CATCHWORDS Petroleum marketing - termination of leases and supply agreements in respect of two service stations - allegations that lessees of service stations engaged in receiving stolen distillate - circumstantial evidence - analysis of complex facts. Petroleum Retail Marketing Franchise Act 1980, ss. 3, 7, 16 and 17. W.A. WEHBE PTY LIMITED v. CALTEX OTL (AUSTRALIA) PTY LIMITED No. G357 of 1986 W.A. WEHBE v. CALTEX OIL (AUSTRALIA) PTY LIMITED No. G358 of 1986 GEORGE HATTI v. CALTEX OIL (AUSTRALIA) PTY LIMITED No. G422 of 1986 Coram: Sheppard J. Date : 24 December 1986 Place: Sydney IN_THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ed G357 of 1986 BETWEEN : W.A. WEHBE PTY LIMITED Applicant CALTEX OIL (AUSTRALIA) PTY LIMITED Respondent G358 of 1986 BETWEEN : W.A. WEHBE Applicant CALTEX OTL (AUSTRALIA) PTY LIMITED Respondent G422 of 1986 BETWEEN : GEORGE HATTI Applicant CALTEX OTL (AUSTRALIA) PTY LIMITED Respondent SHEPPARD J. iQ io rn) Re asts a SYDNEY DATE : 30 DECEMBER 1986 MINUTES OF ORDER THE COURT ORDERS THAT: - For Orders see attached copies of Short Minutes of Order. b-< OTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. - —_— @ IN THE FEDERAL COURT OF AUSTRALIA ) ON y NEW SOUTH WALES DISTRICT REGISTRY ) 47 GENERAL DIVISION ) No. G357 of 1986 W, WEHBE PITY LIMITED Applicant/Cross-Respondent CALTEX OIL (AUSTRALIA) PTY LIMITED Respondent/Cross-Claimant HORT MI ES The Court notes, by consent, that the correct name of the Applicant/ Cross-Respondent in these proceedings is W. Wehbe Pty Limited and not W.A. Wehbe Pty Limited. The Court directs that the name of the Applicant/Cross-Respondent as shown in the Application in these proceedings be amended so that it reads W. Wehbe Pty Limited. The Court declares that the Respondent/Cross-Claimant by Notice in writing dated 23 July, 1986 and served on the Applicant/Cross-Respondent on 25 July, 1986 validly terminated the supply contract and lease being the Franchise Agreements referred to in that Notice on 29 August, 1986. The Court declares that the Respondent/Cross-Claimant is entitled to possession of the premises known as Caltex Service Station, 77 Hume Highway, Chullora (also known as Corner Hume Highway and Waterloo Road, Chullora) ("the said premises"). /o. DATED: The Court orders that the Applicant/Cross-Respondent give and deliver up to the Respondent/Cross-Claimant possession of the said premises. The Court grants leave to the Respondent/Cross-Claimant to issue forthwith a writ for possession in respect of the said premises and directs that any such writ for possession lie in the Court Office until such time as the disposal of an application by the Applicant/Cross Respondent for a stay of operation and execution of such writ for possession pending the hearing of an appeal if such an application is made on or before 4:00 pm on 4 February 1987 or until the expiration of the time for appeal at 4.00 p.m. on 4 February, 1987, whichever event last occurs. The Court orders that the Application be dismissed. The Court orders that the Applicant/Cross-Respondent pay the costs of the Respondent/Cross-Claimant in these proceedings in respect of the Application and the Cross Claim. Save in respect of paragraphs 1 and 2 hereof, the Court orders that the operation of and execution upon the foregoing declarations orders and directions be stayed until such time as the disposal of an application by the Applicant/Cross Respondent for a stay of operation and execution of such writ for possession pending the hearing of an appeal if such an application is made on or before 4:00 pm or until the expiration of the time for appeal at 4.00 p.m. on 4 February, 1987, whichever event last occurs. , e 30 December, 198 aan oa Pore ersereseoareseeoseos Come n eres sersrveesscccece Counsel/Sedicitear for the Counsel/Setieitor for the Applicant/Cross Respondent Respondent/Cross-Claimant ~ @ IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. G357 of 1986 W, WEHBE PTY LIMITED Applicant/Cross—Respondent