Paramount Haulage Pty Ltd v Farooq - [2023] WASC 367

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

These reasons concern a summary judgment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Paramount Haulage Pty Ltd v Farooq and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] WASC 367
Decision Date: 28 SEPTEMBER 2023

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