Pat Wyatt & Associates Pty Ltd v Mobil Oil Australia Ltd
[1990] FCA 784
•07 DECEMBER 1990
Re: PAT WYATT AND ASSOCIATES PTY LTD
And: MOBIL OIL AUSTRALIA LIMITED
No. Q G153 of 1990
FED No. 784
Interlocutory Injunction
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Interlocutory Injunction - whether an agreement for a lease between the parties based upon promissory estoppel - no agreement as to, inter alia, quantum of rent or commencement of the lease.
Words and Phrases - "immediately"
Harvey v. Pratt (1965) 1 WLR 1025
Austotel Pty Ltd v. Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582
HEARING
BRISBANE
#DATE 7:12:1990
Counsel for the applicant: Ms S Kiefel QC and Mr G. Robinson
Instructed by: Flower and Hart
Counsel for the respondent: Mr R. Chesterman QC and Mr L. Bowden
Instructed by: Porter Clayton and Co.
ORDER
The application for interlocutory relief is dismissed.
The costs of this application should be the respondent's costs in the principal proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application for interlocutory injunctions. The application in the principal proceeding, which was filed on Friday, 30 November 1990, claims the following relief:
" 1. A declaration that an agreement exists
between the parties in accordance with the respondent's Team Pak Scheme;
2. An order that the parties do all acts and
things necessary to execute an agreement between them pursuant to the Team Pak Scheme;
3. Alternatively, damages pursuant to Section
82 of the Trade Practices Act or in the further alternative equitable damages or in the further alternative damages for breach of agreement.
4. Further or other relief pursuant to s. 87
of the Trade Practices Act.
The claim for interlocutory relief as filed sought:
1. A declaration that the Notice of
Appointment of ERNEST GEORGE HARRIS as agent of the Respondent to take possession of the mortgaged property pursuant to a registered mortgage debenture dated 18 November 1985 is invalid and of no effect as being in contravention of the Petroleum Retail Marketing Franchise Act 1980
(Commonwealth).
2. An order requiring the Respondent, its
servants and/or agents to deliver up possession of the service station and house premises described as Lot 1 on Registered Plan Number 119002 in the County of Ward, Parish of Darlington and the improvements thereon and the equipment together with all of the assets and undertakings of the Applicant held therein as at 28 November 1990, including the company's moneys, books of accounts and records.
3. An injunction, until the determination of
these proceedings or earlier order, restraining the Respondent, by itself, its officers, servants and/or agents from removing the Applicant from possession of the premises referred to in 2 above and from preventing or effecting the Applicant's operation of the business and undertaking conducted thereon.
In the events that have happened, the question on the interlocutory application is whether the applicant should have possession of a service station at Pacific Highway, Ormeau, and the conduct of the business of the service station as proprietor at that site, until the trial of the action of the principal proceedings. That claim necessarily involves the subsidiary questions of the terms of any such possession.
The applicant claims that an agreement exists between the applicant and Mobil Oil Australia Limited ('Mobil'), which claim is based on promissory estoppel. It is said that from 1987 Mobil represented to the applicant that, subject to conditions that were met, the applicant could become a member of the Team Pak scheme of dealer membership and that Mobil is estopped from asserting that the applicant is not so entitled.
In about September 1978 the applicant became the operator of the "Bushland Roadhouse" at Pacific Highway, Ormeau, in the state of Queensland, which was operated on lease from Mobil. From 1982 to 1987, Mrs Patricia Wyatt, who is a director of the applicant and who describes herself as service station manager, was also the manager of a Mobil service station at Coomera on the Pacific Highway in the state of Queensland. That circumstance has a relevance which will appear later.
In 1981, the applicant in these proceedings entered into certain agreements with Mobil, described separately as a Queensland Lease, a Reseller Contract, and a Meter Wholesale Plan Contract. The applicant entered into similar agreements with Mobil in December 1984 and December 1987. Clause 2 of the Queensland Lease entered into in 1987 provided that it was to commence on 1 December 1987 and end on 30 November 1990.
