Nutrien AG Solutions Ltd v Kaye Lorraine Andrews and Terry Colin Andrews as trustees for the Andrews Family Trust - [2023] WASC 96

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NUTRIEN AG SOLUTIONS LTD -v- KAYE LORRAINE ANDREWS AND TERRY COLIN ANDREWS as trustees for THE ANDREWS FAMILY TRUST [2023] WASC 96
CORAM:   ARCHER J
HEARD:   27 FEBRUARY 2023
DELIVERED          :   28 MARCH 2023
FILE NO/S:   CIV 1156 of 2023
BETWEEN:   NUTRIEN AG SOLUTIONS LTD
Plaintiff
AND
KAYE LORRAINE ANDREWS AND TERRY COLIN ANDREWS as trustees for THE ANDREWS FAMILY TRUST
First Defendant
TERRY COLIN ANDREWS
Second Defendant
KAYE LORRAINE ANDREWS
Third Defendant
ELDERS RURAL SERVICES AUSTRALIA LTD
Fourth Defendant

Catchwords:

Interlocutory injunction - Restraint of trade - Reasonableness - Severability - Balance of convenience

Legislation:

Nil

Result:

Injunction granted

Representation:

Counsel:

Plaintiff	:	R Young SC
First Defendant	:	S R Sirett
Second Defendant	:	S R Sirett
Third Defendant	:	S R Sirett
Fourth Defendant	:	R E King & E L Blewett

Solicitors:

Plaintiff	:	Hall & Wilcox
First Defendant	:	Thomson Geer
Second Defendant	:	Thomson Geer
Third Defendant	:	Thomson Geer
Fourth Defendant	:	Corrs Chambers Westgarth

Case(s) referred to in decision(s):

Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288
Bedshed Franchising Pty Ltd v Battersby [2015] WASC 224
Birdanco Nominees Pty Ltd [2012] VSCA 64
Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219, 35
Electricity Generation and Retail Corporation trading as Synergy v EIT Kwinana Partner Ptd Ltd [2022] WASCA 3
Emeco International Pty Ltd v O'Shea [2012] WASC 282
Extraman (NT) Pty Ltd v Blenkinship [2008] NTSC 31; (2008) 23 NTLR 77
Findex Group Limited v McKay [2020] FCAFC 182
Fitzgerald v Masters [1956] HCA 53; (1953) 95 CLR 420
Geraghty v Minter (1979) 142 CLR 177
Gourmania Holdings Pty Ltd v Schlegel [2021] WASCA 28
Habitat 1 Pty Ltd v Formby (No 2) [2017] WASC 331
Hanna v OAMPS Insurance Brokers Ltd [2010] NSWCA 267
Just Group Ltd v Peck [2016] VSCA 334; (2016) 344 ALR 162
Lloyds Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [2023] WASC 73
Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171
Rentokil Pty Ltd v Lee (1995) 66 SASR 301
Sear v Invocare Australia Pty Ltd [2007] WASC 30
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR 317
Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76
Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169
Southern Cross Computer Systems Pty Ltd v Palmer (No 2) [2017] VSC 460
Stacks Taree Pty Ltd v Marshall [No 2] [2010] NSWSC 77
Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Vision Eye Institute Ltd v Kitchen [2014] QSC 260

Table of Contents

Introduction

Background

Nutrien's business

Quairading store

Terms of the Affiliate Agreement

Elders

Relevant events

The legal principles relating to interlocutory injunctions

Approach

Assessment of evidence

Issues

The evidence

Mr Lynn's evidence

Ms Andrews

Canola Orders Email

Customer letter

The 'aide-memoire'

Has Nutrien made out a prima facie case?

Restraint of trade clauses

Clause 24.1

The phrase 'Restricted Activity area'

Power to correct an absurdity

Is cl 24.1 absurd, as it is written?

Is clause 24.1 unreasonable (and therefore void)?

The interests said to require protection

Relevant factors

Conclusion on reasonableness

Is clause 24.1 uncertain (and therefore void)?

The number of permutations

Can any unreasonable restraints be severed?

Single restraint?

Scope of clause 21.11

Cannot sever words outside of an alternative?

Uncertainty

Does the balance of convenience favour the grant of the injunction?

What injury would Nutrien suffer if an injunction were not granted?

What injury would the defendants suffer if an injunction were granted?

Other factors

Conclusion

Summary

Orders

ARCHER J:

Introduction

The plaintiff (Nutrien) filed an urgent application for an interlocutory injunction on 14 February 2023. It was listed for hearing before me on 16 February 2023. All parties attended and were represented.
The defendants sought an adjournment to give them time to adduce evidence and file written submissions. Nutrien pressed for an injunction.
I granted an interim injunction until 27 February 2023, giving brief oral reasons. I gave the parties the opportunity to further confer in relation to the form of the orders to reflect my reasons. The following day, 17 February 2023, I made formal orders granting the interim injunction and programming the filing of evidence and submissions for a hearing on 27 February 2023.
What follows are my reasons for concluding that the injunction should remain in place until the final hearing of this matter, or further order.

Background

Nutrien's business

Nutrien sells agricultural chemicals, fertilisers and supplies to farmers across Australia. It is also involved in the provision of insurance and farming‑business related finance and acts as a wholesaler of agricultural goods to approved resellers.[1]
[1] Affidavit of Justin Ryan Lynn dated 14 February 2023 (Lynn Affidavit) [8].
Nutrien runs its business through:[2]
(a)Nutrien corporate stores, wholly owned by Nutrien and staffed by Nutrien employees;
(b)affiliate stores, such as the one which is the subject of the present dispute …; and
(c)approved resellers (wholesale businesses). These are stores which sell Nutrien goods independently. By way of differentiation from affiliate stores, these wholesale stores buy Nutrien goods then on-sell to farmers/customers - these goods are held by the approved resellers 'at risk', that is on their balance sheet. In contrast affiliates never hold Nutrien goods 'at risk' or 'on their balance sheet' - they simply trade on Nutrien's balance sheet and Nutrien finances the goods/inventory and carries the risk of holding the goods. The affiliates sell Nutrien goods to customers on Nutrien's behalf.
[2] Lynn Affidavit [9].
Under the affiliate model, Nutrien supports its affiliates in various ways. It provides training, information technology infrastructure and support, brand promotion and marketing, and access to bulk discounts.[3]
[3] Lynn Affidavit [25] - [28]. See also Lynn Affidavit, Attachment JRL-2 (Affiliate Agreement) Part 4 cl 5.7 (Lynn Affidavit page 109) and cl 6 (Lynn Affidavit page 111).
In addition, Nutrien provides financial incentives to the affiliates. In particular, Nutrien provides its products to the affiliate to sell to its customers. Nutrien retains ownership of the products. Affiliates get the benefit of the revenue, without having to outlay any cash, and without bearing any risk (including price risk). The risk always remains with Nutrien. Affiliates also receive higher ongoing remuneration compared to employees working in a Nutrien corporate store.[4]
[4] Lynn Affidavit [9(c)], [17] and [25] - [28].
Further, under the affiliate agreements, affiliates are also permitted to run their own businesses alongside the Nutrien business.

Quairading store

Since 1998, Nutrien[5] has sold its products in Quairading through an affiliate store at 13 ‑ 15 Heal Street (Quairading Affiliate Store). Quairading is a town in the wheatbelt region of Western Australia about 165 km east of Perth.[6]
[5] Formerly called 'Landmark Operations Limited' - see Lynn Affidavit [6].
[6] Lynn Affidavit [50]. Although Mr Lynn said 'west', this was plainly a typographical error.
From 1998 to 2008, the Quairading Affiliate Store was operated by Bluevalley Nominees Pty Ltd (Blue Valley) as 'Quairading Agri Services'. Its principal business was selling Nutrien agricultural products, but it also sold some hardware, homewares and gardening products.[7] Nutrien had no interest in the non‑agricultural products.
[7] Lynn Affidavit [53] - [58] and affidavit of Terry Andrews filed on 21 February 2023 (Andrews Affidavit) [9].
In 2008, Mr Andrews and his wife Ms Andrews, the second and third defendants, purchased the business from Blue Valley. They carried on the comingled operations that had been conducted by Blue Valley (of selling both Nutrien's agricultural products and the non‑agricultural products which were unconnected to Nutrien). In or about 2016, Mr and Ms Andrews added a logistics business to their operations.[8] I will refer to the supply of the non‑agricultural products and the logistics business collectively as 'the Andrews Business'.
[8] Andrews Affidavit [9] - [12]. See also Lynn Affidavit [53] ‑ [64].
New agreements were entered into over the years, with the most recent one being dated 4 December 2018[9] (Affiliate Agreement). Under this agreement, the 'affiliate' was the first defendant (the Andrews Trust). Mr and Ms Andrews were 'Key Persons' under the agreement, being the guarantors of the Andrews Trust's obligations.[10] I will refer to the first to third defendants collectively as 'the Andrews'. I will also use that expression to refer to any one or more of the first to third defendants, unless it is necessary to be precise.

Terms of the Affiliate Agreement

[9] Affiliate Agreement (Lynn Affidavit page 94).

[10] Affiliate Agreement Part 1 item 2 (Lynn Affidavit page 93), Part 2 (page 94) and Part 4 cl 13 (page 117).

Under the Affiliate Agreement, Nutrien appointed the Andrews Trust to be its affiliate in relation to each 'Affiliate Activity'.[11] The 'Affiliate Activities' are defined as 'Merchandise Partner, Fertiliser Agency, Insurance and Finance Referrer'.[12] Relevantly to these proceedings is the 'Merchandise Partner' activity, which encompassed the supply of Nutrien agricultural products.
[11] Affiliate Agreement Part 1 Item 1 and Part 2 cl 1 (Lynn Affidavit pages 93 and 94).
[12] Affiliate Agreement Part 1 item 8 (Lynn Affidavit page 93).
The Andrews Trust accepted the appointment[13] and agreed to conduct the 'Combined Business' of the store.[14] 'Combined Business' is defined to mean[15]
the business comprising all the Affiliate Activities to be conducted by the Affiliate in satisfaction of the Affiliate's obligations pursuant to the Schedules of this Agreement.
[13] Affiliate Agreement Part 2 cl 1 (Lynn Affidavit page 94).
[14] Affiliate Agreement Part 4 cl 2 (Lynn Affidavit page 105).
[15] Affiliate Agreement Part 4 cl 1.1 (Lynn Affidavit page 104).
I will refer to the 'Combined Business' as the 'Agricultural Business' in these reasons.
By cl 9 of the Affiliate Agreement, if the Andrews Trust wanted to assign its rights under the Affiliate Agreement, Nutrien had the right of first and last refusal. Clause 10 makes it clear that the Andrews Trust did not have a right to any payment at the end of the term or any further term.
Clause 18 of the Affiliate Agreement seeks to protect confidential information.
Clause 24.1 of the Affiliate Agreement is a restraint of trade clause. It is set out later in full.[16]
[16] See under the heading 'Has Nutrien made out a prima facie case?'
Clause 21.11 provides for the severance of invalid or unenforceable parts of the Affiliate Agreement. It provides:[17]
If any part of this Agreement is or becomes illegal, invalid or unenforceable in any relevant jurisdiction, the legality, validity or enforceability of the remainder of this Agreement will not be affected and this Agreement will be read as if the offending part had been deleted in that jurisdiction only.
[17] Affiliate Agreement Part 4 cl 21.11 (Lynn Affidavit page 125).
The Affiliate Agreement commenced on 1 March 2018 for a period of three years. After that time, it was in a 'hold over' period. Once in a 'hold over' period, the Affiliate Agreement could be terminated on three months' notice.[18]

Elders

[18] Affiliate Agreement Part 4 cl 3.4 (Lynn Affidavit page 106).

