sen we ep ee orm Beatpe te NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY } No. G258 of 1936 GENERAL DIVISTON EETWEEN: ) } M. & G. WEHBE BROTHERS PTY. LIMITED Applicant CALTEX OIL (AUSTRALIA) PITY. LIMITED Respondent MINUTES OF ORDER Judge making order: Beaumont, J. Date order made: Where made: Sydney THE COURT ORDERS THAT: 3 July 1986 1. Note that the applicant renews its undertaking as to damages. ta Note that the respondent renews its existing undertaking to the Court until further order. Gs Dey proceedings. Reserve liberty to apply cn two days' notice. Costs of this interim application be costs in the Note: Fattlement and entry of orders 15 dealt with in Order 36 of the Federal Court Rules. -wp- , NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA ) ) : NEW SOUTH WALES DISTRICT REGISTRY ) No. G258 of 1986 ) . : GENERAL DIVISION ) - ¥ - ' BETWEEN : M._& G. WEHBE BROTHERS PTY. LIMITED : Applicant 7 AND: CALTEX OIL (AUSTRALIA) PTY. LIMITED pes Respondent wager f CORAM: Beaumont, J. DATED: 8 July 1986 REASONS FOR JUDGMENT The applicant seeks interlocutory relief that, pending the final hearing of these proceedings, the respondent continue to deliver to the applicant petroleum omroducts to the retail outlet conducted by the respondent at the premises situated at 110 Canterbury Road, Bankstown. In his affidavit sworn 29 June 1986. Mr. M.N. Wehbe, a director of the applicant. says that in early May 1986, the respondent offered to enter into a Reseller Supply Contract and Collateral Agreement for the supply of petroleum products. This contract and this agreement were intended to renew similar previous arrangements which were about to expire by effluxion of y ' "sf we ek ne ater Eat tena no Peet ame oe time. On 13 May 1986, the applicant executed a counterpart of these agreements which were to subsist for a period of one year at least. However, by letter dated 16 June 19846. the respondent informed the applicant that it did not propose to renew the existing supply arrangements. _ The applicant's case is that the respondent has engaged in misleading or deceptive conduct within the meaning of s.52 of the Trade Practices Act 1974 (the Act). Alternatively, the applicant seeks to invoke the accrued jurisdiction of the Court and claims under the general law an order for specific performance of what it alleges to be a contract to supply petroleum products. The matter is urgent and, accordingly, I have arranged for it to be heard. on a final basis, on 21 July. Since I will be hearing the matter myself, I propose to deal with the matters hejefly. In doing this, I acknowledge the assistance I have obtained from the written submissions forwarded by counsel. In my opinion, notwithstanding the futurity of the representations relied upon (cf. s.51A of the ! Act - iriserted by Act No. 17 of 1986, 5.21), a "serious question to be tried" arises as to whether the conduct of the respondent, taken as a whole, was likely to mislead the applicant. Given that conclusion, the suggestion by the respondent that the applicant was merely fabricating jurisdiction by raising s.52 of the Act we wet me, ~wws et ete seal ie a " ma Pe ay ; ', os . ' : - 2 ane ret 4 4 eS yte MODE aE ee Se verse ee RT - 0 RR Tal, EARS 7 EG ae eT OM me eR tT . SA eee Se ae eS ee I tte HK: tine Catt 2 4PN cine mernemanintanneaehnee eh ehache Mammo chet etem net re should be rejected, at this stage at least. The respondent relies also on a number of discretionary defences. One ig; that the respondent asserts that the applicant is somehow involved in dealing in stolen petrol. However, at this point of time, whilst I note that the application for interim relief came forward at short notice, the respondent has adduced no evidence yet to support the assertion. The matter was put to Mr. fichbe in cross-examination but he denied the suggestion. Another discretionary defence is said to arise from the nature of the relief sought: it may be said to be tantamount to an 'attempt to obtain specific performance of an agreement calling for the continuous supervision of its performance by the-Court. It is suggested that the Court should decline to exercise its discretion under 3.87 of the Act for reasons similar to those which would lead a Court of Equity to decline to interfere in such a case. There is obviously room for argument on the point but I must hold that there is. at least, a serious question to be tried in this respect also. Apart from the stolen petrol matter, in respect of which no evidence has been adduced by the respondent. the balance of convenience suggests that interim relief should te granted in order to maintain the status quo. The respondent has already proferred a suitable undertaking to the Court and has indicated : hte Mess Pee "eos & oe . oy os fF - eee oo RS ai ea apse A, Moses. hy oh eh ° 0 Jt ; . ' t a Sonia, ty Se ES gh WE Séuta = ee re sie Ee ee ee ae Ce . Tee AR mead ' et LS Ste 2 9d « 4. that. if the Court were minded to grant an interlocutory injunction, the respondent would prefer, instead, to renew its undertaking. I propose to make the following orders: 1. I note that the applicant renews its undertaking as to damages. 2. I note that the respondent renews its existing undertaking to the Court until further order. 3. I reserve liberty to apply on two days' notice. 4. I order that costs of this interim application be costs in the proceedings. \ i} | i ¢t \ i | t t I \