Mrs Wyatt says that she attended a conference of Mobil dealers from Australia, that occurred in Hawaii in September 1987, and she says that the Retail General Manager for Mobil announced at that conference a new scheme for Mobil service station operators called "Mobil Team Pak." That plan was described in a brochure and, amongst other things, the brochure indicates:
"Team Pak is based on the principle that the Mobil Prime Sign will only be associated with outlets that are truly excellent and meet the required standards of appearance and service. And on the principle that it is through Teamwork that we will realise a strong network where all parties know, accept, and are committed to the attainment of excellence."
It later said:
"For those dealers willing to and capable of joining Team Pak, participation will be offered on the following basis:
. Each area of site operation must meet detailed performance criteria prior to joining the program.
. Mobil lessee dealers will pay accreditation fees, and contribute via rental to an advertising levy.
. Dealer owned sites to undertake upgrades (where applicable) and contribute to the advertising levy.
. The signing of Team Pak documentation prior to end 1988.
Team Pak will be introduced through a planned series of workshops, training sessions and publications between September 1987 and December 1988, and will culminate in the signing of the Team Pak documents by December 1988 for 3 x 3 x 3 year terms. "
The brochure later spoke of an initial accreditation fee. It stated:
"The initial accreditation fee is based on a calculation of a nominal market value of the site - discounted by 65%. This discount applies through to end 1988.
Your Territory Manager will fully discuss your site details with you, but we can say that the average accreditation fee for an extension of tenure to 9 years will be around $14,000."
It said that full details of the calculations involved are provided within the back cover. Those details are not before me.
The brochure said that:
"From 1990 onwards, 0.1 cpl (cent per litre) of your site rental payment will be dedicated to service station oriented Advertising and Sales Promotion. Mobil will match these funds and you will have a say in the planning and execution of the programs. Note too that the existing Handy Mart levy will cease from the beginning of
1989. "
Mrs Wyatt says that the offer of a Team Pak franchise was made to all Mobil dealers. She says:
" ...I decided to participate in the Team Pak scheme subject only to satisfying myself that the formal documentation which was required to be executed, contained no significant detriment to the Applicant. "
Mrs Wyatt says that in early 1988 offers to purchase were made in respect of the Ormeau service station business, which she rejected because of her belief in the future of the applicant under the Team Pak scheme.
In November 1988, the applicant received a letter dated 29 November 1988 from Mobil. It is significant that Mrs Wyatt says that it indicated to her:
"for the first time that the Applicant would not be included in the Mobil Team Pak scheme."
In the letter, Mr I.R. Thomson, the Mobil regional retail manager for Queensland said, inter alia:
"Mobil regards the offering of Team Pak as a privilege and not a right and the ultimate decision as to whether or not Team Pak will be offered or withheld in a particular instance depends not only upon compliance with physical standards and objectives but upon Mobil's evaluation as to whether or not the dealer possesses the other equally essential qualities necessary for the attainment of Team Pak objectives.
The protracted and on-going saga at Coomera moves Mobil to the view that the essential co-operation and team spirit that is so necessary for the achievement of the overall Team Pak objectives is not achievable in its relationship with you and accordingly Team Pak will not be offered to Pat Wyatt and Associates Pty Ltd. at Ormeau. Mobil is aware of your assertions to the effect that Coomera (Kabniri Pty. Ltd.) should be viewed in isolation from Ormeau (Pat Wyatt and Associates Pty. Ltd.) because technically, at least, different entities are involved. Mobil cannot accept this view; the reality is that you are the "alter ego" of both companies and the person with whom Mobil has always dealt and for this reason Mobil cannot view Coomera as anything other than a very real and poignant indication that there is a total absence in its relationship with you of the elements that Mobil regards as being quite fundamental to the achievement of Team Pak objectives. Accordingly the accreditation process, insofar as Pat Wyatt and Associates Pty. Ltd. is concerned, will be abandoned and Mobil will continue to deal with the company in terms of its current legal arrangements. "
Mrs Wyatt says that, on receipt of this letter, she immediately contacted the chairman of the Mobil Dealer Council in Queensland, requesting him to make efforts to have the matter raised at the next National Council meeting, but she was later advised by that person that he considered the matter was one which was inappropriate for involvement of the Mobil Dealer Council.
