperouzel, and to various documents annexed to that affidavit, which Nutrien submitted establish key material facts, as pleaded.
Nutrien complained that on 28 March 2024, notwithstanding the matters described at [91] above, FPA purported to give Nutrien notice that the Lease would expire on 30 April 2024 and Nutrien would not be entitled to occupy, use or retain possession of any part of Lease Area OH6 after the expiration of the Lease; after the expiration of the Lease, Nutrien would not be entitled to any holding over in relation to Lease Area OH6 pursuant to cl 5.3 of the Lease or otherwise; and Nutrien would be obliged to comply with its yielding up obligations under cl 3.16 of the Lease.
Nutrien also complained that since that time, FPA has continued to assert that Nutrien is not entitled to remain in possession of Lease Area OH6 following the expiration of the Lease on 30 April 2024. Further, Nutrien complained that if it was required to vacate Lease Area OH6 on 30 April 2024, it would suffer significant harm.
On behalf of Nutrien it was submitted that, on the evidence, there is a (strong) prima facie case that FPA is subject to an equitable estoppel. It was submitted on behalf of Nutrien that the estoppel arose in the following circumstances:[76]
[76] Nutrien's submissions filed on 22 April 2024, par 26 (footnotes omitted).
(a) Since no later than September 2022 until 28 March 2024, FPA, through its conduct in the course of the discussions about the extension of the Lease, encouraged or induced Nutrien to adopt one or more of the below assumptions:
(i) FPA had agreed to, and would, provide Nutrien with the Extended Term;
(ii) FPA would negotiate with Nutrien, in good faith, to agree the terms of the Formal Agreement and would execute the Formal Agreement once agreed; and
(iii) FPA would not require Nutrien to surrender or yield up the Land immediately following the expiration of the original term of the Lease on 30 April 2024.
(b) In reliance on each of these assumptions, Nutrien changed its position in that Nutrien:
(i) refrained from securing alternative premises for its operations; and
(ii) committed to receiving future shipments of fertiliser products at the Jetty including in the period after the expiration of the original term of the Lease.
(c) If FPA were to depart from the assumptions and require Nutrien to vacate the Land upon the expiration of the original term of the Lease, Nutrien will suffer detriment.
(d) This is because, on the evidence, the Lease is central to Nutrien's operations. ...
(e)Nutrien estimates that the financial impact on Nutrien of having to vacate the Land would include:
(i) in excess of $164 million in lost revenue per year; and
(ii) in excess of $19 million in negative impact to Nutrien's EBITDA per year.
The estimate of financial impact to Nutrien (described in the written submissions filed on behalf of Nutrien and reproduced above) was also cross-referenced to Mr Duperouzel's evidence in his first affidavit.
As to the pleading of promissory estoppel, it is appropriate to reproduce here the assumptions pleaded by Nutrien. At par 17 of the statement of claim, Nutrien pleads:
17. By reason of the matters pleaded in paragraphs 10 to 14 above, at all times from around September 2022 (at the latest) until 28 March 2024, FPA encouraged and/or induced Nutrien to assume that:
(a) FPA had agreed to, and would, provide Nutrien with the Extended Term;
(b) further or alternatively:
(i) FPA would negotiate with Nutrien, in good faith, to agree the terms of a written agreement to give legal effect to the Extended Term (Formal Agreement); and
(ii) FPA would execute the Formal Agreement once its terms had been agreed between the parties; and
(c) further, or alternatively, FPA would not require Nutrien to surrender and yield up possession of the Demised Land upon expiration of the term of the Lease on 30 April 2024.
At par 10(j) of the pleading, 'Extended Term' is defined as follows:
10.The Extension of Tenure was subsequently the subject of numerous communications between Nutrien and FPA, including as follows:
…
(j)by email dated 30 September 2022 to Mr Mulhall, Nutrien (through Mr Hopkins) informed FPA, amongst other things, that it agreed to a four year option to extend the term of the Lease with a two year break clause (that is, terminable on two years' notice) (Extended Term);
