White Gum Petroleum Pty Ltd v Trans Petroleum Australia Pty Ltd
[2011] WASC 330
•2 DECEMBER 2011
WHITE GUM PETROLEUM PTY LTD -v- TRANS PETROLEUM AUSTRALIA PTY LTD [2011] WASC 330
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 330 | |
| Case No: | CIV:2137/2011 | 3 AUGUST 2011 | |
| Coram: | LE MIERE J | 2/12/11 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | WHITE GUM PETROLEUM PTY LTD TRANS PETROLEUM AUSTRALIA PTY LTD |
Catchwords: | Practice and procedure Application for stay of execution of judgment pending appeal Tests for grant of stay Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15 Trade Practices (Industry Codes-Oilcode) Regulations 2006 (Cth) Trade Practices Act 1974 (Cth), s 51AC, s 51AE |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 Trans Petroleum Australia Pty Ltd v White Gum Petroleum Pty Ltd [2011] WASC 150 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TRANS PETROLEUM AUSTRALIA PTY LTD
Defendant
Catchwords:
Practice and procedure - Application for stay of execution of judgment pending appeal - Tests for grant of stay - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Trade Practices (Industry Codes-Oilcode) Regulations 2006 (Cth)
Trade Practices Act 1974 (Cth), s 51AC, s 51AE
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr J A Thomson & Mr D A Lenhoff
Defendant : Mr P J Mugliston
Solicitors:
Plaintiff : Holborn Lenhoff Massey
Defendant : Tang Legal
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118
Trans Petroleum Australia Pty Ltd v White Gum Petroleum Pty Ltd [2011] WASC 150
(Page 3)
1 LE MIERE J: The defendant applies pursuant to s 15(1)(a) of the Civil Judgments Enforcement Act 2004 (WA) (the Act) for an order suspending the enforcement of the judgment in this matter entered on 28 July 2011 until the determination of the defendant's appeal against that judgment.
2 I will refer to the plaintiff as White Gum Petroleum and the defendant as Trans Petroleum. The judgment was entered after White Gum Petroleum successfully applied for summary judgment. On the hearing of White Gum Petroleum's application for summary judgment Trans Petroleum accepted that the court was bound to order summary judgment in favour of White Gum Petroleum because of the judgment of Allanson J in CIV 2585 of 2010 in which Trans Petroleum was the plaintiff and White Gum Petroleum the defendant (the first action). Allanson J gave judgment in favour of White Gum Petroleum in the first action: Trans Petroleum Australia Pty Ltd v White Gum Petroleum Pty Ltd [2011] WASC 150. Trans Petroleum has appealed from that judgment. The appeal has not yet been determined. It is common ground that the outcome of Trans Petroleum's appeal from the summary judgment in this action will depend upon the outcome of its appeal from the judgment of Allanson J in the first action.
The dispute between the parties
3 Trans Petroleum operates a Peak service station and convenience store under licence from White Gum Petroleum. Trans Petroleum also owns the land where the service station and the store are situated. In about February 2008 Trans Petroleum leased the land to White Gum Petroleum for a 10 year term. At the same time White Gum Petroleum agreed to grant to Trans Petroleum a licence to conduct a convenience store business and to sell petroleum products on a consignment basis as a Peak service station and store on that land (the Peak Fuel Re-Selling Agreement or the Agreement or the Deed). In March 2008 the then sole shareholder of White Gum Petroleum sold his share to Gull Trading Pty Ltd, one of a group of companies (the Gull Group). After purchasing White Gum Petroleum, the Gull Group had an interest in 39 service stations in Western Australia. It had its own system for the operation of the service stations. It is convenient to refer to the Peak system and the Gull system. The Gull Group decided to move all the service stations in which it had an interest to the Gull system and to phase out the Peak system. By April 2010 the service station and convenience store operated by Trans Petroleum was the only one still using the Peak system. In meetings between representatives of Trans Petroleum and White Gum Petroleum, Gull sought to have Trans Petroleum enter into a standard Gull
(Page 4)
- franchise agreement. Trans Petroleum did not agree. On 6 August 2010 White Gum Petroleum gave notice to Trans Petroleum that it was exercising the power in cl 3 of the Peak Fuel Re-Selling Agreement (the Agreement) to terminate the agreement. Following the notice of termination, Trans Petroleum applied to this court for interlocutory relief restraining White Gum Petroleum from acting on the notice. The court was not required to make an order because White Gum Petroleum agreed to maintain the status quo pending resolution of the matter.