CALTEX OIL (AUSTRALIA) PTY LIMITED Respondent /Cross-Claimant SHORT MINUTES MOORE AND BEVINS Solicitors, 60 Martin Place, SYDNEY NSW 2000 Telephone: 232 6800 D.X.: 189 SYDNEY Ref: RRN 24510/24.12 a IN THE FEDERAL COURT OF AUSTRALIA ) H WALES DISTRICT RE TRY ) GENERAL DIVISION ) No. G358 of 1986 W.A, WEHBE Applicant/First Cross-Respondent CALTEX OIL (AUSTRALIA) PTY LIMITED Respondent/Cross-Claimant GEORGE HATTI Second Cross-Respondent HORT MINUTES The Court declares that the Respondent/Cross-Claimant by Notice in writing dated 23 July, 1986 and served on the Applicant/First Cross-Respondent on 25 July, 1986 validly terminated the supply agreement and lease being the Franchise Agreements referred to in that Notice on 29 August, 1986. The Court declares that the Respondent/Cross-Claimant is entitled to possession of the premises known as Caltex Service Station, 563-567 Hume Highway, South Strathfield (also known as Corner Hume Highway and Fitzgerald Crescent, Strathfield South) ("the said premises"). The Court orders that the Cross-Respondents and each of them give and deliver up to the Respondent/Cross-Claimant possession of the said premises. The Court grants leave to the Respondent/Cross-Claimant to issue forthwith a writ for possession in respect of the said premises and directs that any such writ for possession lie in the Court Office until such time as the disposal of an application by the Cross-Respondents or either of them for a stay of operation and execution of such writ for +46 Dated: possession pending the hearing of an appeal if such an application is made on or before 4:00 pm on 4 February 1987 or until the expiration of the time for appeal at 4.00 p.m. on 4 February, 1987, whichever event last occurs. nay > The Court orders that the Applicatio she dismissed. a The Court orders that the 'A Crosk fospondent pay the costs of the Respondent/Cross-Claimant in these proceedings in respect of the Application and the Cross Claim. The Court orders that the operation of and execution upon the foregoing declarations orders and directions be stayed until such time as the disposal of an application by the Cross-Respondents or either of them for a stay of operation and execution of such writ for possession pending the hearing of an appeal if such an application is made on or before 4:00 pm on 4 February 1987 or until the expiration of the time for appeal at 4.00 p.m. on 4 February, 1987, whichever event last occurs. 30 December, 1986 ee ae eee eee ee eee eee eee re Counsel/Setteiter for the Counsel/Seticiter for the Applicant/First Cross Respondent Respondent/Cross-Claimant Counsel/Solicitor for the Second Cross Respondent IN THE FEDERAL COURT OF AUSTRALIA ) NEW_SQUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. G358 of 1986 W.A, WEHBE Applicant/First Cross-Respondent CALTEX OIL (AUSTRALIA) PTY LIMITED Respondent/Cross-Claimant GEORGE HATTI Second Cross-Respondent SHORT MINUTES MOORE AND BEVINS Solicitors, 60 Martin Place, SYDNEY NSW 2000 Telephone: 232 6800 D.X.: 189 SYDNEY Ref: RRN 24490/24.12 IN THE FEDERAL COURT OF AUSTRALIA ) 30.6% NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) No. G422 of 1986 GEORGE HATTI Applicant CALTEX OIL (AUSTRALIA) PTY LIMITED Respondent SHORT MINUTES BY CONSENT: 1. The Court declares that the Applicant is not a franchisee of the Respondent in respect of the premises known as Caltex Service Station, 563-567 Hume Highway, South Strathfield (also known as Corner Hume Highway and Fitzgerald Crescent, Strathfield South) ("the said premises"). The Court orders that the Application be dismissed. The Court orders that the Applicant give and deliver up to the Respondent possession of the said premises. The Court grants leave to the Respondent to forthwith issue a writ for possession in respect of the said premises and directs that any such writ for possession lie in the Court Office until such time as the disposal of an application by the Applicant for a stay of operation and execution of such writ for possession pending the hearing of an appeal if such an application is made on or before 4:00 pm on 4 February 1987 or until expiration of the time for appeal at 4.00 p.m. on 4 February, 1987 whichever event last occurs. 