One of Nutrien's key competitors in Western Australia is the fourth defendant (Elders).[19] If business is lost by Nutrien, it generally goes to Elders. If Elders loses business, it generally goes to Nutrien.[20]
[19] Lynn Affidavit [20]. Strictly, the evidence was that one of Nutrien's key competitors is 'Elders Limited and the Elders group of companies'. However, the parties proceeded on the basis that the fourth defendant itself was one of Nutrien's key competitors.
[20] Lynn Affidavit [22].
Up until this year, Elders did not have a store in Quairading.[21] Nutrien's General Manager, Southern Division, West Region, Mr Lynn, deposed that, to the best of his knowledge, Elders does not operate in the hardware, homewares or garden supplies industry.[22]

Relevant events

[21] Lynn Affidavit [109].

[22] Lynn Affidavit [20].

In mid‑2021, the Andrews began considering their 'longer‑term options'. Mr Andrews deposed:[23]
15.I do not recall ever being directed to the provisions of clause 24 of the Affiliate Agreement by Nutrien representatives or considering those provisions myself until the third defendants began considering our longer-term business options in mid‑2021.
[23] Andrews Affidavit [15].
In referring to the 'third defendants' in the plural and 'our' longer‑term business options, Mr Andrews was plainly intending to refer to both himself and his wife.[24]
[24] See Nutrien's oral submissions at ts 52, to which the defendants did not respond.
Beginning around June 2021, there were some discussions between Nutrien and Mr Andrews as to the Andrews' rights under the Affiliate Agreement and whether Nutrien would purchase the Andrews Business. Mr Andrews indicated that Nutrien would need to make an offer that exceeded $4 million.[25] In March 2022, Mr Andrews advised that he and Ms Andrews had 'made enquiries on the potential sale of our business including legal advice regarding our expired [Affiliate Agreement]'. He said he had committed to notifying Nutrien prior to making a final decision on a sale, and would honour that commitment.[26] Negotiations continued at a meeting in May 2022.[27] Mr Lynn deposed that, as at June 2022, he understood negotiations remained ongoing.[28]
[25] Lynn Affidavit [72] - [80].
[26] Lynn Affidavit, Attachment JRL‑7, pages 166 - 167.
[27] Lynn Affidavit [87].
[28] Lynn Affidavit [88] - [91].
The evidence shows that, since at least October 2022,[29] the Andrews had been corresponding with Elders, including providing information which was arguably confidential to Nutrien.[30] In particular, Nutrien asserts that an email sent by Mr Andrews to Elders on 13 October 2022[31] (Canola Orders Email) contained confidential information. This will be discussed further below.[32]
[29] See Lynn Affidavit, Attachment JRL‑19 (Canola Orders Email), page 182.
[30] See Lynn Affidavit [121] - [139].
[31] Canola Orders Email (Lynn Affidavit page 182).
[32] See under the heading 'The evidence'.
On an unknown date, the Andrews entered into an agreement with Elders described as an 'Asset Sale Agreement' (Elders Agreement). During these proceedings, the defendants provided to the Court and Nutrien a heavily redacted version of the Elders Agreement.[33] The redactions included the date on which the agreement was executed.
[33] Affidavit of Jessica Sarah Chapman filed 24 February 2023 (Chapman Affidavit) page 4 (Elders Agreement).
The Elders Agreement relevantly has two aspects. First, the Andrews sold the Andrews Business to Elders. Second, the Elders Agreement made provision for what was called the 'Post Completion Business'. 'Post Completion Business' was defined to mean 'the business conducted using the Assets as a business unit of [Elders] following Completion'.[34]
[34] See the definition of 'Post Completion Business' in the Elders Agreement (Chapman Affidavit page 12).
The redactions require that inferences be drawn as to what the second aspect entailed.[35] Nutrien submits that it can be inferred that the Andrews were to conduct Elders' business at new premises in Quairading (Elders Store). Nutrien submits that it can be inferred that, under the Elders Agreement, the Andrews would profit by selling Elders agricultural products in competition with the Nutrien agricultural products that the Andrews had sold at the Quairading Affiliate Store.
[35] From the unredacted parts of the Elders Agreement and from the evidence of Mr Andrews.
Nutrien submits that this is what could be inferred from the unredacted parts of the Elders Agreement and Mr Andrews' evidence. The defendants did not challenge this.
The relevant evidence of Mr Andrews is:[36]
28.Under the [Elders Agreement] for the sale of the Defendants' business to Elders, the Defendants are entitled to some earnout amounts based on sales results for all products sold in the New Elders' Quairading Store (including Agri-Business products such as fertiliser and seed).
29.I believe that if my wife and I are unable to be fully involved in the Agri-Business side of the New Store, it may be impossible for us to achieve the required earnout amounts, which are not allocated to either business specifically and we will lose the earnout payments.
30.It would be difficult to establish specifically what the cause and extent of our losses would be if we are restrained and cannot participate in the Agri-Business activities.
[36] Andrews Affidavit [28] - [30].
The purchase price payable by Elders involved three components. First, a completion payment of a redacted amount paid on completion. Second, within a redacted number of days of completion, another redacted amount to be paid, subject to adjustments. Third, the payment of 'Earn Out' amounts, if any, payable in accordance with cl 5.[37]
[37] Clause 4 of the Elders Agreement (Chapman Affidavit page 14).
On 16 November 2022, the Andrews terminated the Affiliate Agreement, by giving notice of termination (Notice of Termination).[38] By operation of the Affiliate Agreement, the Affiliate Agreement terminated on 15 February 2023.[39]
[38] Lynn Affidavit, Attachment JRL‑13, page 176.
[39] Being three months from the termination notice of 16 November 2022: see Affiliate Agreement cl 3.4 (Lynn Affidavit page 106). The holding over clause applied as the term expired on 28 February 2021: see Affiliate Agreement Part 1 items 4 and 5 (Lynn Affidavit page 93).
The same day, or the following day, the Andrews sent a letter to the customers of the Quairading Affiliate Store (Customer Letter).[40] Nutrien asserts that this letter informed the customers that the Agricultural Business and the Andrews Business would be continued from the new premises without change. This will be discussed further below.[41]
[40] Lynn Affidavit [106] and Attachment JRL-14 page 177 (Customer Letter).
[41] See under the heading 'The evidence'.
In January 2023, the Andrews ceased to trade from the Quairading Affiliate Store. Mr Lynn deposes this was on 25 January 2023.[42] Mr Andrews says, in effect, it was between 1 and 3 January 2023.[43]
[42] Lynn Affidavit [118].
[43] Andrews Affidavit [20].
It appears that the sale of the Andrews Business under the Elders Agreement was completed sometime before 8 February 2023. It further appears that the Andrews intended to commence in the Elders Store on 15 February 2023.[44]
[44] Affidavit of Penelope Helen Ford (Ford Affidavit) pages 7 and 30.
By at least 31 January 2023, the Elders Store was trading at 63 ‑ 67 Heal Street Quairading, under the name Quairading Agri Services. That location is about 400 m from the Quairading Affiliate Store.[45]
[45] Lynn Affidavit [110] - [112].
On 2 February 2023, Nutrien wrote to its customers to advise that the Quairading Affiliate Store would re‑open on 6 February 2023, with new owners.[46]
[46] Lynn Affidavit page 181.
On 14 February 2023, Nutrien brought an application for an urgent interlocutory injunction to restrain the Andrews from acting in breach of the restraint of trade clause and to protect confidential information. Nutrien alleged that the Andrews had already disclosed confidential information to Elders. Nutrien further alleged that the Andrews' involvement in the Elders Store would be in breach of the Affiliate Agreement and the Andrews' equitable obligations. Nutrien said that it was necessary to join Elders so that Elders would be bound by the relief.

Nutrien described its causes of action against the Andrews as:
(a)an action for breach of the restraint of trade clause, cl 24.1; and
(b)an action for breach of cl 18 relating to the protection of confidential information; alternatively, an equitable action for breach of the duty of confidence.
The interim orders on 17 February 2023:
(a)restrained the Andrews from, in effect, being interested in, or engaging in, any business with Elders (restraint of trade orders);
(b)restrained the Andrews from using confidential information; and
(c)made provision for the protection and production of documents.
The defendants do not contend that the latter two categories of orders should be vacated or varied. However, they contend that the restraint of trade orders should be vacated.
The defendants do not deny that the Andrews are seeking to engage in activities which, if cl 24.1 of the Affiliate Agreement is valid, would breach that clause. The defendants submit that cl 24.1 is void as against public policy. They further submit that the balance of convenience is in their favour.

The legal principles relating to interlocutory injunctions

The principles to be applied on an application for an interlocutory injunction are as follows:[47]
[47] Put into list form, with the relevant case cited in the footnote to each paragraph.
1.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.[48]
2.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.[49]
3.The second inquiry is whether the inconvenience or injury that the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury that the defendant would suffer if an injunction were granted.[50]
4.The question of adequacy of damages is not an independent requirement, but rather is considered as part of the balance of convenience.[51]
5.In equity's auxiliary jurisdiction,[52] the question of whether the plaintiff will suffer irreparable injury for which damages will not be adequate compensation involves no more than a consideration of whether the injury cannot properly be compensated in damages, or by an order for accounts or some other interim remedy. The question of whether the injury cannot properly be compensated in damages involves a consideration of whether it is just in all the circumstances that the plaintiff be confined to their remedy in damages.[53]
6.In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; whether those interests tend to favour the grant or refusal of an injunction in any given case depends upon the circumstances of the case; and hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive.[54]

Approach

[48] Mineralogy Pty Ltd v Sino Iron Pty Ltd[2016] WASCA 105 [87].

[49] Mineralogy [87].

[50] Mineralogy [87].

[51] Sino Iron Pty Ltd v Mineralogy Pty Ltd[No 2] [2017] WASCA 76 [131]. See also the cases cited in footnote 160 and Bedshed Franchising Pty Ltd v Battersby [2015] WASC 224 [69].

[52] In Sino Iron [131], it was said that, 'in an interlocutory injunction application in equity's exclusive jurisdiction [ie its jurisdiction over matters in which a court of equity alone has jurisdiction to grant relief], the question of whether damages or other remedies at law are adequate does not arise'.

[53] Sino Iron [131].

[54] Sino Iron [131].

The proper approach is as follows:[55]
1.The grant of an injunction involves balancing the injustice that might be suffered by the defendant if the injunction is granted and the plaintiff later fails at trial, against the injustice that might be suffered by the plaintiff if the injunction is not granted and the plaintiff later succeeds at trial.[56]
2.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.[57]
3.As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order.[58]
4.However, even an overwhelming balance of convenience in favour of an injunction cannot overcome the absence of a prima facie case.[59] The potential seriousness of the consequences of refusing relief must not distract attention from the obligation that lies on a party seeking an interlocutory injunction to show a sufficient likelihood of success to justify the injunction. A party who fails to show any likelihood of success does not overcome that by showing that they would suffer very severe consequences if relief were refused.[60]

Assessment of evidence

[55] Put into list form, with the relevant case cited in the footnote to each paragraph.

[56] Bedshed Franchising [70].

[57] Mineralogy [87].

[58] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [11].

[59] Bedshed Franchising [67].

[60] Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 (Newnes JA, with whom McLure JA, as her Honour then was, and Pullin JA agreed), quoted in Bedshed Franchising [67].

It is necessary for an assessment to be made of the probability of the plaintiff ultimately succeeding. The plaintiff's probability of success at trial is a critical factor in the determination of such an application. It is not enough simply to conclude that the plaintiff has a 'prima facie' case.
What is required is an assessment or evaluation of the case for the purpose of deciding whether the plaintiff has made out a prima facie case of sufficient strength to justify the grant of an interlocutory injunction and to enable the strength of the case to be taken into account in an assessment of the balance of convenience and justice.[61]
[61] Mineralogy [102].
However, determining an application for an interlocutory injunction does not require the judge to conduct a trial of the action.
While the court takes into account the apparent strength of the plaintiff's case, the court does not undertake a preliminary trial or attempt a forecast of the ultimate result. Moreover, an application for interlocutory injunction is not an occasion to determine contested questions of fact and conflict in affidavit evidence.[62]
[62] Bedshed Franchising [71].
Where a defendant adduces evidence in an application for an interlocutory injunction, there are limitations upon the extent to which a judge is to take that evidence into account. It is not the judge's function
to conduct a preliminary trial of the action, nor is it, in general, to resolve the conflict between the parties' evidence, and grant or refuse the application upon the basis of such findings. Where there is conflict of evidence, the use which may be made of the defendant's evidence in determining whether the plaintiff has made out a prima facie case is a limited one. For example, the plaintiff's evidence, considered alone, may be such a prima facie case as would be acceptable if submitted in a trial. But, when considered in the light of the defendant's evidence, it may be explained away so as no longer to be such. Or the defendant's evidence, when juxtaposed to that of the plaintiff may show that there is in reality no such case, no real question between the parties, appropriate to warrant preserving the status quo until the hearing.[63]
[63] Bedshed Franchising [72], citing Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729, 734.