4 Under the Agreement, White Gum Petroleum is referred to as Peak and Trans Petroleum is referred to as the Retailer. By the Agreement, Peak agrees to grant to the Retailer a non-exclusive licence to occupy the site and to operate a convenience store business and service station using Peak's systems and process and selling Peak petroleum products on a consignment basis. Clause 3 of the Agreement provides:
The Term, unless terminated as provided for in clause 14 of this Deed, shall continue from month to month with either party entitled to terminate this Deed upon two (2) months written notice to the other.
5 Clause 4 contains provisions relating to licence fees and other payments including a provision that Peak and the Retailer shall negotiate in good faith in the review of a fee described as the Daily Fee. Clause 13 provides for default and termination. First, it provides for termination where the Retailer fails to remedy certain breaches after having been given 14 days notice by Peak. Second, under cl 13.3 Peak may terminate immediately on the occurrence of specified events. Clause 13.4 provides for the effect of termination or expiration of the Deed due to effluxion of time.
6 Clause 14 provides for mediation of disputes between the parties. Either party may institute the dispute procedure by notice in writing to the other. This procedure dovetails with the mediation procedure under the Oilcode - a mandatory code of conduct prescribed under s 51AE of the Trade Practices Act 1974 (Cth) (the TPA) - see Trade Practices (Industry Codes - Oilcode) Regulations 2006 (Cth) (the Oilcode Regulations). In cl 24, the parties agreed to act in accordance with the Oilcode and to enter into such further agreements as may be required to ensure compliance with that code.
The first action
7 Allanson J described the claims by the parties in the first action as follows:
(Page 5)
- In its statement of claim, the plaintiff pleads that, properly construed, the power of termination in cl 3 can only be exercised by the defendant:
(a) for a proper purpose;
(b) honestly; and
(c) not capriciously or arbitrarily.
Alternatively, the plaintiff pleads that, properly construed, the power cannot be exercised for the purpose of avoiding the express term in cl 4 to negotiate in good faith in the annual review of the daily fee payable by the plaintiff under the agreement, capped at 12% of the gross turnover of all sales other than Peak's petroleum products.
Alternatively, the plaintiff pleads that such a limitation on the power of termination is to be implied in fact.
The plaintiff claims that the defendant, in breach of cl 4, attempted to insist on a new agreement which would result in the plaintiff paying a daily fee greater than 12% of gross turnover. The plaintiff says that the defendant issued the notice of termination in breach of the limits imposed on the power to terminate in cl 3, and in breach of its obligation to exercise the power only for a proper purpose, honestly, and not capriciously or arbitrarily.
The plaintiff pleads, as an alternative, that the defendant's conduct in purporting to terminate the Peak Fuel Re-Selling Agreement is unconscionable conduct in terms of s 51AC of the Trade Practices Act1974 (Cth) as the defendant:
(a) has not acted in good faith in issuing the termination notice;
(b) failed to first use the dispute resolution procedure provided in the Oilcode.
The plaintiff also pleads failure to comply with the Oilcode as a particular of the allegation that the defendant issued the termination notice in breach of limitations on the power of termination. Counsel for the plaintiff confirmed at the hearing, however, that the plaintiff relied on the Oilcode only in relation to whether the conduct of the defendant was unconscionable.
The defendant denies that cl 3 is limited in the way the plaintiff contends. It denies that it breached the obligation to negotiate the review of the daily fee in good faith. It says that its decision to terminate the agreement followed from the decision by the Gull group to move all the convenience stores in which Gull had an interest to the Gull system, and that maintaining one store only under the Peak system caused Gull a wide range of accounting, administrative, marketing, promotion, IT and other problems. The defendant denies that its conduct was unconscionable.
(Page 6)
- The defendant counterclaims for a declaration that the termination notice is valid and of full force and effect [18] - [25].