Counsel for Nutrien at the hearing of the application sought to clarify the proper reading of the plea, noting that: [77]
… it is not our case that Nutrien assumed that there would be a four‑year extension of the existing lease. The relevant assumption was that FPA had agreed and would provide an option to extend the term of the lease.
[77] ts 77 (26 April 2024).
As to the evidence which grounds the assumption, counsel particularly referred to two documents. The first was a negotiation schedule which formed part of annexure AD‑25 to Mr Duperouzel's first affidavit, which recorded against the item titled 'Option', among other things, FPA's response of 9 September 2022 and Nutrien's of 30 September 2022, which was as follows:[78]
Remain at 1 x 4 year option, commencing 1 May 2024. Fremantle Ports needs to preserve its ability to redevelop KBJ and the shed is on land which would be essential to any redevelopment during the option period. There will not be a holding over period.
[78] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-25 (page 417 of the affidavit).
In the same document, FPA's response of 19 October 2022 recorded against the item titled 'Option' was:
BOTH PARTIES AGREE with FP response 09/09/2022. We also confirm that the 24 month notice obligation in clause 5.3 will be removed and if the option is exercised the lease will end in 2028.
The second was a preliminary draft of the deed of grant of option and variation of lease between FPA, Nutrien as lessee and Nutrien Ag Solutions Limited as guarantor, which formed part of annexure AD‑27 to Mr Duperouzel's first affidavit, which recorded by way of recitals as follows:[79]
[79] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-27 (page 434 of the affidavit).
RECITALS:
A. Pursuant to the Lease, the Lessee is the tenant from FPA of the Demised Land for the Initial Term and at the Rent reserved by the Lease and subject to the covenants, terms and conditions of the Lease.
B. The Initial Term of the Lease expires by effluxion of time at midnight, 30 April 2024.
C. No further unexercised options to renew the Initial Term of the Lease have been granted in favour of the Lessee under the Lease.
D. The Lessee has applied to FPA to be granted by FPA, the benefit of a further option to renew the Initial Term for a further term of four (4) years ('the Further Term').
E. The parties have also agreed to vary the Lease on the terms and conditions contained in this Deed.
F. FPA has agreed to grant the Lessee an Option of Renewal to renew the Lease for the Further Term and otherwise on the covenants, terms and conditions of the Lease as varied by this Deed.
G. The Guarantor as evidenced by its execution of this Deed, has consented to the provisions of this Deed.
Nutrien further relied on a course of conduct on the part of FPA, which Nutrien said included FPA's silence with respect to requiring it to yield up Lease Area OH6 in the period prior to it issuing a formal notice on 28 March 2024.[80]
[80] ts 78 (26 April 2024).
As to the balance of convenience, it was submitted on behalf of Nutrien that given the apparent strength of Nutrien's case; the fact that the refusal of the injunction would have the practical effect of determining the claim against Nutrien; the significant detriment that Nutrien would suffer if required to vacate Lease Area OH6; and the lack of any apparent prejudice to FPA if the injunction were to be granted, the balance of convenience clearly favoured the grant of the injunction.[81]
[81] Nutrien's submissions filed on 22 April 2024, par 27.
It was further submitted that it was relevant that, on the evidence, if the injunction was refused and Nutrien was required to vacate Lease Area OH6 upon the expiration of the Lease on 30 April 2024, this would have adverse consequences for farmers in Western Australia who rely upon Nutrien to supply them with fertiliser products, which was a matter that further supported the grant of the injunction.
It was submitted that the court should grant an interlocutory injunction in the terms sought in Nutrien's chamber summons. Further, the court should make directions in terms of (or similar to) Nutrien's minute of proposed orders dated 22 April 2024, with a view to progressing the proceeding to trial on an expedited basis.