Issues

The issues that require determination are as follows:
1.Has Nutrien made out a prima facie case? This issue will require an analysis of the scope of cl 24.1 and the likelihood it would be found to be valid.
2.Does the balance of convenience favour the grant of the injunction? Determining this will include considering whether, if an injunction is not granted, the plaintiff would suffer an injury that could not properly be compensated in damages. It involves a consideration of whether it is just in all the circumstances that the plaintiff be confined to their remedy in damages.

The evidence

Nutrien filed three affidavits. One showed the conferral between the parties. The other two were affidavits of Mr Lynn. The first of these was filed on 14 February 2023 and the other on 24 February 2023. It will be recalled that Mr Lynn is the General Manager, Southern Division, West Region, for Nutrien.
The Andrews filed two affidavits. One was an affidavit of Mr Andrews filed on 21 February 2023. The other was an affidavit of Jessica Sarah Chapman filed on 24 February 2023, attaching the redacted version of the Elders Agreement.

Mr Lynn's evidence

The Andrews were critical of Mr Lynn's first affidavit in two respects:[64]
a.[Mr Lynn] neglected to disclose the existence of an outlet for Nutrien products operating in the same town as the Affiliate Business (relevant to the alleged loss of market share and disruption to Nutrien profitability in the Quairading Area). Further, he has again provided limited information and not taken the opportunity to provide any meaningful information regarding the proportion or value of products sold through that outlet; and
b.Mr Lynn's statement as to Canola orders not being placed (suggesting adverse consequences in sales and ability to deliver seed), when the first defendant has deposed they were placed through Nutrien. The plaintiff had the opportunity to address this in Mr Lynn's further affidavit and has failed to do so. The Court should accept for the purposes of this application that the Canola orders referred to in attachment JRL-19 of Lynn's affidavit were ordered through Nutrien and, further, the first defendant's explanation for the email.
[64] The First, Second and Third Defendants' Submissions for the Setting Aside of Interim Orders filed 24 February 2023 (Andrews' Submissions) [14].
I do not accept the first.
Mr Lynn deposes in his second affidavit that, in around 2021, a competitor to Nutrien established a business in Quairading trading as 'Farmarama'. Farmarama sold agricultural supplies, including some sourced from CRT Ltd (CRT), via the CRT brand. CRT and Nutrien are ultimately wholly owned by Nutrien Ltd. Mr Lynn deposes, however, that Farmarama was not run by Nutrien and was not a Nutrien outlet. He said that Farmarama simply bought some of its agricultural products wholesale from CRT's wholesale channel.[65]
[65] Supplementary Affidavit of Justin Ryan Lynn filed 24 February 2023 [16] - [21].
Further, the presence of a competitor in Quairading would be relevant to the quantum of any loss Nutrien may suffer from the Andrews working at the Elders Store. Assuming the competitor had some customers of agricultural supplies, the presence of the competitor would mean that Nutrien would have less to lose. However, it is not relevant to the customers Nutrien currently has. Nutrien is aware it cannot seek to stop lawful, independent competition. Nutrien's primary concern is, in broad terms, to stop the loss of its existing customers. It seeks to prevent its existing customers being enticed to the Elders Store by the Andrews.[66]
[66] See the exchange at ts 81 - 83.
In relation to the second matter of which the Andrews were critical, the Andrews misread Mr Lynn's affidavit. Mr Lynn did not say that canola orders had not been placed. He stated that Nutrien did not receive a 'customer order list' from the Quairading Affiliate Store for canola seed for the March/April 2023 sowing season. His concern was that, without a customer order list, Nutrien could not identify which customers would be affected by the failure of a particular supplier (Supplier) to allocate seed to the Quairading Affiliate Store.[67]
[67] Lynn Affidavit [144(c)].
Mr Lynn attached to his affidavit an email in which Nutrien expressly referred to the seed that had been ordered from the Supplier for the Quairading Affiliate Store.[68] The Supplier advised that no seed had been allocated to the Quairading Affiliate Store as there was no Nutrien store in Quairading at that time.[69] In response, Nutrien told the Supplier that the only change was to the manager of the Quairading Affiliate Store and that all correspondence and purchase orders received for that store were on behalf of Nutrien and not any individual operator.[70]

Ms Andrews

[68] Lynn Affidavit, Attachment JRL-20, page 185.

[69] Lynn Affidavit, Attachment JRL-20, pages 184 ‑ 185.

[70] Lynn Affidavit, Attachment JRL-20, page 183.

During the hearing, Elders made several remarks, seemingly in passing, as to the absence of evidence in relation to Ms Andrews' knowledge or involvement.[71] It was not clear why Elders made these remarks. As Elders and the Andrews have a common interest in these proceedings, it was perhaps a criticism of the evidence adduced by Nutrien. Alternatively, it may have been attempting to implicitly suggest that, in the absence of such evidence, there would be no basis upon which Nutrien could reasonably seek to restrain her.
[71] ts 115 and ts 123. See also ts 139.
As the point was not developed, it is difficult to give it any weight. Further, given that the Andrews themselves did not make this point, it would appear that the Andrews could not properly contend that Ms Andrews was not fully involved in the business. Finally, any such evidence would be largely within the knowledge of the Andrews.

Canola Orders Email

On 13 October 2022, Mr Andrews sent the Canola Orders Email to Elders.[72] Nutrien asserts that the Canola Orders Email contained confidential information.
[72] Canola Orders Email (Lynn Affidavit page 182).
In his affidavit, Mr Andrews provided an explanation for the Canola Orders Email:[73]
22.…
(s)On the basis of my concerns regarding the supply issues, I then sent the Canola email, which is attachment JRL‑19 to Lynn's Affidavit to Elders, in case Elders had surplus seed they could supply from their own allocation if Nutrien couldn't supply local growers with their full requirements, rather than Nutrien falling short and the farmers being left in the lurch;
(t)At the time I sent the Canola email, I expected to be in the Elders' new store in Quairading at the time of the shortfall and able to assist any farmers left short;
(u)It was my belief at the time that if both Nutrien and Elders orders were supplied the clients would be better off than only one being supplied at a lower level. I do not have control of how suppliers allocate product;
[73] Andrews Affidavit [22(s) ‑ (u)].
As noted earlier, where a defendant adduces evidence in an application for an interlocutory injunction, there are limitations upon the extent to which a judge is to take that evidence into account.
It is not possible at this stage to evaluate Mr Andrews' explanation, nor would it be appropriate to try. Nor is it possible to determine whether the Canola Orders Email was confidential. I am satisfied, however, that it is at least arguable that the information in the Canola Orders Email was confidential. The email did not only identify the varieties of seed each customer wanted, it also included the quantities.
In any event, Nutrien need not demonstrate that there has already been a breach of the confidentiality obligations in order to establish it has a prima facie case.

Customer letter

As noted earlier, on 16 or 17 November 2022 (the same day as the Notice of Termination, or the following day), the Andrews sent the Customer Letter.[74] Nutrien asserts that this letter informed the customers that the Agricultural Business and the Andrews Business would be continued without change from the Elders Store. The Customer Letter stated:
Dear Clients,
Today Kaye and I have come to the difficult decision to notify Nutrien of our intention to terminate our Partnership Agreement that we have held with them in various forms since 2008.
Part of the agreement's requirement is that in the event we wish to terminate we need to provide Nutrien with 90 days' notice of our intent. To make things cleaner we have requested that the termination date be as of 1^stFebruary 2023 so not quite 90 days, though Nutrien also have in recent times changed this timeframe as they see fit so we cannot give you a definitive date on when we will no longer represent Nutrien.
Quairading Agri Services will still be open for business as usual and we have every intention of being able to supply clients with a complete range of products and services as we always have tried to do.
As many clients are aware we have purchased 63‑67 Heal Street and we are almost at the point that we are able to relocate the business to the new premises. We are very excited and just a little nervous with the exercise ahead of us but we believe we have commenced at a time where it will cause the least disruption to clients as possible.
If you would like to discuss or have any clarification on any of these changes as always we are only a phone call away, alternatively we will be happy to provide updates on a regular basis.
Kind regards,
[74] Lynn Affidavit [106] and Customer Letter (Lynn Affidavit, Attachment JRL‑14, page 177).
In his affidavit, Mr Andrews provided an explanation for the Customer Letter:[75]
17.… I say the letter was intended to convey that:
(a)until the end of the notice period Quairading Agri Services would be able to provide Nutrien products along Non‑Nutrien Business products as usual; and
(b)the Quairading Agri Services Non-Nutrien Business would relocate, as we needed to do, to have certainty of an ongoing lease (we were holding over on our sub‑lease with Nutrien and I expected they would terminate this arrangement once we gave notice of terminating the holding over of the Affiliate Agreement).
[75] Andrews Affidavit [17].
The Andrews submit, in effect, that this is how the Customer Letter was read by Nutrien. They refer to a letter Nutrien sent to its customers on 18 November 2022 (one or two days later).[76]
[76] ts 92 - 93.
I do not accept this. Nutrien's letter, on its face, appeared to be seeking to ensure that its customers knew that Nutrien would continue to conduct its Agricultural Business in Quairading and that the Andrews would be operating only the Andrews Business from their new premises (it appears that Nutrien did not yet know about the Andrews' involvement with Elders).[77]
[77] See Lynn Affidavit [106] - [109] and Attachment JRL‑15 page 178.
On its face, the third paragraph of the Customer Letter sent by the Andrews could be read as referring only to the period prior to the termination of the Affiliate Agreement, in which the Andrews would continue to operate the Quairading Affiliate Store. However, in the context of what follows, I consider it is unlikely it would be read in that way.
In particular, the reference to 'the' business and the causing of the 'least disruption' in the fourth paragraph tends to suggest that the business to be operated out of the Elders Store would be identical to the business being operated from the Quairading Affiliate Store. The Customer Letter as a whole suggests that nothing would change.
It is not possible at this stage to evaluate Mr Andrews' explanation. For present purposes, I merely observe that his explanation is not consistent with the tenor of the Customer Letter.

I further observe that the phrase in the second paragraph could be read as a criticism of Nutrien.

The 'aide-memoire'

During the hearing, Elders sought to tender what it referred to as an 'aide‑memoire', showing the location of Nutrien and Elders outlets within radii of 25 km, 50 km, 100 km and 250 km (being the various restraint areas listed in cl 24.1) from the Quairading Affiliate Store (Map).
It appeared that the Map showed every Nutrien building, not just those at which Nutrien sold products. It also showed the buildings as at today's date, rather than at the time the parties entered into the Affiliate Agreement.
I accepted the Map into evidence on the basis that it was limited in those ways.[78]
[78] ts 102 - 108.
The Map showed that there are numerous Elders and Nutrien buildings within 100 km of the Quairading Affiliate Store and still more within 150 km. The Map showed there are several within 50 km. There appear to be none, apart from the Quairading Affiliate Store itself, within 25 km.

Has Nutrien made out a prima facie case?

If cl 24.1 of the Affiliate Agreement is valid, what the Andrews are intending to do in the Elders Store would breach it. The defendants do not deny this. The defendants submit that cl 24.1 is unenforceable as it is against public policy.
Accordingly, the issue is whether Nutrien has established that there is a prima facie case that cl 24.1 is enforceable, sufficient to justify the preservation of the status quo pending the trial.

