Trans Petroleum (Australia) Pty Ltd v White Gum Petroleum Pty Ltd

[2013] HCASL 92

TRANS PETROLEUM (AUSTRALIA) PTY LTD

v

WHITE GUM PETROLEUM PTY LTD

[2013] HCASL 92
P30/2012

1. On or about 18 February 2008, the parties entered into a fuel re‑selling agreement ("the Agreement").  The Agreement was subject to the Oilcode, a mandatory code of conduct prescribed under the Trade Practices Act 1974 (Cth), which required fuel re-selling agreements to be of at least five years' duration unless certain circumstances existed to allow the parties to agree on a different duration. On 6 August 2010, the respondent served on the applicant a notice, under a clause in the Agreement, which purported to terminate it.

2. On 3 June 2011, the Supreme Court of Western Australia (Allanson J) refused the applicant's request for a declaration that the notice given by the respondent was void.

3. On 23 August 2012, the Court of Appeal of the Supreme Court of Western Australia dismissed the applicant's appeal.  The applicant argued that the termination of the Agreement breached the Oilcode's five-year duration requirement; an argument not pressed in the Supreme Court.  Buss JA, with whom Pullin and Murphy JJA agreed, rejected the argument.  Under the Oilcode, a shorter duration could be agreed if "the initial non-refundable amount" agreed to be paid by the applicant before it commenced operations under the Agreement was less than $20,000.  Buss JA held that this circumstance existed; the applicant had not been required to pay any such amount.  His Honour rejected the applicant's argument that an amount less than $20,000 did not capture circumstances where no amount was paid.  This argument was not supported by the Oilcode's language or purpose.  An argument that the Agreement must specify the reason for its shorter duration, else the five-year duration requirement would apply, was also without merit.  That would have implied a substantive additional requirement not mandated by the Oilcode's text.  Buss JA also held that an obligation of good faith was not to be read into the power of termination in the Agreement, nor had the respondent acted unconscionably in serving the notice of termination.

4. The application for special leave to appeal to this Court advances arguments on the construction of the Oilcode, which are substantively the same as those considered below.  There is no reason to doubt the correctness of the Court of Appeal's decision on those grounds.  The applicant also seeks to argue that the parties never turned their minds to any upfront payment; but to say this is to confirm that "the initial non-refundable amount" was indeed less than $20,000 in that no such amount was ever contemplated.  Special leave is refused.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
5 June 2013 P.A. Keane