FPA's contentions

Careful and detailed submissions were made on behalf of FPA as to why it maintained that assumptions as pleaded could not give rise to a prima facie case. In summary, it was FPA's position that the assumptions pleaded on behalf of Nutrien were either not made out on the evidence, not relevant assumptions for the purposes of an estoppel, or both. To the extent that Nutrien held any assumption (other than that the parties were negotiating), it was FPA's position that such assumption was not induced by FPA. Further, FPA contended that having failed at the 'prima facie' case hurdle, Nutrien's submissions about balance of convenience could carry no weight.
As to the assumptions pleaded by Nutrien at par 17 of the statement of claim (reproduced at [97] above), FPA was critical of Nutrien's pleaded case, observing that the first and second assumptions as pleaded were factually inconsistent, and complained that Nutrien had been unable to articulate with any certainty the actual assumption that it said that it held.[82]
[82] FPA's submissions filed on 25 April 2024, par 21; ts 62 ‑ 64 (26 April 2024).
Counsel for FPA also observed that Australian courts have been reluctant to uphold claims of equitable estoppel in commercial settings, where parties with commensurate bargaining power are engaged in arm's length dealings regulated by express contractual provisions. Counsel submitted that it is self‑evident that, except for good reason, commercial parties do not usually conduct themselves in such a way as to forfeit their entitlement to exercise valuable legal rights, and in such a case it is necessary to scrutinise carefully the circumstances that are said to lead to the conclusion that it would be inequitable to permit a party to insist on its legal rights.[83]
[83] Seven Network (Operations) Ltd v Warburton (No 2) [2011] NSWSC 386 [46].
At par 27 of the written submissions filed on behalf of FPA, counsel referred to the statement by Brennan J in Walton Stores (Interstate) Ltd v Maher, reproduced below:[84]
Parties who are negotiating a contract may proceed in the expectation that the terms will be agreed and a contract made but, so long as both parties recognise that either party is at liberty to withdraw from the negotiations at any time before the contract is made, it cannot be unconscionable for one party to do so. Of course, the freedom to withdraw may be fettered or extinguished by agreement but, in the absence of agreement, either party ordinarily retains his freedom to withdraw. It is only if a party induces the other party to believe that he, the former party, is already bound and his freedom to withdraw has gone that it could be unconscionable for him subsequently to assert that he is legally free to withdraw.
[84] Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 423.
Counsel for FPA noted that the critical question is whether the conduct was such as to have induced an expectation affecting legal relations which was binding and enforceable. Further, to found an estoppel it is not sufficient to show that the plaintiff expected, as a matter of probability, that the defendant would not withdraw from the (expected) agreement. Further, it is not enough to hope or even to have a confident expectation that the defendant would eventually do the 'proper thing'.[85]
[85] FPA's submissions filed on 25 April 2025, par 28, referring to DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) (2011) 83 NSWLR 728 [57], citing Cobbe v Yeoman's Row Management Ltd [2008] 1 WLR 1752.
As to the balance of convenience, I note that FPA read the affidavit of Mr Allardice, who at pars 15 to 19 described the consequences of the fire on 9 February 2024.
While I noted that at par 17(b) and (c) Mr Allardice expressed his concern as to the operations that were ongoing in the fire damaged shed on Lease Area OH6, and the management of those operations in light of possible environmental impacts, Mr Allardice was not qualified to proffer an admissible opinion as to the safety and environmental impacts of the ongoing operations. I gave no weight to the unqualified concerns he expressed.
There was however admissible evidence before the court of FPA's position with respect to repairing the damage to the shed caused by the fire. I was cognisant that it was FPA's position that repairing the shed, or demolishing and rebuilding the shed was uneconomical, and did not meet FPA's future strategic objectives to develop the area to be efficient common user infrastructure.[86]
[86] Affidavit of JA Allardice affirmed on 24 April 2024, par 19.
Further, I accepted that FPA had received a draft memorandum prepared by Aurecon Australiasia Pty Ltd dated 12 March 2024, which recorded that Aurecon had been appointed by FPA to provide order of magnitude cost and time estimate to strengthen (brace) the southern section of the fertilizer shed; that Aurecon's previous findings had shown that the southern shed requires installation of a lateral bracing system to ensure the lateral deflection of the shed is within limit and no structural components will be overstressed, and strengthening of the roof beams; a high level strengthening option had been developed for pricing purpose; and a cost estimate had been developed which assumed a project duration of six months, allowing for contractor mobilisation, 12 weeks fabrication and 15 weeks construction on site; and the draft cost estimate for that option was over $6.9 million.[87]
[87] Affidavit of HC van Aswegen sworn 26 April 2024, HVA-1.
I also noted FPA's complaint that the formulation of the relief sought by Nutrien in its chamber summons, if granted, would not maintain the status quo. It was submitted that if the court were to grant the injunction in the terms sought, Nutrien would be permitted to remain on Lease Area OH6 on the terms of a 21‑year old (outdated) lease that might impose on the FPA obligations to repair a shed recently damaged by fire at a significant cost to the FPA, and despite it being inconsistent with the FPA's strategic plan. It was submitted that if compelled, those matters were matters of significant prejudice to FPA and would constitute a material alteration of the parties' rights.
It was also submitted that while not strictly a matter of 'balance' it was relevant that no workable orders could be made to enjoin FPA. While not pressed by way of interlocutory relief, FPA noted that the grant of an injunction to reflect Nutrien's claims (that is, compelling FPA and Nutrien to enter into a new lease agreement on terms to be agreed), would compel the FPA into a relationship with Nutrien with no certainty as to the rent payable, the term, who is obliged to carry ongoing obligations in terms of maintenance generally, stevedoring or any practical matters. It submitted that these matters were highly prejudicial to the FPA, and unworkable.[88]
[88] FPA's submissions filed on 25 April 2024, pars 41 - 42.