7. DATED: The Court orders that the Applicant pay the Respondent's costs in these proceedings. The Court orders that the operation of and execution upon the foregoing declarations orders and directions be stayed until such time as the disposal of an application by the Applicant for a stay of operation and execution of such writ for possession pending the hearing of an appeal if such an application is made on or before 4:00 pm on 4 February 1987 or until the expiration of the time for appeal at 4.00 p.m. on 4 February, 1987 whichever event last occurs. we) Fr) 30 December, 1986 a COTO Cero rer neeeenereroror Counsel /Salicsiter for the Counsel/Seticitor for the Applicant Respondent 0281M IN THE FEDERAL RT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) ENERAL DIVISTON ) No. G422 of 1986 GEORGE HATTI Applicant CALTEX OIL (AUSTRALIA) PTY LIMITED Respondent SHORT MINUTES MOORE AND BEVINS Solicitors, 60 Martin Place, SYDNEY sw is) Telephone: 232 6800 D.X.: 189 SYDNEY Ref: RRN 0281M/24.12 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT PEGISTPY GENERAL DIVISTON ~ewe wv BETWEEN : WA. WEAES CALTEM OIL (AMTSTRALTAY COTY LIMITED Fesronden: 74122 of 1996 BETWEEN : GEORGE HATTZ Avolizart CALTEX OTD (ANSTPALTAS PTY LIMITED Dasvongent DATE : 24 DECEMBER 1986 REASONS FOR JUDGMENT HTS HONOUR: Fach of these apolicatios 15 an a20riicatian made Fhe Act had no effect. TF the notices did have sffact, the gopiiecants' cidahts to comkinue in oceuratran of rwe service stations vill ba sclaced in ve 9oparday. In cross-claims brought in matters Ne. G357 and G359 of 1386 Caltex has emutmnh crders whith. "mn application Mo, G35 of 19RPR, Mr. WA. Wehbe. toth narsonallv and in his capacitv as a director of the applicanc in avolrtatioan No. 9357 oF 1996, WA. Wehbe Pry Limited. im a number of qecasions. knew ingly voarticisated in rhe yreceror 3F stolen Aistillate. Mr. Wehbe and the caompanv deny these allegations. The vorincircai 1ssue in fhe anolications 13 wheather the Aoniication Mo. G357 of 1996 concerns a sarvica sratiar condutted by the applicanr in that matter, W.A. Wenbe E+ Limited 77 Hume 3. Highway. Chullora. a Svdnev suburb. The other applications each -95467 Yume ww concern a service station situated at premises 56 Hichway. South Strathfield South. another Svdnev suburb. The Py oO y ct p fs) eyfe)ww wi wre be re) oO mn x4= » acplicant in appl Wehbe. is the lessee named in the lease of the service station. The aoplicant in matter number G422 of 1986, Mr. G. Hatti. claims alsa to have of 1986 and has brought a claim in that matter for celief af a similar nature to that seudht in his apolzcatian, No 3422 97 1926, The three applicaticns were heard together. The evidence in each core was, subject to cuestions of relevance. ordered to bs avidence in each of the others. Additiorally. use was made of a number of affidavits filed in another avonlication (No. G289 of devoneants af these affidavits were not required to reswear their affidavits in the oresent applications. Anolication Vo. G258 of r Dp ma Nn Fy Fit) Avy re?) 1D at it ro i) fu5 fanFe] + rt b v s — a b xxwl Fey b w % fhe hearing of i "S a =] fe) y B un 1D w Q nm D> » c=] Dat rv mn fer 'Dp rh be J D pe rain ) mh + Ly! 