8 In his judgment Allanson J stated that while six witnesses were called, there was little factual dispute and, with some minor reservations, the parties agreed to the court making findings of fact set out in a document prepared by White Gum Petroleum (the Agreed Facts).
9 Allanson J rejected Trans Petroleum's construction of cl 3. His Honour found that cl 3 operates quite independently of cl 13.1 (termination on default) and cl 13.3 (immediate termination on the occurrence of specified events). His Honour held that a party who gives notice under cl 3 is not giving notice of breach or cause for termination and two months after notice is given, the term of the Agreement comes to an end. Allanson J found that White Gum Petroleum acted reasonably and in good faith in exercising the power to terminate in cl 3.
10 Allanson J rejected Trans Petroleum's contention as an alternative ground for relief, that termination of the Agreement was unconscionable pursuant to s 51AC of the TPA. Trans Petroleum had submitted that under TPA s 51AC the court should have regard to the extent to which White Gum Petroleum was willing to negotiate the terms and conditions of the Agreement whether White Gum Petroleum had a contractual right to vary unilaterally a term or condition, and the extent to which each party acted in good faith. In substance, Trans Petroleum submitted it was unconscionable for White Gum Petroleum to attempt to force a new agreement that did not cap the Daily Fee rather than comply with the obligation under the existing agreement to negotiate any new fee in good faith and within a 12% cap. Part 4 of the Oilcode provides a dispute resolution procedure. It was common ground that the parties did not use the mediation procedure under the Agreement or under the Oilcode. Allanson J found that it was not unconscionable conduct for White Gum Petroleum not to activate the mediation procedures under the Oilcode. His Honour found that in the circumstances White Gum Petroleum's conduct was not unconscionable, where Trans Petroleum did not give notice of a dispute or seek mediation, but instead had immediate recourse to the courts. His Honour found that the failure by White Gum Petroleum to activate the dispute resolution procedure, where Trans Petroleum did not seek any resolution of the dispute under the Oilcode, is not sufficient to constitute unconscionable conduct. Finally, his Honour found that the notice of termination was not issued for the purpose of either avoiding the obligation to negotiate on the Daily Fee, or to force Trans Petroleum to accept an agreement that was not capped at 12%. His Honour found that
(Page 7)
- there was nothing in White Gum Petroleum's conduct which attracts relief for unconscionable conduct. His Honour dismissed Trans Petroleum's claim and declared that the termination notice is valid and of full force and effect.
Claim in this action
11 White Gum Petroleum commenced this action on 29 June 2011. In its statement of claim White Gum Petroleum pleaded that on 6 August 2010 White Gum Petroleum gave Trans Petroleum a notice terminating the Deed and that on 3 June 2011, in the first action, this court declared that the termination notice was valid and of full force and effect. White Gum Petroleum further pleaded that it and Trans Petroleum had agreed that Trans Petroleum would vacate the site on which the convenience store and service station are situated (the Premises) by 28 June 2011 and further that by letter dated 28 June 2011 White Gum Petroleum demanded immediate possession of the Premises but that Trans Petroleum has refused to vacate the Premises. White Gum Petroleum sought an order that Trans Petroleum immediately give vacant possession of the Premises. As I have said, on 28 July 2011 I ordered that judgment be entered for White Gum Petroleum and that Trans Petroleum give vacant possession of the Premises to White Gum Petroleum. Trans Petroleum now applies for an order suspending the enforcement of that judgment.
Suspension order under the Act
12 Section 15(1) of the Act provides that a person against whom a judgment is given may apply to the court that gave the judgment for an order suspending the enforcement of all or part of the judgment. Section 15(3) provides that on such an application, the court may only make such an order if there are special circumstances that justify doing so.
13 The general principles which are applicable to the exercise of the court's discretion to grant a stay of execution were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308, as follows:
• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
(Page 8)
- • The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted [9].
- See Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 [14] (Newnes JA).
14 While those principles provide guidance in the exercise of the discretion they are not inflexible or exhaustive, and at all times the ultimate question must be whether there are special circumstances which justify the court ordering a stay: Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [15] (Newnes JA).