The principles to be applied to the grant of interlocutory injunctions

The general principles applicable to the exercise of the power to grant an interlocutory injunction were not in dispute. They were summarised by Newnes JA (with whom McLure P and Corboy J) agreed in Mineralogy Pty Ltd v Sino Iron Pty Ltd,[89] as follows:
The principles to be applied on an application for an interlocutory injunction are well-known and were not in dispute. The two main enquiries that arise are whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The first inquiry as to a 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks. The inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted. Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions. (citations omitted)
[89] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87]. See also Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76; (2017) 55 WAR 36 [131].
In practice the notion that a plaintiff must show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo is expressed compendiously by asking the question: is there a serious question to be tried?[90]
[90] Australian Broadcasting Corporation v O'Neil [2006] HCA 46; (2006) 227 CLR 57 [70]; Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] ‑ [13].
It was common ground that normally the court does not undertake a preliminary trial or attempt a forecast of the ultimate result. Nor is an application for an interlocutory injunction an occasion to determine contested questions of fact and conflict in affidavit evidence.[91]
[91] Warner-Lambert Company LLC v Apotex Pty Ltd [2014] FCAFC 59; (2014) 311 ALR 632 [72], [91]; Emeco International Pty Ltd v O'Shea [2012] WASC 282 [24].
The sufficiency and strength of the applicant's case must be judged on the evidence it has adduced, and the question is whether there is a probability that the applicant will be entitled to relief at trial 'if the evidence remains as it is'.[92] The extent to which the court will consider the merits of disputes as to legal issues will depend on the circumstances of the case. There is no inflexible rule in this regard.
[92] Australian Broadcasting Corporation v O'Neill [65]; Warner‑Lambert Company LLC v Apotex Pty Ltd [69].
There are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically 'the balance of the risk of doing an injustice') it is desirable for the court to evaluate the strength of the plaintiff's case for final relief. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue.[93]
[93] Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533, 536.
As was observed by Tottle J in Talent Konnects Pty Ltd v Marvelli, in assessing whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted (in other words assessing where the risk of an injustice lies), the court will consider whether the grant or refusal of an injunction will have the practical effect of determining the claim either for or against the plaintiff.[94]
[94] Talent Konnects Pty Ltd v Marvelli [2022] WASC 128 [50], citing Kolback Securities Ltd v Epoch Mining NL.

When equity's jurisdiction is involved in an application for an interlocutory injunction, it is necessary to identify the legal or equitable rights which are said to be determined at trial and in respect of which final relief is sought. The power to grant an interlocutory injunction is not to be exercised by reference to unconstrained notions of what appears to be just; it must be exercised by reference to the rights claimed by the applicant in the proceeding.[95]
[95] Sino Iron Pty Ltd v Mineralogy [No 2] [130] citing Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 [32]; as cited by Forrester J in Nutrien AG Solutions Ltd v Pingrup Traders Pty Ltd [2022] WASC 251 [52].
Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused.[96]
[96] Kolback Securities Ltd v Epoch Mining (536) (and the cases there cited).
I also proceeded on the basis that the requisite strength of the prima facie case and the balance of convenience were not independent considerations. The more the balance of convenience supports the respondent, and the more serious the consequences for a respondent, the stronger will be the prima facie case the applicant may need to establish to support an interlocutory injunction. Conversely, in a case where the balance of convenience strongly favours the applicant, then the strength of the prima facie case required to support the interlocutory injunction diminishes.