'D ip ny oa + o a D wb i) al aqreem (Bp) nt 4. containina:- provisions, whether express or aimpiired, under or by virtue of which a corporation authorises, permits or requires a person. being ancther party to the aqreementk,. to use, in comnection with the retail sale of motor fuel by that person at the premises £2 whicn Tne aareement cealaces, a2 mark identifving the corporation: ercyvisions. whether express cr implied, cvirder or by virtue of which a coreeration wrants 4 rlighr fo. or atherwise authorises or permits, a oersan, Peins ancther varty to the agreement. premises 9 which the with the retail sale of motor fuel: provisions. whether exzoress or aumplied, onder cr br virtue of which - (i) A corporation is accustomed, antitiad or reautred fo supoizy motor fuel toa person. being arcther party fo Fhe agreement. for retail sale av Fnat person at the premises ta which the acreement relates: or (iil a person aAarees with aA corvoration to acquire moter fuel fram another person (whether a oarty ta ao Pi ray oD w wT wT fom 1D the aaqreement or not) for retail premises to which the adreement relate uw In the Act the corporation 1s referred to as the "franchisor": oersons with whom agreements are made bv franchisors are known as "franchisees". sartiv formal and parcly informal, whether or not having léeaal oc equitable force, and whether or not based on legal or eauitable Section 7 af the Act provides that 1t anolies. rotwirthstanding anv aqdreement fo the ccentrary and, in sarticular, on or arising out of a orovision of the Acr. The directly relevant section of the Act in these apolications is $. 15 which deals with the termination of franchise agreements. It proeviaes that ao franchiscr may terminate a franchise adreement in accordance with the succeeding provisions of the section, "but not «atherwise''. By sub-section (2) a franchisor shall not A. terminate the franchise aareement except oan ane or mors af a number of specified grounds. The arounds relied upon in the present case are those vorovided for in vara. (2)(c) of the section which 15 as follows:- "(q) the franchisee oerforms an act, amits ta perform an act, oar makes 3 statement. where the act or omissior, ae the makina of the statenent- (i) constituces an offence punishabie br iumorisonment or. in the case of a franchises beina a bed corporate. by aA fine of $5090 or more; and (il) in the case of a2 franchisee berra a natural person, tends fo show that he 1s dishonest of 1s otherwise not at rood character: CY a teanchise agreement by che franchisor shall he eitected bv rhe fhe notice 1s served, and setting cut full oarriculars of «the around or grounds, including a staten »Tv QO rh Tv each around. upon which the rerminatioh 1¢ based. Sub-section 16/4). oursuant fo which each of the applications is brought. provides that, where a franchisor serves nonice om the franchises a i) in) a fom i mn 1D n wd + oi) 1's FS] P D AN] ral rm ba] Q t i % w Q ns Dp 1D Fe Dct it 'D Lal) "S wwNn oe BR m iD 1D a a Ss nad, or to have. no effecr. 7. Sub-sections 16(5). (6) and (7) provide for the natur arders which the Court mav make. These sub-sections are follows:- (5) Where an application is made wnder sub-section (4), the Court may, bv order. eit (a) referred £9 1n that sub-section to have had, cr toa have, no (b' declare that notice to have terminated, ar to terminate, the agreement oan the date snecified in the notice or on such later date as is soecifred in the arder. and may, in ei or conseauent: including orde and execution of {6) In any voroce f4), the court sha referred to in fF 1 ferminated, or to terminate, the francniss aqreement unless- Lo not declare the notice fa) a around speciried in the notice is eastablished by fhe franchisor 72 the satisfaction of the court; and (b) the court 1s satisfied chat the kermination of the acreement and anv yelated aqreement or adqresaments is tusk ard equitable. having vredqara to all the circumstances (7) Without limiting the qenerality of paragraon (4)(b), the circumstances referred fo in that vcaraqgrarh include the conduct of the franchisor and the franchisee after the fime when the franchisor hecame aware cf the existence of the circumstances, or the accurrence of the avent, censtitutina the ground referred to in paragraoh (6)(a)", Limited - not W.A. Wehbe Pty Limited application No. G357 of 1986 would suaqgest discresancy was made durina the hearing, consideration should be aiven to amending the title of the proceedings. The lease 15 i years commencing on 21 October 19935 an September 1998. The term