Restraint of trade clauses

A restraint of trade clause will be void unless it is 'reasonable'. A restraint is reasonable if it is necessary for the adequate protection of the restraining party and preserves the fullest liberty of action of the party restrained consistent with that protection.[79]
[79] Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169 [6] and [8] (McLure JA, as her Honour then was, with whom Buss JA, as his Honour then was, agreed).
Whether a restraint is reasonable is to be judged as at the date of the contract. Subsequent developments may be considered, but only for the purpose of determining whether it was a reasonable restraint to make at the time.[80]
[80] Smith [7] (McLure JA, as her Honour then was, with whom Buss JA, as his Honour then was, agreed). See also Southern Cross Computer Systems Pty Ltd v Palmer (No 2) [2017] VSC 460 [4].
If a restraint clause, on its face, is found to be unreasonable, it may be possible to sever parts of the clause, so as to render what remains reasonable (and enforceable).

Clause 24.1

Clause 24.1 uses the expression 'Combined Business'. It will be recalled that I refer to this as Nutrien's 'Agricultural Business'. This is to distinguish it from the comingled business that had been operated from the Quairading Affiliate Store, of selling both Nutrien's agricultural products and conducting the Andrews Business (being the selling of non‑agricultural products and the logistics business).
Clause 24.1 of the Affiliate Agreement provides:
24.RESTRAINT OF TRADE
24.1Restraint
The Affiliate and each Key Person jointly and severally covenant that the Affiliate and each Key Person will not during the Term and Further Term (if applicable) and the Restraint Period, directly or indirectly, whether:
(a)on the Affiliate's or each Key Person's account; or
(b)jointly with or on behalf of any person, corporation, trust, joint venture or syndicate as an officer, employee, consultant, advisor, director, independent contractor, partner, joint venturer or agent.
nor will:
(c)any agent, independent contractor or employee employed or engaged by you or by any firm, corporation, trust, joint venture or syndicate in which or [sic] any Key Person has a controlling interest, whether such interest is legally enforceable or not; or
(d)any firm, corporation (other than a publicly listed corporation), trust, joint venture or syndicate in which you may be interested, whether as a director, shareholder, unitholder, beneficial owner, employee, consultant or adviser;
carry on or be engaged in any Restricted Activity area.
For the purposes of this Clause 24.1
'Restraint Period' means:
(i)three (3) years;
(ii)two (2) years;
(iii)one (1) year; or
(iv)six (6) months,
whichever period is the greatest;
'Restraint Area' means the area within a radius of:
(i)150 kilometres of the Premises;
(ii)100 kilometres of the Premises;
(iii)50 kilometres of the Premises; or
(iv)25 kilometres of the Premises,
whichever area is the largest; and

'Restricted Activity' means any one or more of the following:
(i)carrying on or being interested, engaged or involved in any business or undertaking of a like or similar kind to the Combined Business or any one of the business activities conducted by the Affiliate pursuant to this Agreement;
(ii)carrying on or being interested, engaged or involved in any business or undertaking competitive with the Combined Business or any one of the business activities conducted by the Affiliate pursuant to this Agreement;
(iii)enticing away from [Nutrien] any customer of the Combined Business or obtaining or soliciting from a customer of the Combined Business any order for goods or services being the same or similar to those provided by the Combined Business or any one of the business activities conducted by the Affiliate pursuant to this Agreement;
(iv)enticing away from [Nutrien] any supplier to the Combined Business;
(v)enticing away from [Nutrien] any employee, agent, contractor or consultant of the Combined Business or encouraging any such agent, contractor or consultant to terminate their contract of employment or contract for services with the Combined Business; and
(vi)interfering with the Combined Business in any way.

24.2Acknowledgement
The Affiliate and each Key Person acknowledge that:
(a)The grant by [Nutrien] of the rights in relation to the Combined Business under this Agreement represents valuable consideration for the restrain[t] contained in Clause 24.1; and
(b)the restraint contained in Clause 24.1 is necessary, and no greater than is reasonably required, to protect the legitimate interests of [Nutrien].

The phrase 'Restricted Activity area'

By cl 24.1, the Andrews agree that they will not 'carry on or be engaged in any Restricted Activity area'. The Andrews submit that, due to this phrase, cl 24.1 purports to impose a worldwide restraint.[81]
[81] Andrews' Submissions [10], ts 97 and ts 100.
Nutrien accepts that, if cl 24.1 imposed a worldwide restraint, it would be unreasonable.[82] Nutrien submits, however, that, on its proper construction, cl 24.1 does not do this.
[82] Outline of Submissions in support of Plaintiff's Application for Interlocutory Injunction filed 15 February 2023 (Nutrien's Submissions) [30(c)].
Nutrien submits that the phrase 'carry on or be engaged in any Restricted Activity area' must mean 'carry on or be engaged in any Restricted Activity in any Restricted Area'. Nutrien submits that the Court can give that interpretation to cl 24.1 because the Court 'may correct a clear mistake where it admits of no other construction or to avoid absurdity or inconsistency'.[83] Nutrien submits that, if not read in the manner it contends, cl 24.1 would be absurd.[84]

Power to correct an absurdity

[83] Nutrien's Submissions [31], citing Fitzgerald v Masters [1956] HCA 53; (1953) 95 CLR 420, 426 ‑ 427 (Dixon CJ & Fullagar J).

[84] Nutrien's Submissions [30(c)].

In making this submission, Nutrien relies on a process of construction, as distinct from rectification. In Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service,[85] the Court of Appeal said (citations omitted):
As Leeming JA, with whom Payne and White JJA agreed, explained in Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq), in undertaking the process of construction by reference to an alleged error, it is important to mark the boundary between construction and rectification. There is, his Honour suggested, a world of difference between the two. His Honour elaborated:
'The requirements of ex facie absurdity or inconsistency and clarity as to what the parties must be taken to have intended ensure that rectification by construction remains an aspect of determining the objectively manifested legal meaning of contractual words, and accommodates the truth that sometimes, even in a formal legal document, the parties will make mistakes which are nonetheless readily identified and corrected. On the other hand, rectification in equity turns on the discrepancy between the written instrument and a separately proven contrary common intention, which was intended to have been incorporated into the instrument, such that it is unconscientious for a party to insist on performance in accordance with the written instrument. Rectification in equity is a departure - albeit one which is narrowly circumscribed by the insistence on cogent proof - from the objective theory of contract.'
[85] Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114 [63].
In Seymour Whyte Constructions,[86] Leeming JA explained this process of construction as follows:
[86] Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR 317, 322 [6] – [10] (Leeming JA, with whom Payne & White JJA agreed).
6.At common law, if the error is clear, and it is also clear what a reasonable person would have understood the parties to have meant, then the mistake may be corrected as a matter of construction. This is old law. Lord St Leonards said in Wilson v Wilson (1854) 5 HL Cas 40 at 66 - 67; 10 ER 811 at 822:
'Now it is a great mistake if it is supposed that even a Court of Law cannot correct a mistake, or error, on the face of an instrument: there is no magic in words. If you find a clear mistake, and it admits of no other construction, a Court of Law, as well as a Court of Equity, without impugning any doctrine about correcting those things which can only be shown by parol evidence to be mistakes - without, I say, going into those cases at all, both Courts of Law and of Equity may correct an obvious mistake on the face of an instrument without the slightest difficulty.'
7.Examples may be found in linguistic errors, such as 'inconsistent' being read as 'consistent' in Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53, or conceptual errors, such as 'lessor' being read as 'lessee' in McHugh Holdings Pty Ltd v Newtown Colonial Hotel Pty Ltd (2008) 73 NSWLR 53; [2008] NSWSC 542. The language of a contract is not read like a computer program, such that any slip is fatal.
8.Two conditions are necessary in order to correct the contractual language in this manner: (a) that the literal meaning of the contractual words is an absurdity and (b) that it is self‑evident what the objective intention is to be taken to have been: see Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [117] ‑ [119], approving National Australia Bank Ltd v Clowes [2013] NSWCA 179; 8 BFRA 600, where it was stated at [34]:
'Where both those elements are present ... ordinary processes of contractual construction displace an absurd literal meaning by a meaningful legal meaning.'
9.Likewise, in the United Kingdom, the court must be satisfied both as to the mistake and the nature of the correction: Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429; [2011] 1 WLR 770 at [21] (Lord Neuberger); Arnold v Britton [2015] AC 1619; [2015] UKSC 36 at [78] (Lord Hodge).
10.The court must be satisfied of those matters to a high level of conviction. To use the language of Dixon CJ and Fullagar J in Fitzgerald v Masters at 426 ‑ 427, it must be 'clearly necessary in order to avoid absurdity or inconsistency'. As this Court said in Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297 at [18], the test of absurdity is not easily satisfied. Any question of absurdity or inconsistency must be identified according to established principles, by reference to the text of the agreement as understood in its factual and legal context: Wyllie v Tarrison Pty Ltd [2007] NSWCA 184 at [46]; Newey v Westpac Banking Corporation [2014] NSWCA 319 at [85]. Courts which are asked to delete, insert or rewrite part of a contract because of what is said to be an obvious error should bear steadily in mind that imperfections and infelicities and ambiguities in contractual language commonly reflect the give and take of negotiations, or the parties' appreciation that some obscurities are incapable of resolution. As Lord Hoffmann explained, the court does 'not readily accept that people have made mistakes in formal documents': Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101; [2009] UKHL 38 at [23].
These observations were endorsed by the Court of Appeal in Gourmania Holdings Pty Ltd v Schlegel.[87] The Court went on to observe:[88]
That is, the test for identifying an error in the language used by the parties is a stringent one of clear necessity so as to avoid absurdity.
[87] Gourmania Holdings Pty Ltd v Schlegel [2021] WASCA 28 (Mitchell JA & Hill J) [191]. See also [67] (Buss P).
[88] Gourmania Holdings (Mitchell JA & Hill J) [192].
It is apparent that the parties do not dispute the legal principles to be applied to the construction of contracts. The dispute is as to whether the clause would be absurd if not read as Nutrien contends.

Is cl 24.1 absurd, as it is written?