The principles to be applied in an equitable promissory estoppel case

The principles applicable to equitable promissory estoppel were also not in dispute. Counsel for Nutrien and FPA referred to the discussion of the doctrine of equitable estoppel in the reasons for decision of Quinlan CJ and Vaughan JA in Wilson v Arwon Finance Pty Ltd.[97] I had regard to and applied the same in the disposition of this application.
[97] Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 [80] ‑ [102].
Counsel on behalf of Nutrien summarised the principles in the following terms (which was accepted on behalf of FPA as being not contentious):[98]
[98] Nutrien submissions filed on 22 April 2024, pars 18 ‑ 24; FPA's submissions filed on 25 April 2024, par 8.
(a)the doctrine of equitable promissory estoppel operates to prevent a party unconscientiously departing from an assumption or expectation which it has induced another party to adopt and to act in reliance on to its detriment;[99]
[99] Wilson v Arwon Finance Pty Ltd [82].
(b)equitable estoppel is grounded in the body of equitable doctrine that prevents the unconscientious assertion of claimed legal rights;[100]
[100] Wilson v Arwon Finance Pty Ltd [84].
(c)more is required than simply a representation or conduct on the part of one party that induces the other party to hold an assumption or expectation: a mere broken promise will not suffice. Instead, reliance and detriment are also essential;[101]
[101] Wilson v Arwon Finance Pty Ltd [85] - [86].
(d)as described by Brennan J in Walton Stores (Interstate) Ltd v Maher, the criteria for equitable promissory estoppel are as follows:[102]
[102] Wilson v Arwon Finance Pty Ltd [88].
(i) The plaintiff assumed or expected that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship.
(ii) The defendant has induced the plaintiff to adopt that assumption or expectation.
(iii) The plaintiff acts or abstains from acting in reliance on the assumption or expectation.
(iv) The defendant knew or intended the plaintiff to do so.
(v) The plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled.
(vi) The defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise;
(e)in its application to particular circumstances, Brennan J's statement of the criteria for equitable promissory estoppel must be applied so as to give effect to the broad equitable principles underlying its application;[103] and
(f)when established, equitable estoppel gives rise to an 'equity' in favour of the person claiming the benefit of the estoppel. The remedy for satisfying the equity varies according to the circumstances of the case. Relief is confined to the minimum equity needed to avoid the relevant detriment. But, depending on the circumstances of the case, this may call for enforcement of the relevant assumption or expectation.[104]
[103] Wilson v Arwon Finance Pty Ltd [91].
[104] Wilson v Arwon Finance Pty Ltd [100].
As to the principle summarised at [128(c)] above, counsel for FPA expanded upon the same, noting as follows.[105]
[105] FPA's submissions filed on 25 April 2024, pars 8 - 15.
The something 'more' referred to at (c) is the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise will be performed and that the plaintiff relied on that assumption to its detriment to the knowledge of the defendant.[106] The determination of whether it is unconscionable for the defendant to depart from an assumption or expectation created in the mind of the plaintiff will depend upon the facts and circumstances of the case.[107]
[106] Walton Stores (Interstate) Ltd v Maher (406); Austotel Pty Ltd v Franklins Self‑Serve Pty Ltd (1989) 16 NSWLR 582, 610, 612; S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637, 653.
[107] Wilson v Arwon Finance Pty Ltd [87].
The application of the doctrine of estoppel is circumscribed by established legal principles. For sound reason, caution must be exercised before finding that an estoppel has been established. For, if found, the effect will be to suspend or abrogate valuable legal rights of a party. The quality of the evidence, the commercial reality, the inherent probabilities and the detriment to the plaintiff must indicate that there is a good reason why the defendant should be prevented from having full benefit of the bargain to which it originally agreed.[108]
[108] Seven Network (Operations) Ltd v Warburton (No 2) [46].
To establish an equitable estoppel, Nutrien will need to prove (relevantly) that first, it assumed that a particular relationship then existed between it at the FPA or expected that a particular relationship would exist between them and, in the latter case, that the FPA would not be free to withdraw from the expected relationship; and secondly, that FPA induced Nutrien to adopt the assumption or expectation.[109]
[109] Walton Stores (Interstate) Ltd v Maher.
The careful identification of the assumption or expectation which the FPA is said to be estopped from denying or asserting is required.[110]
[110] DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) [44].
The reference to an expectation that 'a particular legal relationship would exist' and that the defendant 'would not be free to withdraw' from it, draws attention to two essential aspects of the expectation. First, it must be as to a legal relationship which is expected to exist between the parties. Secondly, the expectation be induced by a promise which is intended by the defendant and understood by the plaintiff to affect their legal relations with the result that it is treated between them as something which the defendant is bound to do or not to do.[111]
[111] DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) [49].
The assumption or expectation must also be reasonable. Whether an assumption or expectation is reasonable to found an estoppel involves consideration of whether it is certain. Generally, a promise or representation will be sufficiently certain to support an estoppel if it was reasonable for the plaintiff to interpret the representation or promise in a particular way and to act in reliance on that interpretation.[112]
[112] Sullivan v Sullivan [2006] NSWCA 312 [85]; Evans v Evans [2011] NSWCA 92.
The importance of the inducement element must not be overlooked. The justice of an estoppel depends also on the manner in which the assumption has been occasioned or induced. The defendant must have played such a part in the adoption of, or persistence of, the assumption or expectation that it would be unconscionable (that is, the defendant would be guilty of unjust or oppressive conduct) if it were free to depart from it.[113]
[113] Wilson v Arwon Finance Pty Ltd [93].
Whether a promise or representation has induced an expectation which, if relied upon, would be sufficient to give rise to an equity depends upon the circumstances, including the nature of the relationship between the parties and whether they contemplate that any interest to be granted or promise to be performed is to be created by a binding contract.[114]
[114] DHJPM Pty Ltd v Blackthorn Resources Ltd (formerly called AIM Resources Ltd) [56].

