Paramount Haulage Pty Ltd v Farooq

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   PARAMOUNT HAULAGE PTY LTD -v- FAROOQ [2023] WASC 367

CORAM:   LUNDBERG J

HEARD:   26 SEPTEMBER 2023

DELIVERED          :   28 SEPTEMBER 2023

FILE NO/S:   CIV 1401 of 2023

BETWEEN:   PARAMOUNT HAULAGE PTY LTD

Plaintiff

AND

UMAR FAROOQ

First Defendant

ANAM AHMED

Second Defendant

BURK FUEL DISTRIBUTORS PTY LTD

Third Defendant

BURK PTY LTD

Fourth Defendant

BURK FUEL PTY LTD

Fifth Defendant

BURK HOLDINGS PTY LTD

Sixth Defendant

BURK RETAIL PTY LTD

Seventh Defendant

UMAR FAROOQ HOLDINGS PTY LTD

Eighth Defendant


Catchwords:

Practice and procedure - Summary judgment sought by plaintiff - Declarations sought as to construction and breach of long-term Fuel Transportation Agreement - Plaintiff pleads that the exclusivity granted by the agreement precluded counterparties from performing services themselves - Whether agreement repudiated by plaintiff - Dependency of pricing clause and exclusivity clause - Disputed questions of fact - Whether relief has utility - Some other reason for case to be tried - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 14 r 1(1), O 14 r 3(1)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff : Mr A J Tharby
First Defendant : Mr R J Price
Second Defendant : Mr R J Price
Third Defendant : No appearance
Fourth Defendant : Mr R J Price
Fifth Defendant : Mr R J Price
Sixth Defendant : Mr R J Price
Seventh Defendant : Mr R J Price
Eighth Defendant : Mr R J Price

Solicitors:

Plaintiff : Bennett
First Defendant : P A Martino
Second Defendant : P A Martino
Third Defendant : No appearance
Fourth Defendant : P A Martino
Fifth Defendant : P A Martino
Sixth Defendant : P A Martino
Seventh Defendant : P A Martino
Eighth Defendant : P A Martino

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

Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) [1993] 1 Lloyd's Rep 397

Casella v Hewitt [2008] WASCA 13; (2008) 36 WAR 1

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2013] VSC 614

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [No 2] [2012] WASCA 27

Foran v Wight (1989) 168 CLR 385

Geraldton Building Co Pty Ltd v Christmas Island Resort Pty Ltd (1992) 11 WAR 40

Helmers v Como [2014] WASC 394

Lavigne v Kumar [2020] NSWSC 1120

NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107

Paragon Finance plc v Nash [2002] 1 WLR 685

Sharjade Pty Ltd v Commonwealth [2009] NSWCA 373

Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14

Table of Contents

A.     Introduction

B.      Relevant materials

C.     Factual background and primary issues

D.     Relevant principles

E.      Disposition

Procedural requirements

Issues or questions in dispute which ought to be tried

Broader matters

Conclusion

F.      Orders

ATTACHMENT A

LUNDBERG J:

A.     Introduction

  1. These reasons concern a summary judgment…

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Details
Case
[2023] WASC 367
Decision Date

CaseChat Overview and Summary

The matter before the court involved Paramount Haulage Pty Ltd, a plaintiff, and Farooq, a defendant. The dispute centred around a long-term Fuel Transportation Agreement, with Paramount seeking declarations regarding the construction and alleged breach of the agreement. Paramount argued that the exclusivity clause in the agreement precluded Farooq from performing certain services himself. The plaintiff sought a summary judgment, but the defendant contested the claim, asserting various defences and raising questions of fact that needed to be resolved. The court was tasked with determining whether the case could be resolved via summary judgment or if it required a full trial.

The primary legal issue before the court was whether the Fuel Transportation Agreement was repudiated by Paramount, and if so, whether this rendered the exclusivity clause unenforceable. Paramount argued that the exclusivity clause was dependent on the pricing clause, which had been rendered ineffective due to the alleged repudiation. The defendant contended that the exclusivity clause was independent and remained valid. The court also had to consider whether the disputed questions of fact necessitated a full trial and if the relief sought by Paramount had utility. Furthermore, the court examined if there was some other reason why the case should proceed to a full trial.

The court found that the case involved disputed questions of fact that could not be resolved on a summary judgment application. The dependency of the exclusivity clause on the pricing clause, the alleged repudiation by Paramount, and the utility of the relief sought all pointed towards the need for a full trial. The court concluded that the case should not be decided on the basis of a summary judgment and that there were sufficient grounds for the matter to proceed to trial.

The court ordered that the application for summary judgment be dismissed. The case was to proceed to a full trial to resolve the questions of fact and determine the validity of the exclusivity clause and any alleged breaches of the Fuel Transportation Agreement. The relief sought by Paramount was to be determined after a full consideration of the evidence and arguments presented at the trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.