Mrs Wyatt says that she requested assistance from the Motor Trades Association of Queensland to intervene with the respondent, on the applicant's behalf, "to resolve the dispute" but this request proved to be fruitless. She also says that she contacted a Mr Bill Lamond, the mediator of the Queensland Retail Shop Leases Tribunal, and had discussions with him which were ongoing in April 1989.
At that time, Mobil served on the applicant a specially indorsed writ out of the Supreme Court of Queensland seeking recovery of the reference manuals for a Mobil Team Pak dealership. That specially indorsed writ recited that the manuals were delivered in about 15 July 1988 to the applicant at the roadhouse at Ormeau, and a written acknowledgement of the receipt of the goods was made by Mrs Wyatt on about that date. The writ goes on to recite that the receipt acknowledges, inter alia,
"(a) that the goods were loaned to the Defendant for the Team Pak accreditation period, ending December 31 1988;
(b) that after that time the goods were for the exclusive use of accredited Mobil Team Pak dealers;
(c) that dealers who don't join Team Pak by 31 December 1988 must return the goods to the plaintiff."
The writ recited a demand on 3 April 1989 for the return of those goods, and had also indicated that Mobil had informed the applicant in writing, on or about 29 November 1988 that Mobil would not accept the applicant as an accredited Mobil Team Pak dealer.
It appears, although it is not expressly stated, that the Team Pak manuals were returned to Mobil, because Mrs Wyatt, somewhat ingenuously it seems to me, says in her affidavit that the specially indorsed writ "necessitated concluding the discussions with Mr Lamond because the manuals were necessary to assist his understanding of the Team Pak scheme."
On 6 March 1990, Mobil wrote to the applicant in response to a letter of 13 February 1990. The letter of 6 March spoke of a number of matters, including the provision by the company of security usually taken and given by corporate franchisees. The letter concluded:
"It is perhaps timely to draw your attention to the fact that the company's franchise with respect to Bushlands Roadhouse terminates on November 30 1990 and on that date the Petroleum Retail Marketing Franchise Act 1980 ceases to apply.
On that date the company will be required to vacate and deliver up possession of the site to Mobil. "
In about August 1989 the Oil Code Committee was established. One of its functions was to establish a means of conciliating disputes which arose between oil companies and proprietors of service stations. No conciliator was appointed until about 29 July 1990, and Mrs Wyatt says that she applied to secure his involvement in the dispute, and the conciliation process was in fact begun. Mobil conveyed its decision to withdraw from the concilition process on 27 November 1990.
On that same day, two letters were delivered to the applicant, each dated 27 November 1990. The first related to a claim that the rental for November 1990 had not been paid in terms of the agreement between the applicant and Mobil and immediate payment of the outstanding amount of $7588 was required. The letter said that payment in terms of the demand could be made by having a bank cheque for that amount be available at Mobile Ormeau for collection by a Mobil representative or agent, at 5 pm on Wednesday, 28 November 1990.
The second letter commenced:
"As previously advised, your franchise at the above location expires at midnight on 30th November 1990."
It speaks of communications between the parties in relation to the operation of the service station and to advertisements placed by Mobil early in November 1990 concerning the operation of the service station. The letter later said:
"Mobil now expects you to vacate and deliver up possession of the site upon the expiration of your current franchise.
The close out audit and dealer change shall take place at midnight on Friday 30th November, 1990.