Nutrien submits that cl 24.1 is absurd if not read as it contends because:[89]
(a)the covenant is drafted by reference to the verbs of 'carrying on' or 'engaging in'. Those verbs must be tied to an activity;
(b)read in its totality, the ordinary and natural meaning of cl 24.1 operates so that the Andrews defendants cannot carry on or be engaged in any Restricted Activity, being the relevant activity to which the verbs are connected;
(c)the errant 'area' after Restricted Activity must be understood to be 'in any Restraint Area' (being up to 150 kilometres of the Premises). If it were not understood in this way, 'Restricted Activity area' has no understandable meaning. It would mean the prohibition applies in whatever area the Restricted Activity is occurring. That would, in effect, be a worldwide prohibition. That interpretation of the prohibition in cl 24 would be an absurdity;
(d)if the words 'in any Restricted Area' were not read into cl 24.1, there would have been no purpose to the definition of 'Restricted Area' in cl 24.1. The term does not appear anywhere in cl 24.1. The definition must have been intended to be used. Self‑evidently it could only be used where 'area' appears.
[89] Nutrien's Submissions [30].
The Andrews submit that the phrase does not need to be interpreted in the way Nutrien contends to avoid being absurd. They submit that the clause is not absurd as it is capable of being enforceable if the underlying circumstances of the commercial arrangement justify it.[90] In particular, the Andrews submit that a worldwide restraint may be valid in some circumstances. They submit that, therefore, the fact that the clause can be construed as imposing a worldwide restraint does not make it absurd.[91]
[90] Andrews' Submissions [10(a)].
[91] See ts 97.
I accept that a worldwide restraint may be valid in some circumstances.
The Andrews further submit that[92]
the reference to Restraint Activity area could be read on its face as referring to the activities described in the defined term, Restraint Activity, the reference to the verbs 'carrying on' and 'engaging in' can quite properly be confined to the Restraint Activity.
[92] Andrews' Submissions [10(c)].
I do not accept this. If read in this way, the agreement that they will not 'carry on or be engaged in any Restricted Activity area' still makes no sense. The Andrews' submission is, in effect, that the word 'area' should be deleted, and that the definition of 'Restraint Area' should be given no work to do.
The Andrews submit that the rules that apply to construction of statutes do not apply to the construction of contracts.[93] I accept that. Nevertheless, it is a principle of contract construction that:[94]
An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.
[93] ts 96.
[94] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42(9)], citations omitted. See also Electricity Generation and Retail Corporation trading as Synergy v EIT Kwinana Partner Ptd Ltd [2022] WASCA 3 [230].
The Andrews further submit that[95]
such clauses should be read strictly given their potential to harm free trade and commerce as a matter of public policy and not afforded a sympathetic interpretation.
[95] Andrews' Submissions [10(d)].
The Andrews state that there is authority for the proposition that 'employer vis a vis employee restraints' are more strictly construed than similar covenants between a vendor and purchaser.[96] They submit, however, that that distinction 'appears to derive from the value paid for the goodwill passing by the transaction from the party to be restrained. In this case, no goodwill survives the termination of the Affiliate Agreement'.[97]
[96] Citing Geraghty v Minter (1979) 142 CLR 177, 180 ‑ 181 (Gibbs J).
[97] Andrews' Submissions footnote 16 to [10(d)].
It is not clear that any distinction derives solely from the value paid for goodwill.[98] In any event, the proposition that such clauses are to be read strictly may not assist the defendants. A stricter construction could limit the scope of the restraint, potentially saving it from invalidity.[99]
[98] See Carter on Contract (online version) [27‑330].
[99] See Just Group Ltd v Peck [2016] VSCA 334; (2016) 344 ALR 162 [38(b)].
In my view, at least in this case, determining what the clause actually restrains requires an orthodox process of construction.[100]
[100] See Birdanco Nominees Pty Ltd [2012] VSCA 64 [37] and Findex Group Limited v McKay [2020] FCAFC 182 [76] ‑ [87].
I consider that there is a prima facie case that cl 24.1 should be corrected as a matter of construction.
First, as written, the clause requires the Andrews to not 'carry on or be engaged in any Restricted Activity area'. 'Restricted Activity area' is not defined. On its face, and in the absence of a definition, the restraint makes no sense.
Second, and in any event, on its face, the clause requires the Andrews not to 'carry on or be engaged in' any Restricted Activity area (whatever 'Restricted Activity areas' are). Without correction, this would mean they could not do any activity in those areas (including run a hardware store, cook a meal, or play a game of cricket).
Third, cl 24 sets out three definitions '[f]or the purposes of this Clause 24.1'. One is a definition of 'Restricted Area'. Despite this, the phrase 'Restricted Area' does not appear in cl 24 (or indeed anywhere in the Affiliate Agreement).
The 'test for identifying an error in the language used by the parties is a stringent one of clear necessity so as to avoid absurdity'.[101] Nevertheless, having regard to these matters, I consider that there is a sufficient prima facie case (in the required sense) that cl 24.1 would be corrected at trial.[102] Furthermore, relevantly to the balance of convenience, I consider the likelihood of correction to be high.
[101] Gourmania Holdings (Mitchell JA & Hill J) [192].
[102] For an analogous example, see Just Group [40] ‑ [42], setting out the construction of the trial judge (which was not challenged in the appeal).

This conclusion makes it unnecessary to consider Nutrien's submission that the clause requires correction because it would be absurd if it imposed a worldwide restraint.

Is clause 24.1 unreasonable (and therefore void)?

The defendants submit that, even if corrected, cl 24.1 is void as it is unreasonable. They submit it goes beyond what is necessary for the adequate protection of Nutrien.
Nutrien submits that cl 24.1 is reasonable. However, it submits that, if an aspect of it is found to be unreasonable, it could be severed. The defendants submit that severance is not available. I will discuss the issue of severance after considering whether cl 24.1 is reasonable as written.
In determining whether a restraint is reasonable, it is necessary to examine the range of interests relied on by the restraining party said to require protection and to determine whether one or more of those interests are reasonable by reference to the interests of the parties to the agreement (and the interests of the public).[103]
[103] Carter on Contract (online version) [27-370] and [27-380].
The defendants do not suggest that, if the restraint is reasonable as between the parties, it is nevertheless void on the ground that it is 'injurious' to the public.[104]

The interests said to require protection

[104] See generally Carter on Contract (online version) [27-360].

Nutrien claims that it has three legitimate interests that require protection.[105]
[105] See ts 148 - 149.
First, Nutrien submits its financial position requires protection. Nutrien observes that there would be an adverse impact on its sales if an affiliate went to work for a competitor or set up a similar business nearby. Nutrien submits that the financial impact would come from the loss of customer connection.
The second interest sought to be protected by Nutrien is the resources, time, and effort that it put into the Andrews to enable them to develop the business within Quairading. Nutrien points out that it had supported the Andrews since 2008, providing them with IT support, head office support, products, and taking on the burden of the risk of financial products and stock.
The third interest sought to be protected is Nutrien's confidential information, which it has provided to the Andrews since 2008. Nutrien points out that that confidential information is not limited to existing business, but extends to forward planning and strategy. Nutrien says that the Andrews were, in effect, brought into Nutrien's business throughout the period in which they operated the Quairading Affiliate Store.

Financial interests/customer connection

Mr Lynn deposed:[106]
40.The towns in which many Nutrien affiliates operate have a cluster of farmers but otherwise have small populations and generally no new farmer-entrants due to the size of the existing farms.
41.The towns are generally surrounded by a limited number of farming families and landowners. Many of the farming families and landowners have owned or operated in the same region for many years if not generations. The longstanding and ongoing relationships between Nutrien and its customers in these towns are critically important to the ongoing, broader success of the Nutrien business, given Nutrien's investment in these remote regional affiliate locations.
42.Because of the small number of potential customers, the existing customer sales relationship opportunities are highly valued as they have been carefully cultivated by Nutrien over the years. The affiliates have been entrusted with these key customer relationships that are critical to the financial health of the affiliate location and supported by Nutrien to strengthen and deepen them.
43.Nutrien affiliates are placed in a special relationship of trust in respect of Nutrien's customers in the sense that new affiliates coming into longstanding Nutrien stores are able to obtain the benefit of the ongoing commercial relationships that have existed between customers for many years. This was in fact the situation that applied to the Andrews in Quairading back in 2008 when they became the replacement (new) affiliate in that location.
[106] Lynn Affidavit [40] - [43].
The Andrews submit that this evidence was admissible only to show that this is what Nutrien believed. They submit that Mr Lynn did not have the expertise to make these statements simply because he worked in the industry.[107]
[107] ts 84 - 85.
I do not accept that Mr Lynn 'simply worked in the industry'. He ran a Nutrien affiliate store at Bruce Rock from 1999 to 2011. Bruce Rock is the neighbouring town to Quairading. He then took up a role in Nutrien's corporate offices. In 2016, he commenced in his current role as the General Manager, Southern Division, West Region, for Nutrien.[108] Mr Lynn deposed that, during the period in which he owned the Bruce Rock store, he frequently travelled between Quairading and Bruce Rock. He said that, because of this, he was also in frequent contact with the affiliates of the Quairading Affiliate Store, and was familiar with the way the store operated.[109]
[108] Lynn Affidavit [10] - [14].
[109] Lynn Affidavit [50] - [52] and [64] - [68].
In my view, based on his affidavit, Mr Lynn has the necessary experience to make the statements extracted above.
Nutrien submits:[110]
When Nutrien establishes a shop in a rural area to sell its merchandise, it positions and supports its affiliate to best develop a relationship with the local community. Those loyal customer relationships are then passed between successive affiliates of the Nutrien store,[111] benefiting the new affiliate and Nutrien alike. That is significant for any business, but particularly Nutrien's operations in small country towns like Quairading.[112]
So, for example, when the Andrews took over the Nutrien store in Quairading, it may be inferred that they benefited from the loyal customer base previously built by Nutrien through Aaron Stone [of Blue Valley], the former affiliate in Quairading. The Andrews also benefited by Aaron Stone not taking away or undermining that loyal customer base upon his departure as the Nutrien affiliate.
[110] Nutrien's Submissions [41] - [42].
[111] Lynn Affidavit [39] - [44].
[112] Lynn Affidavit [41] - [42].
Nutrien submits that, given the circumstances deposed to by Mr Lynn, the customer relationships are of vital importance. It submits that there is, in effect, inertia in buying practices; that the customer relationships are 'sticky'. Its submissions can be summarised as follows:[113]
[113] See ts 69.
First, the products supplied by Nutrien's Agricultural Business are inputs into agricultural businesses in an agricultural area in the wheatbelt. These products are essential to the farmers' operations. The products are not discretionary products, like toys or clothes.
Second, the Quairading Affiliate Store operates in a small town,[114] not a metropolitan area where there may be many stores in close proximity which can cause customers to move away.
[114] This did not appear to be in dispute. See for example ts 119.
Third, the pool of customers is very small.[115]
[115] This did not appear to be in dispute. See for example ts 119.
For the purposes of the current application, I accept Mr Lynn's evidence as to the way in which customer relationships are established and maintained, and the significance of those relationships to Nutrien's operations in Quairading. I accept the relationships are, to adopt Nutrien's expression, 'sticky'.
Elders notes that both it and Nutrien are established brands. Elders submits, in effect, that I should infer that customers were attracted to the brand and not to the individual person selling the products.[116] I accept that it would be reasonable to infer that established brands may have an impact on customer behaviour. Whether that would be so in the context in this case, in a small country town, with 'sticky' customers, is the question. In any event, from the evidence currently available to me, I would infer that the customers were attracted, at least in part, to the person with whom they had established a relationship.
[116] ts 119 - 123.
Elders submits that the restraint cannot be justified as necessary to protect customer connection, in the circumstances that existed. It submits that the Andrews had a connection with the customers due to their pre‑existing strong links to the community, including that they had operated a hardware and logistics business out of the same premises as the Nutrien business, dealing with the same customers.[117] It submits that[118]
there is no evidence that suggests that the connections which [the Andrews] have with potential or existing customers of [Nutrien's Agricultural Business] were not their own relationships (rather than those of [Nutrien's Agricultural Business]), including as fellow members of the local community and customers of the hardware and logistics business.
[117] Fourth Defendant's Outline of Submissions filed 24 February 2023 (Elders' Submissions) [14].
[118] Elders' Submissions [15].
Nutrien points out that, if the customer connections were the Andrews' own relationships, rather than as a result of Nutrien's Agricultural Business, it was for the Andrews to adduce evidence of that. They did not.
The Andrews point out that they no longer have access to the records of the Quairading Affiliate Store, due to the restraints imposed in these proceedings.[119] I accept that. Nevertheless, the Andrews presumably retain the documents that relate to the Andrews Business. They may also have been able to give evidence from their own knowledge (and did not say that they could not).
[119] ts 99.
Further, the Andrews concede that they did not adduce any evidence as to how long they had lived in Quairading and whether they had operated a hardware store (or any other store) in Quairading prior to taking over the Quairading Affiliate Store.[120]
[120] ts 98.
In my view, on the current state of the evidence, any customer connections that the Andrews built up through personal connections or the Andrews Business cannot be separated from what was built up through Nutrien's Agricultural Business. The Andrews took over the Quairading Affiliate Store after it had been operated by Blue Valley from 1998 to 2008. When operated by Blue Valley, its principal business was selling Nutrien agricultural products, but it also sold some non‑agricultural products. It traded as Quairading Agri Services. The Andrews took over those operations, and traded under the same name, at the same location.[121] They took over the customers of that store. There is evidence that the number of customers of agricultural products in the area is small. Customer relationships are 'sticky'.
[121] Lynn Affidavit [53] ‑ [64].
Further, Nutrien does not have to establish that personal relationships and the Andrews Business made no contribution to the maintenance or establishment of the customer relationships.
I accept that Nutrien's financial interests required protection, justifying a restraint. This was so at the time the Affiliate Agreement was executed, and remains so.

Support to the Andrews

The second interest sought to be protected by Nutrien is the resources and time and effort that it put into the Andrews to enable them to develop the business within Quairading. Nutrien points out that it had supported the Andrews since 2008, providing them with IT support, head office support, products, and taking on the burden of the risk of financial products and stock for them.
The defendants did not contend that this was not a legitimate interest. I accept that it was.