Special circumstances
15 Trans Petroleum submits that there are special circumstances that justify an order suspending the enforcement of the judgment. Trans Petroleum says that if a stay is not granted its business will be destroyed and a third party will be in possession of the service station and convenience store and Trans Petroleum may well not get back to the position it is in today. Trans Petroleum submits that in such circumstances, in the absence of a stay of the judgment, the appeal would be rendered nugatory in the sense that it would cease to serve any practical purpose.
16 I find that there are special circumstances as contended by Trans Petroleum. In or around October 2009 Trans Petroleum upgraded the kitchen facilities at the site and introduced Asian food into the fast food menu of the convenience store. Trans Petroleum has substantially increased sales from the convenience store and built up the goodwill of
(Page 9)
- the business. In June 2011 White Gum Petroleum entered into a new franchise agreement with Restell Holdings Pty Ltd (Restell) to take over the site immediately once Trans Petroleum gives vacant possession. If the stay is not granted Trans Petroleum will be required to vacate the Premises prior to the determination of the appeal. If that happens Trans Petroleum will lose the added goodwill which resulted from the introduction of the Asian food menu. Trans Petroleum will lose employees it trained over the three years it has been operating and in particular the senior cook and supervisor that worked at the site to support the introduction of the Asian food. Furthermore, if the appeal is successful without a stay having been granted there will be practical difficulties in respect of relief which the court might grant because Restell would have taken over the site and be entitled to occupy the Premises pursuant to its agreement with White Gum Petroleum.
Grounds of appeal
17 It is common ground that the outcome of the appeal in this action will depend on the outcome of the appeal in the first action. I will consider the prospects of Trans Petroleum succeeding in its appeal in the first action.
18 There are four grounds of appeal. Ground 1 is that the trial judge erred in law in failing to properly interpret s 32 of the Oilcode as it applied to the position the parties were in, and in particular failed to properly conclude that the parties do not fall within the provisions of s 32(11) but are governed by s 32(12) with the result that the purported termination notice was ineffective in law.
19 Section 32 prescribes the duration for different types of existing and new fuel re-selling agreements. It is common ground that the Agreement is a new agreement for the purposes of s 32, that is it was entered into on or after the date of commencement of the code. Section 32 provides that a new fuel re-selling agreement must have a duration of five years except under certain circumstances set out in s 32(11) which relevantly provides as follows:
A supplier and a prospective retailer may agree on a different duration for a fuel re-selling agreement if:
…
(c) the total initial non-refundable amount that the prospective retailer must pay, or agree to pay, to the supplier and any associates of the supplier, before commencing operations under a new or renewed
- fuel re-selling agreement, would be less than $20 000, excluding any of the following amounts:
…
- Note Paragraph (11)(c) allows for a flexible duration of an agreement where less than $20 000 is paid up-front to the supplier (for example, for goodwill or as 'key money') as a condition of entering into the agreement.
20 It is common ground that the Agreement did not require any consideration or payment from the retailer to the supplier and in fact no payment was made. The trial judge found that s 32(11)(c) applied to the Agreement and hence the parties were free to agree on the duration of the agreement. Indeed, Trans Petroleum conceded that was the case during the hearing.
21 In its grounds of appeal Trans Petroleum argues that s 32(11)(c) does not apply. Trans Petroleum submits that s 32(11)(c) requires as a condition before the parties enter into a re-selling agreement that there be a payment from the retailer to the supplier of a sum less than $20,000. In this case the Agreement did not provide for the retailer to pay any sum to the supplier and hence, Trans Petroleum submits, there was not a condition that there be a payment from the retailer to the supplier of a sum less than $20,000.
22 This ground of appeal has no real prospects of success. Trans Petroleum's construction of s 32(11)(c) finds no support in a text-based or purposive interpretation of the provision. The Explanatory Memorandum to the bill explained that the effect of s 32 is, relevantly, that a new fuel re-selling agreement must have a duration of five years except under the circumstances where 'the initial up-front investment, as goodwill or "key money" by the prospective retailer is less than $20,000'. Under these circumstances the fuel re-selling agreement does not have to specify a duration. The apparent purpose is to protect the retailer's investment where the retailer has paid more than $20,000 for goodwill or key money. The effect of Trans Petroleum's construction is that if the retailer pays $1,000 as goodwill or key money the fuel re-selling agreement does not have to specify a duration but if the retailer pays no goodwill or key money at all the fuel re-selling agreement must have a duration of five years. That is an absurd result and finds no support in the text of the provision. In their ordinary and natural meaning the circumstances that the amount the prospective retailer must pay would be less than $20,000 includes the circumstance where the retailer does not have to pay
(Page 11)
- anything. Similarly, the natural and ordinary meaning of the words 'where less than $20,000 is paid up-front to the supplier' in the note to s 32 includes the circumstance where nothing is paid up-front to the supplier.