From the time of receipt of this advice and until you vacate the site, Mobil's terms for payment of the Meter Plan are by bank cheque, remitted daily. To assist you in this regard, Mobil's representative will attend at the site to receive this payment each day, no earlier than 11.00 am. "
So far as the dispute as to non-payment of rental is concerned, Mrs Wyatt says that for several years she had followed the practice of paying the rental due under the lease agreement between the parties at the end of each calendar month in arrears rather than in advance as required pursuant to clause 3(a) of the lease. She says Mobil had written to the applicant on a number of occasions over the last 12 months concerning the late payment of the rent, but that it had taken no other steps to enforce that term. She says that in September 1990 she had discussions with Mr Thomson whereby agreement was reached that the rent due for August, September, October and November would be paid by nominated dates, and in particular that the November payment was not due until 30 November 1990. As a consequence it is the applicant's claim that Mobil was not entitled to appoint a receiver for non-payment of rental as it purported to do on 29 November 1990. The agreement which Mrs Wyatt says was made with Mr Thomson is denied by him. It is common ground, however, that the November rental has not as yet been paid.
As to the payment for fuel, Mrs Wyatt says that the usual practice initially was to pay by a company cheque, and for the last two years by bank cheque, on each Tuesday and Friday, the cheque being delivered to the Mobil head office at Colmslie, and it was not until the letter delivered on 27 November 1990 requiring payment by bank cheque to be collected after 11 am each day on a daily basis that Mobil had sought to change those arrangements.
On Wednesday, 28 November 1990, Mobil conducted a fuel audit of the underground stocks of petroleum at the Ormeau service station site, and an invoice was given to a person employed by the applicant in attendance at the site in respect of the payment for fuel as disclosed by that audit. Accompanying the invoice was a letter dated 28 November 1990 which recited in part:
"Pursuant to clause 6.4 of the Meter Wholesale Plan contract you are required to immediately pay to Mobil's audit representative the amount due as shown in the invoice. Strict compliance with the terms of the Meter Wholesale Plan contract is required and Mobil shall accept payment in cash or by bank cheque.
In the event that you have insufficient cash on hand to meet your liability Mobil's audit representative is instructed to accompany you to your bank (which Mobil believes to be the ANZ Bank at Beenleigh) at your reasonable convenience having regard to the exigence of business on site and take delivery at the bank of the necessary cash or bank cheque. "
This demand for immediate payment is described by Mrs Wyatt in her affidavit as unique in the relationship of the applicant to Mobil. She states that she first became aware of these demands at about 6 p.m. on 29 November, and that she then learnt that Mobil had taken possession of the service station site in purported reliance on a mortgage debenture dated 18 October 1985, and had appointed Ernest George Harris as agent for Mobil "for the purpose of taking and retaining possession of the mortgage premises described in the registered charge".
The appointment relates to the mortgaged "premises", and the appointments were on several bases: in respect of the alleged non-payment of the monthly rental for November, the alleged non-compliance with the obligation to pay for the fuel as revealed by the fuel audit on 28 November 1989, and the claimed failure to comply with the requirement to pay for each day's fuel by bank cheque to be available for collection at the Ormeau Service Station site after 11 am on the following day.
Mr Harris remained in possession of the premises until midnight on 30 November 1990. The present position is that an agent of Mobil is in possession of the premises and conducting the business of the service station as Mobil's agent.
Both the applicant and Mrs Wyatt personally offered undertakings as to damages, but Mobil asserts that such undertakings are worthless.
I accept that on an application of this nature, the court is required to consider whether there is a serious question to be tried, and in that event where the balance of convenience lies: Epitoma Pty Limited v. Australasian Meat Industry Employees Union (No. 2) (1984) 54 ALR 730. In Carson v. Minister for Education of Queensland (1989) 88 ALR 467 I sought to express my respectful approval of the opinion of Gummow J in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 concerning what ought to be required for the grant of a mandatory injunction. To require, as a rule, a higher standard of persuasion for a mandatory injunction than for a prohibitory one, is, it seems to me, to impose a mechanistic and unhelpful requirement. Whether an injunction is properly to be described as mandatory or prohibitory is not always clear, and in some cases may turn on how the order is formulated.
In this case the applicant wishes to continue in possession of the premises of the service station it has enjoyed for nearly 12 years. Mobil says that, the lease having expired, any order of the court would be an order requiring it to vacate the premises and to deliver up possession to the applicant. Further, Mobil says that the effect of such an order would be to require it to continue to be engaged in a personal relationship involving the supply of goods and the giving of credit.