Disposition

Serious question to be tried

FPA maintained, and I accepted, that there appeared to be considerable difficulties with Nutrien's case. Among other things, some of the documents exchanged between the parties noted that no items the subject of their negotiations were agreed until all items were agreed and approvals obtained;[115] that any proposal or draft terms had to go to (at least) the Board of FPA for approval;[116] and that the proposed new lease was to be negotiated in parallel with the proposed new operating agreement,[117] and they were to be concluded together.[118] Further, the new lease terms had not all been agreed by September 2022; and there was no evidence that the terms of the new services agreement had been concluded (and to the contrary, it appeared that there were outstanding issues on the new services agreement as at 24 January 2024).[119]
[115] See by way of example the affidavit of AJ Duperouzel sworn on 22 April 2024, AD‑21 (Negotiation Schedule at page 373 of the affidavit).
[116] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD‑14 (page 348 of the affidavit), AD‑33 (page 573 of the affidavit); affidavit of JA Allardice affirmed on 24 April 2024, JA-07.
[117] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-28 (page 448 of the affidavit), AD‑33 (page 573 of the affidavit), AD-21 (page 382 of the affidavit).
[118] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-31 (pages 484 and 482 of the affidavit).
[119] Affidavit of AJ Duperouzel sworn on 22 April 2024, AD-38 (pages 702 - 733 of the affidavit).
There was also considerable weight in the observation made on behalf of FPA that Australian courts have been reluctant to uphold claims of equitable estoppel in commercial settings, where parties with commensurate bargaining power are engaged in arm's length dealings regulated by express contractual provisions. Counsel for FPA noted that it was self‑evident that, except for good reason, commercial parties do not usually conduct themselves in such a way as to forfeit their entitlement to exercise valuable legal rights, and in such a case it is necessary to scrutinise carefully the circumstances that are said to lead to the conclusion that it would be inequitable to permit a party to insist on its legal rights.[120]
[120] Seven Network (Operations) Ltd v Warburton (No 2) [46].
That said, as observed above, to secure relief Nutrien did not need to show that it is more probable than not that, at trial, it will succeed. Further, the court does not give or withhold relief upon a forecast as to the ultimate result of the case.[121] On balance, I accepted that the evidence before the court was sufficient to raise a triable issue. In so concluding, I gave careful consideration to Nutrien's pleaded claim of equitable estoppel, and the affidavit evidence before the court, particularly to the evidence that was cross‑referenced and relied upon by Nutrien. There was in the evidence before the court sufficient evidence of a prima facie case of the criteria for equitable promissory estoppel as described by Brennan J in Walton Stores (Interstate) Ltd v Maher.
[121] Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, 622; National Australia Bank Ltd v Joyce [2012] WASC 224.
As Mr Duperouzel was at all material times a director of Nutrien, and in light of his direct and personal involvement in the negotiations with FPA (as he deposed to),[122] I was satisfied that he was able to depose that by September 2023, it was Nutrien's understanding and assumption that all of the terms of the further lease extension had been agreed. Further, I did not accept that on no analysis of the evidence could Nutrien reasonably have assumed any of the assumptions pleaded at par 17 of the statement of claim (reproduced above at [97]).
[122] Affidavit of AJ Duperouzel sworn on 22 April 2024, par 44.
On the evidence presently before the court, given the course of dealings between the parties, I accepted the submission made on behalf of Nutrien that the court could not foreclose that at trial, it might be found that Nutrien did make the assumptions as pleaded; that they were reasonable and induced or encouraged by FPA; that Nutrien abstained from acting in reliance on the assumptions with FPA's knowledge; and that Nutrien would suffer detriment of the assumptions were not fulfilled, in circumstances where FPA has failed to act to avoid that detriment.
I came to this conclusion cognisant that there had been a fire on 9 February 2024, and that FPA had formed the view that repairing the shed, or demolishing and rebuilding the shed would be uneconomical, and did not meet FPA's future strategic objectives to develop the area to be efficient common user infrastructure.[123] However, I did not accept that if Nutrien was at trial to satisfy the criteria for promissory equitable estoppel, Nutrien would necessarily be denied relief in equity because of the change circumstance caused by the fire, the change in FPA's position as a consequence of the fire, or the potential cost to FPA in honouring its promise to Nutrien.
[123] Affidavit of JA Allardice affirmed on 24 April 2024, par 19.
Further, I did not consider the form of final relief sought on behalf of Nutrien (as described in the prayer for relief to the statement of claim indorsed on the writ of summons) to be beyond the bounds of equitable relief, or necessarily unworkable.[124] Among other things, counsel for FPA had raised as a concern par D of Nutrien's prayer for relief, which was in the following terms:
An order that FPA execute and do all things necessary to give effect to a deed in substantially the same terms as the deed of option and variation of lease agreed between the parties on or around 4 September 2023, subject to any necessary modifications agreed between the parties, and, in the event that the parties are unable to agree on the necessary modifications, each party may have liberty to apply for further orders including as to appointment of an expert under O 40 r 2 of the Rules of the Supreme Court 1971 to settle the terms of the deed.
[124] See [117] above.
In response to this concern, counsel for Nutrien referred to the relief granted by White J in Construction Technologies Australia Pty Ltd v Doueihi [2014] NSWSC 1717, where in order to satisfy equity, an order was made compelling the defendants to execute a written lease which was to include 'other usual lease covenants for a lease of factory premises', and provided for the appointment of a court appointed expert if those 'usual lease covenants' could not be agreed.[125] In the end, I did not consider the form of final relief sought by Nutrien to be a matter which weighed against the grant of interlocutory injunctive relief.