23 Trans Petroleum acknowledges that this ground of appeal confronts the further difficulties that it was not raised before the trial judge and it was conceded by Trans Petroleum at the trial that s 32(11)(c) applied. However, in the circumstances it is not necessary to give further consideration to those points.
24 Ground 2 is:
His Honour erred in concluding that the parties had agreed to concessions 31 - 34 mentioned in his judgment, which dealt with the motivation on the part of [White Gum Petroleum], when no such issue had been conceded by counsel for [Trans Petroleum], and the issue of motivation was hotly contested at trial. Having made this error of fact his Honour went on to make inferences which compounded his mistake and failed to properly consider [White Gum Petroleum's] evidence on the issue of fact when he should have done so. The result of the misapprehension was that his judgment was flawed on a critical issue - the bona fides of [White Gum Petroleum] and its motives.
25 This ground has no real prospect of success. Paragraphs 31 to 34 of the Agreed Facts concern the 'reason for proposed Gull single site operation deed and termination notice'. Paragraph 31 referred to the subjective beliefs of the group general manager for the Gull Group, the Group's chief financial officer and the Group's retail manager, each of whom gave evidence. Paragraph 32 stated that those subjective beliefs or reasons were the motivating or dominant reasons for White Gum Petroleum requesting Trans Petroleum to enter the single site operation deed with Gull. Counsel for Trans Petroleum did not dispute those facts. In closing counsel said:
We don't make any comment on 31 through to 34 - it's a matter for your Honour (ts 221).
26 The trial judge had regard to paragraphs 31 and 32 of the Agreed Findings in making his finding that White Gum Petroleum acted reasonably and in good faith. In closing counsel for Trans Petroleum expressly agreed that Trans Petroleum 'no longer contend that the [power of termination in cl 3 of the Agreement] was exercised dishonestly or in bad faith'. In any event, the trial judge considered and found that White Gum Petroleum had acted reasonably and in good faith.
(Page 12)
27 Ground 3 is difficult to understand. It appears to allege that the trial judge erred in construing cl 3 - the termination clause - by failing to give sufficient weight to the words in cl 4. The words in cl 4 relied upon are the words of cl 4.3 which provide:
Peak and the Retailer shall negotiate in good faith in the review of the Daily Fee but in any event by no amount greater than 12% of gross sales.
28 Trans Petroleum's submissions in support of this ground refer to the motives of White Gum Petroleum in terminating the Agreement and the conduct of White Gum Petroleum in the course of negotiations with Trans Petroleum and exercising its power of termination. However, the ground is concerned only with the construction of cl 3. The ground appears to be that upon the proper construction of cl 3 it does not permit Peak to avoid its obligation under cl 4.3 to negotiate in good faith in the review of the Daily Fee by exercising the power of termination under cl 3. The trial judge gave careful consideration to the proper construction of cl 3 - see Trans Petroleum Australia Pty Ltd v White Gum Petroleum Pty Ltd [31] - [44]. The matters raised by Trans Petroleum do not demonstrate any error made by the trial judge. Furthermore, the trial judge expressly found that White Gum Petroleum acted in good faith in exercising the power of termination and the grounds of appeal make no challenge to that finding. I find this ground of appeal has little prospect of success.
29 Ground 4 is:
In light of the provisions contained in the Oil Code and the agreement itself his Honour erred in law in not concluding that [White Gum Petroleum] should have issued a notice to negotiate and was in breach of its obligation to negotiate fairly and within the ceiling set out in clause 4 when it issued the termination notice pursuant to clause 3 when what it should have done was to issue a notice to negotiate.