It is clear that these considerations are relevant matters in the decision whether an injunction should issue. The position may be illustrated by reference to contracts of employment and contracts involving special personal relationships. Principles on Equitable Remedies by Spry, 4th Ed. Law Book Company 1990 says at 117:
"It is clear that the general rule whereby special personal relationships are not ordinarily enforced in specie involves merely a discretionary consideration, which, albeit a consideration of great weight, may sometimes be overborne by other considerations. Although some of the relevant authorities contain statements that suggest that an absolute bar is involved, those statements must be confined to circumstances such as those there being considered."
The learned author makes reference to the observations of Megarry J, as he then was, in C.H. Giles and Co Ltd v Morris (1972) 1 WLR 307. Megarry J said in that case at 318-9:
"But I do not think that it should be assumed that as soon as any element of personal service or continuous services can be discerned in a contract the court will, without more, refuse specific performance. Of course, a requirement for the continuous performance of services has the disadvantage that repeated breaches may engender repeated applications to the court for enforcement. But so may many injunctions; and the prospects of repetition, although an important consideration, ought not to be allowed to negative a right. As is so often the case in equity, the matter is one of the balance of advantage and disadvantage in relation to the particular obligations in question; and the fact that the balance will usually lie on one side does not turn this probability into a rule (my emphasis).
In the context of mandatory injunctions, it is particularly pertinent to remember that the two aspects of the grant of an injunction, viz. whether there is a serious question to be tried, and where the balance of convenience lies, are not to be viewed in isolation. In Bullock v. The Federated Furnishing Trades Society of Australasia (1985) 5 FCR 464, Woodward J., (with whom Smithers and Sweeney JJ. agreed), after having referred to the statement of principle by the Full Court of the Federal Court in Epitoma's case (supra), said at 472:
"The only point I would wish to add for myself is that, when it becomes necessary to consider the balance of convenience, it is, I believe, quite proper to continue to bear in mind the apparent strength of the applicants' case; the two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it. "
The nature of the order sought, and the consequences of that order on each party, are highly relevant to the exercise of that discretion, and an order calling on a party to do an act will not lightly be granted, and then only when the court feels the interests of justice are better served by that course than by not making such an order.
The applicant puts its case on the basis that there was a representation by Mobil in 1987, that it would, on accreditation, become a Team Pak dealer with the advantage of a 3 x 3 x 3 year tenure from December 1988; that it complied with what was required of it to be so treated, and that Mobil is estopped from denying its entitlement to a 3-year lease from December 1988 with two further options each for three years.
On analysis, the applicant's claim lacks substance; the countervailing considerations are very powerful. There is a complete absence of any contemporaneous writing from September 1987 to date supporting the applicant's claim to an agreement with Mobil. There is no evidence of any response to the letter of 29 November 1988, a letter which Mrs Wyatt herself says indicated to her that her company would not be a Team Pak dealer. There is no evidence of any protest at that result, nor any assertion of an entitlement to a Team Pak tenure contrary to the clear and unequivocal communication of the letter of 29 November 1988.
Moreover, there is strong evidence against such an agreement. The first is the letter of 29 November 1988 itself. The second is the specially indorsed writ in April 1989, including its terms and apparent success. There appears to have been no protest, nor response, nor any assertion , to an entitlement to be regarded as a Team Pak dealer and to have tenure as such a dealer contrary to the clear tenor of the writ. Thirdly, there is the letter of 6 March 1990, and again the absence of any evidence of protest or denial such as one would expect if, contrary to the tenor of that letter, there was an entitlement as a tenant under tenure as a Team Pak dealer.
Next, it was not until the very last day of the term of the lease of December 1987 that any application was brought in respect of what is said to be an existing entitlement from at least December 1988.
There are further matters which point strongly against there being an assurance or an agreement that a 3 x 3 x 3 year lease as a Team Pak dealer would be granted to the applicant, and the applicant was entitled from December 1988 to be so regarded. First, there was no specific agreement for any such tenure. There is, it seems, an absence of any writing in that respect. There is no performance, because the mere retention of possession is insufficient.