Balance of convenience

[125] Which orders were not disturbed upon appeal: Doueihi v Construction Technologies Australia Pty Ltd [2016] NSWCA 105.

The grant of an injunction involves balancing the injustice which might be suffered by the defendant if the injunction is granted but the plaintiff later fails at trial, against the injustice which might be suffered by the plaintiff if the injunction is not granted and plaintiff later succeeds at trial.
I proceeded cognisant that the strength of the plaintiff's case and the balance of convenience were to be considered together. Further, as the apparent strength of the plaintiff's case diminishes, the balance of convenience moves against the making of an order; and where the balance of convenience weighs strongly in favour of an injunction, a prima facie case that is not particularly strong may nevertheless sustain the granting of an interlocutory injunction.[126]
[126] Warner-Lambert Company LLC v Apotex Pty Ltd [70].
As to the balance of convenience, on the evidence before me and having regard to the strength of Nutrien's prima facie case, I was satisfied that the evidence strongly favoured the grant of the relief sought.
In so finding, I accepted that in the circumstances, the refusal of interlocutory injunctive relief would, in effect, decide the matter against Nutrien (leaving as the relief only equitable compensation), whereas the grant of relief would not in effect, decide the matter against FPA. I also weighed in the balance the significant harm to Nutrien of not granting the relief sought, which would leave Nutrien a trespasser to Lease Area OH6. The potential injustice and damage to Nutrien of imminently being locked out was significant, whereas the potential injustice and damage to FPA if the relief sought was granted appeared to be significantly less. Further, I was cognisant that Nutrien had been able to recommence modified operations at Lease Area OH6 since the fire within the bounds of FPA's WHS Alert 153, and while the parties were not able to agree terms, there was evidence before the court that FPA had been open to Nutrien remaining in possession of Lease Area OH6 after 30 April 2024. On the evidence, it did not appear to be the case that FPA considered itself to be wholly constrained in its negotiations with Nutrien after 28 March 2024 by concerns as to safety or environmental impact.
This was not a case where the grant of interlocutory injunctive relief in favour of Nutrien would have the practical effect of determining the claim in favour of Nutrien. Rather, it would allow for the status quo to be maintained until the determination of the substantive proceeding. If no stay is secured upon the application of FPA for referral to arbitration, as the parties were advised prior to the hearing of the interlocutory application, the court can accommodate an expedited trial in the period 20 May 2024 to 28 June 2024.
When considering the balance, I also had regard to the impact of the injunction on the interests of third parties, that is, Nutrien's customers. I was cognisant of the evidence before the court to the effect that Nutrien dispatches over 350 variations of fertiliser in Western Australia, and it holds an estimated 20% of the market share in Western Australia for fertiliser. I was also cognisant that Lease Area OH6 is by far the biggest operational site for Nutrien in Western Australia.
I did not understand the matters deposed to by Mr Duperouzel described at [55] and [90] above to be controversial. I accepted that refusal of the application would likely cause some disruption to the market for fertiliser in Western Australia, with the potential to adversely impact Western Australian farmers.
After weighing in the balance all of the evidence before me, I concluded that there appeared to be a greater risk of injustice being done if I refused to grant the injunction in favour of Nutrien and Nutrien were to later succeed, than if I granted relief and FPA were to later successfully defend the proceeding. I accepted that there was a serious question to be tried, and the balance of convenience strongly favoured the grant of injunctive relief.

Finally, given the concessions made on behalf of Nutrien (particularly with respect to the operation of cl 5.3 of the Lease), and the fact that Nutrien had recommenced modified operations at Lease Area OH6 since the fire, I consider it possible to frame 'workable' interlocutory injunctive orders that would have the effect of maintaining the status quo. The status quo should be regarded as being the factual situation as at the hearing of the application. That is, that Nutrien shall continue to enjoy possession of Lease Area OH6 subject to the same terms and conditions as those under the Lease, but Nutrien shall operate in the modified manner as it has done since recommencing its operations after the fire on 9 February 2024, without FPA being compelled in the meantime to repair or replace the fire damaged infrastructure.