Confidential information

Mr Lynn deposed that affiliates get access to Nutrien's confidential business information (such as pricing of Nutrien's products), Nutrien's customer lists, information on Nutrien's commercial strategy, customer purchasing information, and information as to Nutrien's future expansion plans.[122]
[122] Lynn Affidavit [36].
Elders submits that the restraint cannot be justified as necessary to protect confidential information. It submits that such information is already protected by cl 18 of the Affiliate Agreement, which prohibits the use of confidential information for a period of 10 years after the termination, or expiry, of the Affiliate Agreement.[123]
[123] Elders' Submissions [13].
Elders further submits that, in any event, information such as knowledge of local farmers and their seeding and growing practices are not necessarily a function of the Andrews' conduct of Nutrien's Agricultural Business pursuant to the Affiliate Agreement.[124] Mr Andrews deposes that:[125]
23.With respect to paragraph 138 of Lynn's affidavit I say:
(a)In my experience in providing seeding requirements in the Quairading area over 15 years I am aware that many clients have private consultants guiding them on what varieties suit the region;
(b)it is widely known by the competing Agricultural Services outlets who is growing what as this information is freely discussed by farmers, consultants and interested locals in the local hotel, social outings and community events;
(c)I have even had discussions with non-clients who are [sic] freely disclose what varieties they grow.
[124] Elders' Submissions [13].
[125] See Andrews Affidavit [23].
Nutrien accepts that the principal protection of its confidential information is in cl 18. It also accepts that the protection given by that clause is relevant to the assessment of what restraint of trade was reasonably necessary. However, Nutrien submits that a restraint of trade was still necessary to protect its confidential information. It submits:[126]
[T]here's also confidential information that's known now by the Andrews. So they know, for example, how Nutrien runs its business, what its price points are, what its profits differential might be on certain products. It … has been party to information about what products Nutrien might want to in the future market. All of those things are in the minds of the Andrews parties, and that's why a restraint of trade, working to prevent the key persons from undertaking business is important.
[126] ts 76.
I accept this.

Relevant factors

In determining whether a restraint is reasonable, the following factors may be relevant:[127]
[127] The first seven factors are listed in Carter on Contract (online version) [27‑380]. In relation to the last, see Stacks Taree Pty Ltd v Marshall [No 2] [2010] NSWSC 77 [44(e)].
1.the extent of the restraint;
2.the duration of the restraint;
3.the geographical area to which the restraint applies;
4.whether the restraint is to operate after the termination of any contract in which it is contained;
5.the benefits received by the covenantor in agreeing to the restraint;
6.the commercial setting of the agreement;
7.the relative bargaining power of the parties and whether the restraint is, in the circumstances, unconscionable; and
8.any contractual admissions.

The extent of the restrained activities

Elders notes that cl 24.1 is expressed in broad terms, including restraining the Andrews from directly or indirectly carrying on or being interested, engaged or involved in any business or undertaking with Elders of a like or similar kind to the Agricultural Business and from interfering with that business in any way.[128]
[128] Elders' Submissions [21].
In particular, Elders submits that the restraints prevent the Andrews from being interested in (even in a passive sense) the Elders Store, even if their activities are limited to participating in that part of the business that is concerned with hardware and logistics.[129] Elders submits that preventing the Andrews from having even a financial interest in the Elders agricultural business was not reasonably necessary to protect Nutrien's legitimate interests.[130]
[129] Elders' Submissions [22].
[130] ts 109 and ts 129 - 131.
Nutrien accepts that the phrase 'interested in' is broad. It submits, however, that it had a legitimate concern as to even a financial interest, given that Nutrien would, in effect, fund, resource, and train the affiliate. Nutrien points out that even a purely financial interest would give the Andrews an obvious incentive to ensure that a competitive business succeeds. Nutrien submits that it would be hard for the Andrews to compartmentalise the knowledge they had about Nutrien's business and competitive strategies that would be directly beneficial to a competitor. Nutrien further submits that, if that phrase (or any other aspect of cl 24.1) was considered to create a scope of restraint that was broader than was reasonably necessary, it could be severed.[131]
[131] ts 148.
I accept that there is a prima facie case that, at the time the Affiliate Agreement was entered into, it was necessary for the adequate protection of Nutrien's financial interests that the Andrews be restrained from having even a financial interest in a competing store. In 2018, when the Affiliate Agreement was executed, the objective intention of the parties (as shown by that agreement) was that the Andrews would continue to operate the Quairading Affiliate Store, and continue to do so in the manner described by Mr Lynn. That is, the objective intention of the parties was that the Quairading Affiliate Store would continue to operate under the 'affiliate model'. Nutrien would continue to support the Andrews, provide financial incentives, and bear all the risk.
In my view, there is a prima facie case that the extent of the restrained activities was, at the time the Affiliate Agreement was executed, reasonable. I will later consider whether, having regard to each of the factors, there is a prima facie case that the totality of the restraint was reasonable.

The duration of the restraint

The Restraint Period is defined to mean:[132]
(i)three (3) years;
(ii)two (2) years;
(iii)one (1) year; or
(iv)six (6) months,
whichever period is the greatest.
[132] Affiliate Agreement cl 24.1 (Lynn Affidavit page 128).
The defendants submit that three years is unreasonable.
Elders notes that the Affiliate Agreement was for a three‑year term. It submits that, at the time the Affiliate Agreement was entered into in 2018, the parties would not necessarily have foreseen that it would operate past that three‑year period.[133] This is plainly correct. However, in 2018, the parties had already been in an affiliate arrangement for 10 years. In my view, while the parties in 2018 may not have foreseen that the new agreement would operate past that three‑year period, it is reasonable to infer that they would have thought it was likely.
[133] ts 125.
As noted earlier, Nutrien submits that the customer relations were of vital importance due to the nature of the business, the location of the Quairading Affiliate Store in a small town, the small pool of customers, and the 'sticky' nature of the customer relations.[134] Nutrien submits that, in those circumstances, three years is not unreasonable.[135]
[134] See the discussion under the sub‑heading 'Financial interests/customer connections'.
[135] See ts 69.
I have accepted Nutrien's submissions as to those circumstances and the importance of the customer relations.[136] Having regard to those matters, I consider that there is a prima facie case that a restraint period of three years was reasonable. I will later consider whether, having regard to each of the factors, there is a prima facie case that the totality of the restraint was reasonable.

The geographical area to which the restraint applies

[136] See the discussion under the sub‑heading 'Financial interests/customer connections'.

The Restraint Area is defined to mean the area within a radius of:[137]
(i)150 kilometers of the Premises;
(ii)100 kilometers of the Premises;
(iii)50 kilometers of the Premises; or
(iv)25 kilometers of the Premises,
whichever area is the largest.
[137] Affiliate Agreement cl 24.1 (Lynn Affidavit page 128).

Elders submits that the geographical area is unreasonable. Elders refers, in particular, to the number of other outlets within the larger of these areas.
The Map shows the number of outlets today, not at the time the Affiliate Agreement was entered into. In any event, I consider that the presence of competitors in the larger areas is of limited relevance to this specific issue. The issue here is whether it was reasonable for Nutrien to protect its existing customer connections by restraining the Andrews from engaging in Restricted Activity in the Restraint Area.
Nutrien submits that, for the same reasons as it contends that the duration was reasonable, the area was reasonable. Again, I accept Nutrien's submissions as to the circumstances and the importance of customer relations.[138]
[138] See the discussion under the sub-heading 'Financial interests/customer connections'.
Having regard to those matters, I consider that there is a prima facie case that a restraint area of 150 km was reasonable. I observe, however, that the strength of that prima facie case is weak in relation to the first two areas, and not strong in relation to the third. I will later consider whether, having regard to each of the factors, there is a prima facie case that the totality of the restraint was reasonable.

Benefits received by the Andrews in agreeing to the restraint

As noted earlier, Nutrien submits that it may be inferred that the Andrews benefited from the loyal customer base previously built by Nutrien through Blue Valley (the former affiliate in Quairading) and from Blue Valley not taking away or undermining that loyal customer base upon its departure as the Nutrien affiliate.
Nutrien further notes that affiliates obtain many benefits from operating under the affiliate model, and receive a higher remuneration than they would have achieved as employees of a Nutrien store.
The defendants did not seek to contest these points.

The respective bargaining power

The seventh factor is the relative bargaining power of the parties and whether the restraint was, in the circumstances, unconscionable.
During the hearing, Elders asserted that the balance was in Nutrien's favour.[139] When pressed on this, Elders submitted that the Affiliate Agreement was presented to the Andrews on a 'take-it-or leave it' basis, and that this showed unequal bargaining power. When asked why that would follow in the context of a commercial arrangement, and in the absence of any suggestion that the Andrews had less freedom than Nutrien to walk away from the deal,[140] Elders advised that it did not have any authority to support its submission, but would seek to find it.[141] This was one of the topics on which I gave Elders leave to file further submissions. In those further submissions, Elders said that it made no further submissions with respect to this issue.[142] I infer from this that Elders withdrew the submission.
[139] ts 126 - 127.
[140] And see, as cited by Nutrien at ts 143, Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd (1973) 133 CLR 288, 320. See also Extraman (NT) Pty Ltd v Blenkinship [2008] NTSC 31; (2008) 23 NTLR 77 [79].
[141] ts 127.
[142] Fourth Defendant's Further Written Submissions (Elders' Further Submissions) [11].
In my view, there is nothing in the evidence to suggest any inequality in bargaining power.

Contractual admission

In cl 24.2, the Andrews acknowledged that:
(a)the restraint in cl 24.1 was necessary and no greater than reasonably required to protect Nutrien's legitimate interests; and
(b)Nutrien's grant of affiliate rights represented valuable consideration for the restraint in cl 24.1.
Elders submits that the undoubtedly poor drafting of cl 24.1 demonstrates that the clause was not the focus of the parties. It submits that, therefore, the Andrews' acknowledgements in cl 24.2 'ring hollow'.[143]
[143] ts 126.
I note that the parties did not address whether the rest of the Affiliate Agreement was better drafted. In any event, even if cl 24.1 was not the focus of the parties, it plainly sought to impose a restraint on the Andrews. The objective intention of the parties was to provide for such restraint and to acknowledge it was reasonable and supported by consideration. While the words in cl 24.2 are not conclusive of either matter, they are of considerable weight.[144]

Conclusion on reasonableness

[144] Stacks Taree [44(e)]. See also Habitat 1 Pty Ltd v Formby (No 2) [2017] WASC 331 [74] and [182] and Vision Eye Institute Ltd v Kitchen [2014] QSC 260 [266].

Having regard to the above factors, I consider that Nutrien has established a prima facie case (in the required sense) that the restraint was reasonable.
Clause 24.1 seeks to restrain the Andrews from engaging in the Restricted Activities for three years within an area of 150 km. It is, undoubtedly, a significant restraint. However, in the circumstances of this case, I consider that there is a prima facie case that it went no further than was reasonably necessary to protect Nutrien's legitimate interests. In particular, the location of the Quairading Affiliate Store, the nature of the business, and the nature of the customer relations, justified a significant restraint. Further, the Andrews acknowledged that the restraint was reasonable.
Whether Nutrien will ultimately succeed in establishing that such a restraint was justified is a question for another day. It is conceivable that the parties will adduce further evidence at trial which may be relevant to the assessment. While there are strict limits on the types of evidence which is admissible in the construction of a contract, and the purposes to which such evidence may be put,[145] it remains a possibility.

Is clause 24.1 uncertain (and therefore void)?

[145] See Black Box Control [42(3)-(5), (7) and (8)].