If there was such an entitlement, there are a number of significant areas which are difficult to ascertain. The quantum of the rent is unclear. What was to be the accreditation fee, and whether it was to be arrived at through negotiation or calculation, is uncertain. There is no evidence at all as to what was to be the advertising levy, nor is there anything to indicate from what date the lease would commence.
In Harvey v. Pratt (1965) 1 WLR 1025, the Court of Appeal was concerned with a written agreement between the defendant and the plaintiff under which the defendant was to take a lease of a garage. The document described the property, set out the annual rent and the length of the term of the lease, but the date for commencement was not given. It was signed by both parties and witnessed and later stamped. The Court of Appeal held that, for a valid agreement for lease to exist, the parties, the property, the length of the term, the rent and the date of commencement must all be defined, and, accordingly, there was not a valid concluded contract. Lord Denning M.R. said at 1026:
"It has been settled law for all my time that, in order to have a valid agreement for a lease, it is essential that it should appear, either in express terms or by reference to some writing which would make it certain, or by reasonable inference from the language used, on what day the term is to commence. "
And Lord Justice Davies said at 1027:
"The analogy which (counsel for the defendant) seeks to draw between an agreement or contract for sale of freehold and an agreement for a lease is, in my opinion, quite an unsound one. In the case of a contract for the sale of freehold, the subject-matter is ascertained, namely, the land. In the case of an agreement for a lease, if the length of the term and the commencement of the term are not defined, then the subject of the agreement or contract is uncertain. Therefore, there is no agreement. "
On behalf of the applicant, it is not said that an agreement, all the terms of which were certain or ascertainable, had, in fact, been made. What was sought to be relied on are the principles discussed in the judgment of Priestly JA in Austotel Pty Ltd v. Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582. There the Court of Appeal concluded that, in the absence of a binding agreement, the developer was not estopped from denying the existence of an agreement, and the majority held that the circumstances of that case did not give rise to any equity which required the court to grant relief because of unconscionable conduct.
It was submitted on behalf of the applicant that the circumstances in this case were such as to give rise to such an equity, notwithstanding that some of the terms were required to be provided by the court.
Priestly JA, who dissented as to the disposition of the appeal, drew a distinction between those cases where the terms are certain and those where the terms are not certain. His Honour said at page 604:
"The circumstances in Silovi (Silovi Pty Ltd v. Barbaro (1988) 13 NSWLR 466), as they were in Waltons Stores (Interstate) Pty Ltd v. Maher
(1988) 164 CLR 387, were that there was no dispute about any of the terms of the agreement; the question in each case was whether relief could be obtained by means of estoppel in circumstances where an agreement, or proposed agreement, the terms of which were known, was not enforceable."
These cases were to be contrasted with cases like Plimmer v. Mayor of Wellington (1884) LR 9 App Cas 699. He referred to that latter case, saying it is a clear example of a situation:
"...where a plaintiff, despite being unable to point to some agreement which, although unenforceable, contains precise terms describing what he expected from the defendant, has nevertheless been held to be entitled to equitable relief which may be of a proprietary kind."
It was submitted on behalf of the applicant that this was a Plimmer type case. After a detailed and scholarly review of the authorities, Priestly JA concluded at 610:
"For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would not be unconscionable."
He referred to the observations of Lord Templeman in Attorney-General of Hong Kong v Humphreys Estate (Queen's Gardens) Ltd (1987) AC 114 which are relevant in the present case. Lord Templeman said, at 127-128:
"It is possible but unlikely that in circumstances at present unforeseeable a party to negotiations set out in a document expressed to be 'subject to contract' would be able to satisfy the court that the parties had subsequently agreed to convert the document into a contract or that some form of estoppel had arisen to prevent both parties from refusing to proceed with the transactions envisaged by the document."
Here, there was no express reservation that any negotiations were "subject to contract", but the whole tenor of the arrangements in relation to the Team Pak scheme contemplated documentation to be concluded by December 1988. I find it difficult to believe that the applicant, nothwithstanding that premise of the negotiations, can maintain an entitlement to a lease agreement with Mobil to date from some time in December 1988, notwithstanding the absence of any execution of documentation by the end of December 1988.