Conclusion and orders

Notwithstanding the reservations I have expressed in relation to the strength of Nutrien's case, I considered that there was a serious question to be tried and that the injunction should be granted. After hearing submissions from counsel as to the appropriate form of the orders, it was ordered that upon Nutrien's undertaking as to damages dated 22 April 2024, and pending the hearing and determination of the action (or any arbitral proceeding), or until further order:
1. Subject to order 2 below, the defendant be restrained from:
(a) taking possession of the land described as 'Lease Area OH6', Kwinana Bulk Cargo Jetty, Kwinana, Western Australia (comprising an area of 41,301 square metres and being part of the land known as Lot 497 on Deposited Plan 35196 being the whole of the land comprised in Certificate of Title Volume 3129 Folio 310) (Demised Land); and
(b) otherwise interrupting or disturbing the plaintiff's peaceable possession and enjoyment of the Demised Land subject to the same terms and conditions as those under the written lease dated 8 July 2003 between Fremantle Port Authority and United Farmers Co‑operative Company Ltd for the Demised Land, as assigned to the plaintiff (Lease).
2. For the purposes of these orders, the rights and obligations between the parties exclude the operation of or obligations contained in clauses 3.5(b) and 5.3 of the Lease.
3. There be liberty to apply.
4. The costs of the injunction application be costs in the cause of this action (or any arbitral proceeding).
Express reference was made to cl 3.5(b) and cl 5.3 of the Lease in the orders, and I accepted the submission made on behalf of FPA that it was appropriate that the operation of, or obligations contained in, those provisions be expressly excluded.
As noted above, the undertaking of FPA under cl 3.5(b) of the Lease concerns FPA's obligation to make available and maintain the 'Storage Facility'.[127] I considered that the preservation of the status quo required that Nutrien be permitted to continue to operate from Lease Area OH6 as it had done in the period following the fire and immediately prior to the granting of interlocutory injunctive relief. The minimum relief necessary to do justice between the parties did not require FPA at this time to undertake significant work repairing the damage to the shed on Lease Area OH6 caused by the fire, or to replace the shed.
[127] As discussed at [31] above.
Further, I was not persuaded by the submission made by counsel for Nutrien that the form of orders ought be crafted so that FPA would not be excused from undertaking the works necessary to re‑establish amenities or connections to services required by Nutrien for the efficient operation of its business (that is, amenities or connections to services enjoyed by Nutrien prior to the fire). In refusing to make such an order I was cognisant of the following.
First, there was no evidence before the court as to the precise nature and scope of the works contemplated by Nutrien. Secondly, as Nutrien had recommenced modified operations at Lease Area OH6 since the fire within the bounds of FPA's WHS Alert 153, the inclusion of relief as promoted on behalf of Nutrien appeared to require more of FPA than strictly needed to maintain the status quo, granting in favour Nutrien relief greater than the minimum necessary to do justice between the parties.
As to the exclusion of the operation of cl 5.3 of the Lease, as noted above, the clause concerns holding over and provides that in the event of Nutrien '… remaining in possession of the Demised Land after the expiration of the Term, [Nutrien] shall be a 24 monthly tenant of FPA at an annual rent equivalent to the Rent payable by [Nutrien] at the expiration of the Term and otherwise on the same terms and conditions of this Lease …'.[128]
[128] As discussed at [28] above.
The exclusion of the operation of cl 5.3 was uncontroversial, having been a concession made by counsel for Nutrien during the course of the hearing.[129] It would not be appropriate for Nutrien's continued possession of Lease Area OH6 after 30 April 2024 pursuant only to an interlocutory injunctive order, to constitute holding over pursuant to cl 5.3 of the Lease so as to entitle Nutrien to an additional 24 month tenancy.
[129] ts 67 (26 April 2024); see also the affidavit of SJ Williams affirmed on 24 April 2024, SJW-6 (page 115 of the affidavit).
That the costs of the injunction application ought be costs in the cause of this action (or any arbitral proceeding), was common ground. Further, as was made plain by the inclusion of order 3, there will be liberty to apply, and it is always open to the parties to come back before the court to seek a variation or discharge of the orders if there is a material change in circumstances since the application was heard or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application, the effect of which is to demonstrate that the situation in respect of the grant of interlocutory relief is materially different from that which applied when the order was originally made, so that it would be unjust to enforce the injunction in its original terms.[130]
[130] Omar v Darul-Iman (WA) Inc [2013] WASC 311 [41], citing Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 178; Christmas Island Resort Pty Ltd v Casinos Australia International (Christmas Island) Pty Ltd (Unreported, WASC, Library No 960641, 8 October 1996), [4] ‑ [5]. See also Shi v Agostino Nominees Pty Ltd [No 2] [2023] WASC 86 [27]; and Civil Procedure Western Australia [52.1.41], citing Metropolitan Petar v Mitreski [2003] NSWSC 1007 [13].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SE
Associate to the Honourable Justice Strk
15 MAY 2024