During the hearing, Elders acknowledged that unreasonable restraint clauses that set out alternative levels of scope in different respects (cascading clauses) may be saved by severing those that are too wide. Elders submitted, however, that, unless there was an express statement that each alternative was to operate as a separate restraint (Express Statement), so as to demonstrate that the parties intended the clause to be severable in that way, it would be 'troubling' to construe a cascading clause as imposing separate restraints. I asked whether there were any authorities in which it had been said that, because the cascading clause did not contain an Express Statement, it was not severable. This was one of the topics on which I gave Elders leave to file further submissions.[146]
[146] ts 132 ‑ 133. The Andrews made a similar submission - see ts 100.
It was not entirely clear from Elders' further submissions whether it maintained its contention that, unless a cascading clause contains an Express Statement, it will be construed as a single restraint. Elders may have been contending only that it is likely that a cascading clause without an Express Statement would be construed as imposing a single restraint. Elders submits that such a clause would be uncertain.[147]
[147] Compare Elders' Further Submissions [12] ‑ [13] and [22] with the second sentence in [15]. I note that the cases cited in the footnote to [15] do not support the proposition that a clause 'must state' this.
Elders cited a number of cases in which the presence of an Express Statement was significant. None of those cases are authority for the proposition that the absence of an Express Statement means that a cascading clause will inevitably be invalid. Each turned on the analysis of the particular clauses in each case.
I accept that an Express Statement will make it clear that the parties intended a cascading clause to operate as separate restraints. However, the absence of an Express Statement cannot be determinative of the opposite. It remains a question of the proper construction of the contract as a whole, to objectively determine the parties' intention.
In my view, cl 24.1, read with cl 21.11, was intended to set out separate restraints, for the following reasons.
First, cl 24.1 uses the disjunctive 'or' in the definitions of Restraint Period and Restraint Area. The definitions conclude with 'whichever period is the greatest' and 'whichever area is the largest' respectively. This suggests that the parties understood that what would be the greatest reasonable period could differ depending on the associated Restraint Area and, possibly, the Restricted Activity. Similarly, it suggests that the parties understood that what would be the largest reasonable area would depend on the associated Restraint Period and, possibly, the Restricted Activity. The inclusion of 'whichever period is the greatest' and 'whichever area is the largest' in the two definitions suggests that the parties were seeking to capture the greatest period that would be reasonable in each combination and the largest area that would be reasonable in each combination.

Second, the chapeau of the definition of Restricted Activity states 'any one or more of' before listing six paragraphs of activities. In my view, the intention was to impose a separate restraint in relation to each of the six activities, to be individually combined with the period and area variables.
Third, if taken as separate restraints, each is capable of being understood and each can be complied with without breaching any of the others.[148]
[148] Hanna v OAMPS Insurance Brokers Ltd [2010] NSWCA 267 [11] ‑ [12].
Fourth, cl 21.11 supports a conclusion that the parties intended that cl 24.1 would impose separate restraints, and that any restraints that went beyond what was reasonable were to be severed.[149]
[149] And see Rentokil Pty Ltd v Lee (1995) 66 SASR 301, 306 ‑ 307 (Doyle CJ), 327 (Matheson J) and 341 (Debelle J).
I consider that cl 24.1 imposes separate and cumulative restraints. The Andrews agreed not to do that which was restrained by each alternative.
In its further submissions, Elders did not contend that cl 24.1 would be uncertain if it imposes separate restraints.[150]

The number of permutations

[150] Elders' Further Submissions on uncertainty dealt with restraint clauses that imposed a single covenant. See [22] - [25].

In its further submissions, Elders submitted that cl 24.1 is unreasonable due to the number of alternatives. Elders noted that, if the variables are numerous and the combination of variables appear mechanical and indiscriminate, this is an indication that a restraint clause is unreasonable[151] (Numerous Variables Contention). In support, Elders cited paragraph 39(c)(ii) of Just Group Ltd v Peck.[152] Having regard to the contents of that passage, I would interpret the Numerous Variables Contention as a contention that severance is not available if the variables are numerous and the combination of variables appear mechanical and indiscriminate.
[151] Elders' Further Submissions [26].
[152] Just Group [39(c)(ii)].
In Just Group, the Court said (citations omitted):
39.If a restraint clause is 'not really a single covenant but is in effect a combination of several distinct covenants', some of which are too wide, the invalid covenants may be severed subject to the following conditions:
…
(c)Whether it is based on the principle of uncertainty, or the public policy to protect employees, or that 'it is for the parties to make contracts, not the courts', courts have demonstrated reluctance to engage in 'curial disentanglement' and sever the unenforceable parts of unreasonably wide restraint clauses if the clause is not a genuine attempt to establish reasonable protection for the legitimate interests of the employer. The following factors indicate that the restraint clauses of the latter kind are unreasonable:
(i)If the restraint clauses include patently unjustifiable restraints such as might intimidate the employee.
(ii)If the restraint clauses are in a standard form.
(ii)If the variables are numerous and the combination of variables appear mechanical and indiscriminate.
However, the application of these considerations is subject to the court giving 'appropriate attention to the intentions of the parties' objectively assessed at the time of the contract.
This passage was endorsed by the Full Court of the Federal Court in Findex Group Limited v McKay.[153]
[153] Findex Group [144] and [147].
The Numerous Variables Contention was not raised in the hearing or in the written submissions filed prior to the hearing. It was raised as an alternative argument in a single paragraph in the further submissions filed by Elders after the hearing.[154] Although the plaintiff replied to those submissions (and replied to that paragraph),[155] it is plain that the issue has not been the subject of detailed analysis or submission by any of the parties. Given that, it is not appropriate that I do more than express a very preliminary view.
[154] Elders' Further Submissions [26].
[155] Submissions in Response to Fourth Defendant's Further Written Submissions filed 8 March 2023 [22] ‑ [24].
In Sear v Invocare Australia Pty Ltd,[156] Le Miere J said:
[156] Sear v Invocare Australia Pty Ltd [2007] WASC 30 [40] - [41].
40In Lloyds Ships Holdings Pty Ltd v Davros Pty Ltd (supra) Spender J recognised the existence of a separate objection, grounded in public policy and based on the reasoning in Davies v Davies against a covenant which effectively left it to the courts to frame a restraint. Spender J said at 660 - 661 that the clause before him, unlike the clauses in Davies v Davies and Austra Tanks:
' … does not expressly define the covenantors' obligations according to what is enforceable or reasonable. One might ask, however, whether a clause which envisages the severance of those out of very many separate covenants which are held to be unenforceable as an unreasonable restraint of trade, is any less objectionable than a clause which defines an obligation in terms of reasonableness or enforceability.
In JQAT v Storm (supra) Connolly J rejected a submission by the respondent in that case that cll 6.2 and 6.3 in effect asked the court to choose which combination was permissible and then to apply it. His Honour reiterated his view that the clauses operated cumulatively, subject to questions of unlawful restraint of trade. He observed (unreported, page 6 of transcript): "However, should the court be of the view that in any respect there is an unlawful restraint of trade, the parties have agreed that severance of the illegal features will not make a new contract for them and that they will be bound by so much of the covenants as remains". The judgment of Connolly J suggests that, provided the parties have agreed to sever those covenants that constitute an unreasonable restraint of trade, then the paring down of the covenantor's obligation to what the court determines to be not unreasonable, does not amount to having the court fix the limits of the restraint. That conclusion may have the merit of not permitting a covenantor to escape its obligations in a case such as JQAT v Storm, where the total restraint imposed by the 18 combinations involved a three month restraint in Queensland and New South Wales on the specified conduct. It seems to me to be very much a question of degree and dependant on the parameters of each such attempt, whether in truth the court is being asked to choose the extent of the restraint.
In my opinion, the question whether a technique of defining covenants in restraint of trade by combining different variables of conduct, time and space, and providing that each of the covenants so 'generated' is subject to severance, is successful in defining enforceable restraints or is unsuccessful in so doing, comes down to whether the exercise amounts to a genuine attempt to define the covenantee's need for protection, with the agreement as to severance as a precaution against the 'all or nothing' nature of the court's tests for reasonableness, or whether the exercise is simply one where the parties have left to the court the task of making their contract for them.
One might think the more numerous the variables, and the more mechanical and indiscriminate the combination of variables, the more likely would be a conclusion that the exercise is of the latter kind.'
41Spender J referred to two justifications for the objection to the enforceability of the covenant which he had discussed. The first is the basic view that it is for the parties to make their contracts not the courts. The second is the terror and expense of litigation which confronts a person who enters into a restraint clause with multiple cumulative and overlapping combinations of restraints. A third consideration is that the number of permutations that the Court is required to consider should not be so great as to place an oppressive burden on the Court.

Clause 24.1 contains three categories of variables - four Restraint Periods, four Restraint Areas and six Restricted Activities. Elders postulated that, if cl 24.1 imposed separate restraints, there would be 1024 restraints.[157] This was based on the assumption that cl 24.1 should be construed as requiring the Restricted Activities to themselves be combined in every possible way with each other, as well as with the other variables. If, instead, cl 24.1 is not so construed, the number would be 96[158] (being the combination arising from four periods, four areas and six activities).
[157] Elders' Further Submissions [24].
[158] In Lloyds Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505, a covenant with 120 combinations was upheld.
I query whether Elders' assumption is correct.[159] If the Restricted Activities were themselves to be combined in every possible way with each other as well as with the other variables, the resulting alternatives would entirely duplicate combinations of restraints imposed in relation to a single Restricted Activity combined with each of the other two variables. In my view, there is an argument that the parties would not have intended the clause to operate in an entirely superfluous way.[160]
[159] By way of example, see Extraman [43] ‑ [46], in which the court considered the proper construction of the clause in determining the number of alternatives.
[160] See Findex [83] ‑ [87], [98] ‑ [100] and [112] ‑ [113].
If Elders' assumption is correct, the number of combinations arising from cl 24.1 would give reason to pause. There would be merit in the contention that cl 24.1 did not reflect a genuine attempt to define Nutrien's need for protection. In addition, it would be arguable that the number of permutations would place an oppressive burden on the court.
As I have said, however, it is not appropriate that I do more than express a very preliminary view. My preliminary view is that, if Elders' assumption is correct, this would be a significant weakness in the plaintiff's case. Given my doubts as to Elders' assumption, and the preliminary nature of my views, I do not consider that this issue means that Nutrien has failed to establish that it has a prima facie case in the required sense.

Can any unreasonable restraints be severed?

Nutrien submits that, to the extent the scope of cl 24.1 goes beyond what is reasonable to protect its interests, the offending aspect(s) can be severed.
The defendants submit that cl 24.1 cannot be saved by severance.
Given the conclusions I have expressed, it is unnecessary to analyse this issue in detail. I simply make the following observations.
The legal principles which determine whether covenants can be severed from a restraint clause were recently summarised by the Full Court of the Federal Court in Findex Group.[161]

Single restraint?

[161] Findex Group [144] ‑ [147]. See also Habitat 1 [169] ‑ [181].

I earlier explained why I consider that cl 24.1 did not impose a single restraint. Accordingly, I rejected the contention that severance is not available because cl 24.1 imposes a single restraint.

Scope of clause 21.11

It will be recalled that cl 21.11 of the Affiliate Agreement provides:
If any part of this agreement is or becomes illegal, invalid or unenforceable in any relevant jurisdiction, the legality, validity or enforceability of the remainder of this agreement will not be affected, and this agreement will be read as if the offending part had been deleted in that jurisdiction only.
The Andrews submit that the word 'part' in cl 21.11 may mean that it is only possible to sever entire clauses.[162] It is fair to say that this submission was not strenuously pressed. I do not accept it. There is no reason to construe cl 21.11 in that way.[163]

Cannot sever words outside of an alternative?

[162] ts 100.

[163] And see Rentokil (306 ‑ 307) (Doyle CJ), 327 (Matheson J) and 341 (Debelle J).