30 At trial Trans Petroleum contended that termination of the Agreement was unconscionable pursuant to s 51AC of the TPA. It relied, in its pleading, on two matters:
1. White Gum Petroleum did not act in good faith in issuing the termination notice; and
2. White Gum Petroleum failed to use the dispute resolution procedure prescribed in the Oilcode (see Trans Petroleum Australia Pty Ltd v White Gum Petroleum Pty Ltd [54]).
(Page 13)
31 The trial judge found that there was nothing in White Gum Petroleum's conduct which attracts relief for unconscionable conduct and gave careful reasons for that finding: Trans Petroleum Australia Pty Ltd v White Gum Petroleum Pty Ltd [55] - [66]. In its written submissions in support of its appeal Trans Petroleum does not elaborate upon this ground of appeal beyond the bald assertion that:
By its conduct and failing to avail itself of the dispute resolution procedure under the Oilcode [White Gum Petroleum] acted in a manner that was not in good faith and which was inherently unconscionable.
32 Counsel for Trans Petroleum did not elucidate the basis of this ground of appeal in oral submissions. I find that this ground of appeal has little prospect of success.
33 Having considered each of the grounds of appeal I find that the appeal has little prospect of success.
Discretionary factors
34 Allanson J handed down judgment in the first action on 3 June 2011. In the following days there were discussions between representatives of Trans Petroleum and White Gum Petroleum. On 10 June Errol Stone, the retail manager of White Gum Petroleum, spoke to Walter Polok, the business development manager of Trans Petroleum. Mr Stone suggested that Trans Petroleum move out by the end of the month and asked Mr Polok if it would be alright for the premises to be vacated by 28 June. Mr Polok responded by saying words to the effect that that day would be fine. Mr Stone told Mr Polok that White Gum Petroleum should have the new franchisee able to do a changeover by then. On 13 June Mr Polok gave to Mr Stone a copy of a letter from Trans Petroleum addressed to its staff which was entitled 'to all staff, termination of fuel re-selling agreement' and stated:
It is with regret that we have to inform you we have until the 28th June, 2011 to complete our business and hand the site to
Gull who will appoint a new franchisee to manage the store.
Gull have informed us that the New Franchisee will make contact with us on the 16th or 17th June 2011 in respect to the staff requirements and that interviews may be conducted to check the candidate suitability, we will inform you of any changes to this date/time as we are notified.
This means that your contract with Trans Petroleum Australia Pty Ltd will be terminated on the 28th June, 2011 and you will then renegotiate your employment arrangements with the New Franchisee Manager.
(Page 14)
- On 17 June Mr Polok sent an email to Mr Stone stating:
A little confused regarding the handover of Kwinana can you confirm the date and time please. Jan Stinton has said that it will happen at 8 am on the 28th June 2011 is this correct.
36 White Gum Petroleum has entered into a new franchise agreement with Restell. The agreement was that Restell was due to commence operation as a franchisee from the Premises on 28 June 2011. Mr Stone has sworn that as a consequence of the nomination by Mr Polok on behalf of Trans Petroleum of 6.00 am on 28 June 2011 as the time by which Trans Petroleum would vacate the premises, White Gum Petroleum arranged for the new franchisee, Restell, to commence its operations and to commence the changeover from that time. White Gum Petroleum made arrangements to effect that changeover. Restell made arrangements to take over the premises on 28 June.
(Page 15)
Conclusion
37 I refuse Trans Petroleum's application for an order suspending the enforcement of the judgment in this matter for two reasons. First, the appeal against the judgment in the first action has little prospect of success and hence the appeal in this action has little prospect of success. Secondly, after judgment in the first action Trans Petroleum agreed to vacate the premises on 28 June 2011. White Gum Petroleum entered into a new franchise agreement with Restell and made arrangements for a changeover on 28 June on the strength of that agreement. If White Gum Petroleum is not able to obtain possession of the Premises and give possession to Restell White Gum Petroleum is exposed to a potential claim for damages by Restell and the potential damages claim may increase the longer Trans Petroleum delays in vacating the Premises. It would be unjust to make an order that permits Trans Petroleum to resile from its agreement to vacate the Premises pending an appeal that has little prospect of success.
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3
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