In the view I take of the matter, Mobil did not create or encourage in the applicant an assumption that a contract would come into existence or that a promise of a contract would be performed. Nor has it been shown, on the basis required for an interlocutory application, that there was reliance by the applicant on that assumption in circumstances where departure from that assumption would be unconscionable.
It seems to me that the observations of Rogers A-JA in Austotel (supra) are applicable to the factual circumstances here. Rogers A-JA said at 620:
"In my opinion, in the circumstances, the plaintiff was not entitled to believe that a lease would be entered into until the additional rental was agreed or otherwise determined."
I am not satisfied that the applicant acted upon the assumed state of affairs; cf. Walton Stores (supra) at 452, nor am I satisfied that it conducted its business on the basis of that assumption. I believe that the applicant, through Mrs Wyatt, was hoping to negotiate a future tenure from Mobil, and explored various avenues in pursuit of that aim, but on the basis of the evidence presently before me and, understanding that I make no final determinations on this application, Mrs Wyatt did not believe and did not act on the basis that the applicant was entitled to a Team Pak arrangement from December 1988. On this central aspect of the matter, I do not think that a serious question to be tried has been demonstrated.
There is, however, a serious question to be tried whether Mobil was lawfully in possession of the service station and the records of the applicant company pursuant to the appointment of Mr Harris as receiver on 28 November 1990.
So far as the basis of that appointment being the non-payment of rental is concerned, there is a dispute as to whether there was an agreement between Mrs Wyatt and Mr Thomson as to the date for payment of the November rental. Whether there was default in payment of rental at the time of the appointment of the receiver is a serious issue for trial.
As to the other bases sought to be relied on to justify that appointment, it seems to me that the requirement that the fuel bill be paid "immediately, as per clause 6.4 of the meter wholesale plan", should be regarded as requiring a reasonable opportunity to pay. In Bunbury Foods Pty Ltd v. National Bank of Australasia Ltd. (1983-1984) 153 CLR 491, the court (Mason, Murphy, Wilson, Brennan and Dawson JJ.) said at 502-3:
"It is a now a well established principle of law that a debtor required to pay a debt payable on demand must be allowed a reasonable time to meet the demand. Even in a case where a deed provided that the debt was payable 'immediately upon demand thereof in writing' it was held that the provision must be given a reasonable construction so that the debtor had a reasonable time to get the money from some convenient place (Toms v. Wilson (1862) 4 B and S 442 at pp 453-455 (122 ER 524 at p 529). This does not mean that the notice calling up the debt is invalid unless it requires payment 'within a reasonable time'. It means no more than that the debtor must be allowed a reasonable opportunity to pay before it can be said that he has failed to comply with the demand. A notice requiring payment forthwith will be regarded as allowing the debtor a reasonable time within which to comply. Until a reasonable time in the sense discussed has elapsed the creditor cannot enforce his security."
In the circumstances of this case, it is open to argument whether the time allowed for compliance with the demand for the fuel bill, being a matter of a few hours at best, was such a reasonable time so as to permit the creditor to rely on his security.
However, despite my reservations as to the lawfulness of the appointment of the receiver, nothing turns on that for the question of the grant of interlocutory relief. The appointment of the receiver was in respect of the premises, not in respect of the property, the subject of the charge. The receiver is no longer in the possession of those premises, and it was indicated in the course of argument that the records of the applicant company would be returned to it forthwith.
Another question to which passing reference may be made concerns the worth of the undertakings offered by Mrs Wyatt and the applicant. The material is conflicting as to the worth of those undertakings. On the basis of that material, it is not possible to conclude that the undertakings offered were worthless. The evidence of worth, in regard to the equities in the various real properties, was not the subject of extensive elaboration in the material, but is uncontradicted. And I am not satisfied, as Mobil claims, that the undertakings offered should be disregarded as worthless.
However, for the reasons which I have expressed above, in all the circumstances I decline to grant interlocutory relief. The costs of this application should be the respondent's costs in the principal proceedings.
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