During the hearing, Elders submitted that the clause cannot be saved by severance[164]
because the conclusion of each definition stating with the words 'the greatest' with respect to the alternatives in each would have to be deleted, i.e., words would be excised other than those words relating to an alternative.
[164] Elders' Submissions [25]. See also ts 132 and ts 134.
Elders submitted that those concluding words must mean that only the greatest period and largest area was intended to apply.[165]
[165] ts 132.
I earlier set out my view as to how the concluding words operate.[166] In short, I consider that the parties were seeking to capture the greatest period that would be reasonable in each combination and the largest area that would be reasonable in each combination. If that is right, it would only be necessary to consider whether these words could be severed if only the shortest period and smallest area of restraint remained after unreasonable permutations had been severed. It would only be in such a case that the words would have no work to do.
[166] See under the heading 'Is clause 24.1 uncertain (and therefore void)?'
In this respect, Elders submitted that[167]
the authorities don't appear to support taking a step which would involve adding, deleting words, which are not one of the combinations or alternatives. So there's a difference between looking to sever, say, three years or 150 kilometres as opposed to seeking to delete whichever period is the greatest or whichever area is the largest.
[167] ts 134.
This was another topic on which I gave Elders leave to file further submissions, to identify any authority for this proposition.
In Elders' further submissions, it implicitly acknowledged that its oral submission had been incorrect. It conceded that parts of a clause may be severed,[168] including words that are not one of the alternatives.[169] It said (citations omitted):[170]
A part of a clause which is not an alternative may be struck out, but only if the words being considered are sufficiently separate to the rest of the clause and the severance of the words will not change the substance of the original clause and the contract.
[168] Elders' Further Submissions [27], citing Habitat 1 [170]. In that case, Banks‑Smith J severed the words 'and Melbourne' from the smallest of the restraint areas defined as 'Perth and Melbourne' - see [29] and [179] ‑ [180].
[169] Elders' Further Submissions [28], citing, among other cases, Findex [149].
[170] Elders' Further Submissions [28].
Elders continued:[171]
The words 'whichever period is greatest' and 'whichever area is the largest' apply to and qualify the entirety of the alternatives within the definition of Restraint Period and Restraint Area. They are not sufficiently separate such that they can be severed.
[171] Elders' Further Submissions [30].
I do not accept this. In my view, the words 'whichever period is the greatest' and 'whichever area is the largest' are sufficiently separate. In any event, I doubt that they need to be severed. At most, if only the shortest period and smallest area of restraint remained, the words would have no work to do.

Uncertainty

Elders further submitted that cl 21.11 should not be construed as permitting aspects of cl 24.1 to be severed as it would lead to uncertainty. It submitted that the parties would not know, at the time of executing the contract, what the Andrews would be restrained from doing. It submitted that the answer would turn on a future determination by a court as to the reasonableness of the restraints sought to be imposed by any of the alternatives.[172]
[172] ts 135.
When pressed on why that uncertainty would be any different to the uncertainty of a cascading clause, Elders submitted that there is authority that, where a cascading clause contains an Express Statement (that the clauses are to operate as separate restraints), the clause would not be uncertain.[173] This was one of the topics on which I gave Elders leave to file further submissions.
[173] ts 136.
Having regard to Elders' further submissions, I would interpret its oral submission as meaning that, where a restraint clause seeks to impose a single covenant, the parties would not know, at the time of executing the contract, what the person to be restrained would be restrained from doing. As I have concluded that cl 24.1 imposed separate restraints, this does not arise.

Does the balance of convenience favour the grant of the injunction?

As noted earlier, the second inquiry is whether the inconvenience or injury that the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury that the defendants would suffer if an injunction were granted. Relevant to the balance of convenience is whether, if an injunction is not granted, the plaintiff would suffer an injury that could not properly be compensated in damages.

What injury would Nutrien suffer if an injunction were not granted?

The Andrews submit that it is not open to me to infer that the presence of the Andrews in the Elders Store would contribute to the loss of the customers from Nutrien to Elders. They submit, in effect, that any loss of customers could be entirely attributed to the fact that there was a competing store.[174] I do not accept this, having regard to the circumstances of this case.[175]
[174] ts 85 - 86.
[175] See the discussion under the sub-heading 'Financial interests/customer connections'.
The Andrews further submit that the plaintiff has a clear means of identifying and assessing loss if a breach is established.[176]
[176] Andrews' Submissions [11].
Elders submits:[177]
The plaintiff can quantify any downturn in revenue and, having regard to the regime which has been put in place in accordance with paragraphs 8 to 15 of the Order, seek to identify any contraventions of the Affiliate Agreement in respect of Confidential Information and attribute loss to such contraventions (or seek gain based damages for the use of Confidential Information).
[177] Elders' Submissions [28].
Nutrien submits that damages are an inadequate remedy. Nutrien submits:[178]
First, it is clear that Elders and the Andrews defendants intend to trade in competition with Nutrien's new affiliate. The Andrews defendants have frankly admitted that Elders, through its new store, is to operate in direct competition with Nutrien in Quairading.[179]
Back in November 2022, at the same time the Andrews defendants sought to terminate the Affiliate Agreement with Nutrien, the Andrews defendants were sending letters to their clients encouraging their custom at the new Elders store.
The letter stated that 'Quairading Agri Services will still be open for business as usual and we have every intention of being able to supply clients with a complete range of products and services as we always have tried to do.'[180]
This is the very consequence that cl 24.1 attempts to avoid and this consequence will occur if the injunction is not granted.
Secondly, the loss of custom to the Elders store must be stemmed before the damage compounds. If customers begin frequenting the Elders store, those customers may ultimately be hard to entice back to the Nutrien store if and when the relief Nutrien seeks is ultimately granted.
Thirdly, given the Nutrien store is proposed to continue to operate with a new affiliate, it is unclear how long it can continue to trade while Elders is running a store in direct competition just down the road. It would be unreasonable to wait for the complete resolution of these proceedings and if the matter were determined in Nutrien's favour, to simply award Nutrien damages representing the lost profit. It is difficult to predict whether the new affiliate will have successfully continued to operate the Nutrien store while these proceedings are on foot and while the Elders store operates.
[178] Nutrien's Submissions [49] - [55].
[179] Ford Affidavit, Attachment PHF‑7, page 30 [42].
[180] Lynn Affidavit, Attachment JRL‑14, page 177.
I accept Nutrien's submissions. In particular, if customers begin frequenting the Elders Store, those customers may ultimately be hard to entice back to the Quairading Affiliate Store if the relief Nutrien seeks is ultimately granted. It is a small town, with a relatively small number of customers, and customer relationships are 'sticky'. Further, if customers are lost, the new affiliate, an innocent party, may not survive.
Nutrien's loss may be very difficult to compensate.[181]

What injury would the defendants suffer if an injunction were granted?

[181] And see Emeco International Pty Ltd v O'Shea [2012] WASC 282 [20] ‑ [22] (Edelman J), cited in North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [2023] WASC 73 [45].

Mr Andrews has deposed that, if the Andrews are unable to carry on the Restricted Activities, it may be impossible for them to achieve the Earn Out payments which they would be entitled to if sufficient products were sold in the Elders' Store.
Mr Andrews deposes that it would be difficult to quantify that loss.[182] The Andrews submit that such a loss would be difficult to quantify (if at all).[183]
[182] Andrews Affidavit [27] - [30].
[183] Andrews' Submissions [11] - [12]
Nutrien submits that it would not be particularly difficult.
The Elders Agreement provided a mechanism by which the Earn Out amounts could be calculated.[184] A cap was fixed for the Earn Out amount for the first and second year. The amounts of the caps are confidential, but are significant.
[184] Clause 5 of the Elders Agreement (Chapman Affidavit pages 15 - 16).
It appears that the only input that would not be known, in assessing what the Earn Out amount would have been but for an injunction, is the earnings. Nutrien submits that it is reasonable to expect that both the Andrews and Elders made predictions about what they would be able to earn in Quairading before entering into the Elders Agreement, and before agreeing the completion payments and Earn Out formula.
The Andrews point out that those predictions, if made, could only have been predictions. This was a new business.[185] The Andrews further point out that, given the nature of the business and the size of the town, experts may find it hard to find comparable data on which to base opinions as to the loss.[186]
[185] ts 78.
[186] ts 79.
I accept that any predictions would have been only predictions. I also accept that experts may find it hard to find comparable data. I accept that the assessment may not be simple.
That said, I consider that it is likely to be much less difficult to assess the Andrews' loss than to assess Nutrien's loss. With the former, the court would be seeking to assess what the Earn Out amount would have been but for an injunction. In assessing Nutrien's loss, the court may be asked to determine the cause of any lost customers, whether lost customers might be won back and, if so, when that might be. Further, if the Quairading Affiliate Store failed, the court may be asked to assess the loss arising from that.
Further, there is no evidence that the Andrews would suffer any significant detriment caused by any loss of Earn Out payments. There is no evidence that the Andrews would lose their home or business or be unable to meet their financial obligations. There is no evidence that they would be left in a financially precarious position.
Nutrien has provided the customary undertaking as to damages.
The Andrews submit that I can infer that Nutrien has more financial resources than they do.[187] I accept that. However, in the circumstances of this case, I do not consider that to be of any significant weight. I am not asked to balance up irreparable and significant damage to opposing parties. As I have said, there is nothing to suggest that the Andrews will suffer any hardship or irremediable damage if restrained until the issue is resolved at trial.
[187] ts 77 - 80.
Elders submits:[188]
In contrast, the first to third defendants would, by the restraints, be deprived of the opportunity to effectively work anywhere in the vicinity of their home for up to three years or even to be passively interested in a business of the kind operated by the fourth defendant.
[188] Elders' Submissions [28].
The Andrews themselves did not assert that they would suffer from being prevented from working in, or being interested in, the business of supplying agricultural products, beyond the risk of losing the Earn Out payments. In those circumstances, I do not accept Elders' submission.
Elders submits:[189]
Damages likely to be suffered by the fourth defendant arising from the impediment to the participation of the first to third defendants in its business by virtue of the restraint will be more challenging to quantify.
[189] Elders' Submissions [29].
Elders accepted that, if the presence of the Andrews in the Elders Store would not draw customers of agricultural products away from the Quairading Affiliate Store, they would suffer no loss if the Andrews were restrained from being in the Elders Store.[190] A significant component of Elders' submissions in opposing the reasonableness of the restraint clause was that there was no reason to suppose that the presence of the Andrews in the Elders Store would draw customers of agricultural products away from the Quairading Affiliate Store.
[190] ts 137.
In my view, any difficulty in quantifying damage to Elders is of little weight in the balance. As with the loss to the Andrews, it is something that a court can assess, even if difficult.

Other factors

Nutrien raised two further matters.
First, if cl 24.1 is enforceable, the Andrews will be in breach of that clause if the injunction is not granted. That is, this is not a case where there is doubt as to whether the conduct sought to be restrained by an injunction would be captured by the relevant contractual provision if it was valid.
The Andrews did not challenge this.[191]
[191] See ts 90 ‑ 91.
Second, this is not a case of restraining an unsophisticated, innocent or ignorant party. The evidence indicates that the Andrews were well aware of cl 24.1 before deciding to sever their relationship with Nutrien and before entering into the Elders Agreement. The Andrews chose to enter into the Elders Agreement and chose to take the risk that cl 24.1 would be found to be enforceable.[192]
[192] Supplementary Outline of Submissions in support of Plaintiff's Application for Interlocutory Injunction filed 24 February 2023 (Nutrien's Further Submissions) [15].
The Andrews did not challenge this.[193]
[193] See ts 101.
Nutrien points out that, if the Andrews suffer a loss by being restrained until the issue has been decided, this will be a direct result of having agreed to the terms of the Affiliate Agreement with Nutrien and then electing to enter into an agreement with Elders in full knowledge of cl 24.1.
I accept this submission.

Conclusion

In my view, the balance of convenience is in Nutrien's favour.
If an injunction is refused, Nutrien's loss is likely to be unable to be properly compensated in damages.
There is nothing to suggest that the Andrews will suffer any hardship or irremediable damage if restrained until the issue is resolved at trial. Elders did not, of course, suggest that its loss could not be adequately compensated by damages.
Nutrien has provided the usual undertaking as to damages.

Summary

For the reasons given above, I consider that Nutrien has shown a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. Nutrien has established a prima facie case that cl 24.1 is enforceable. An injunction would prevent the Andrews from acting in breach of that clause.
I consider that the injury Nutrien would be likely to suffer if an injunction were refused outweighs the injury that the defendants would suffer if an injunction were granted. In my view, it would not be just to confine Nutrien to a remedy in damages.

Orders

Accordingly, I consider that the interim injunction should remain in place until after the trial in this matter or further order. I will hear from the parties as to the form of the final orders and as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
27 MARCH 2023