of the lease n against the background of s. 17 of the Act franchisor shall not fail or vefuse *& agreement except on one or more of a number Tt follows that. 1£ the comaany withed ta 5s. 17, In addition ro the lease. thers dated 4 December 1985 between Calrex a pneovides for the sale to the company cf suc petroleum oroducts "as ar® necessary to ¢ as the title of the . No mention of this put 1 may be that the company's name in ad of thre for a ane mesre) D d tern ye =} a reLW o a ne on A eeds to be understos ct wo which erovides tha o renew ai f chi NS a) a Mm 1D fen bl of svecified Q s oun svontinue in occuratrion 14 sould de so unless for Caltex perroleum oroducts at the gervice stacien during the mn he [e)ua wT ie) & He) i n conditions and other ovrov refer. The sericd of the agreement cainec1 the lease, namely, the veriod of thr ty D Netaber 1985. The agreement, like th Db agreement for the wsurposes of the Act. rmination uren which i) po] a wt I a O11) re) ih + Dw tJ Les) cy c ran <4 w re) ow n iy ot)Oo Tt rn oO 1) n ommences with r tontains aonumber of des with the voeriod 72 D Ny ts infa}a oDni] Q ny sa 9, and the other agreement. which is referred fo as ai ""sunply contract" and with the statement that both the lease and the su contract constitute franchise agreements ta vhich the Act he < p i) s. The notice then savs that, 1n accordance with s. 146(3) BY) 'DS pli f Act. Caltex gives notice that. "uson the followird around, hu m n +t a e Lease and Suoplv Contract are to be terminated on the 29th dav of Auaqust 1986. Caltex recuires vou ta vacate ard give oessession of the premises on that date". The notice in fact contained nine grounds. 7 ornpose tao set out the first of these together with the partitulars of it ard Khe statement of facts in supooct of it. I shall then refer ta the remaining grounds. the varticulars of them and the starement wvpa tr oe iD a H)) ry at aadc i wuwn »aA wn at Est) at a) FS i) i] ct Q rt m w iW] ct n ss D rar fu at3 Q wr Loe iy rs iD Tv re) iD "L, _ FIPST GROUND The Lease and Surriv contract are being ferminateit bv Caltex timpon the around erred to im Section 16/2)fc) of the Act, namely that the Company ormed an act which cs i nce punishable. in the ca nchise (sic) being a bo a fine of $5°9 or nore. Ss 0D thry- Fh Dm th mov: 'gm AD. w A Q oO rs 1.1 Particulars of the Firs Statement of Facts Pelating There The Cempany received at the premises cn the 20th March 1986 a auantity of &.700 litres of distillate the prenerty of Caltex. the Company at the time of receipt of such disriilate knowing same ZO have been stolen, te 10. At the 20th March 1986 Walhan Abdullah Wehbe was a director and shareholder of the Company and was the person who controlled the activities of the Companv. Section 138 of the Crimes Act. 1990. as amended in force in New South Wales ("the Crimes Act") provides. inter-alia., that whosoever recelyveas any property, the stealing whereof amounts to a felony. knowing the same 7% been stolen. shall be auilty of a felony. and may be indicted. and a be liable to penal servitude 7 years. Section 7 of the Crimes Act vorovidces, inter-alia, that where the felonious receiving af anv vcroperty is @xoressed in anv Act to be an offence. everv person shall be deemed £9 have such propertv in his possession within the meaning of the Act who has anv such property in his custodv, or knowinal7 has anv such property in the custadv of another person or knowingly has anv such property in oa olace wherher belonging to him or oecupied bv himrseti Or not and whether such property tus Fhere had ar olaced for his cwn use. oF fhe use of another. Statement cf Facts of the Firet Ground At or about 9935 hours on the 29 ch dav of Marcn 1996 Caltex Tanker Tab Reaistration FOQW-607, Trailer Litence CF-70823 driven by John Harold Martin arrived at the premises. A' or about 9850 hours Martin beqan discharains distillate trom the tanker unta underground storage at the premises. At or about 9855 hours, whilst the distillate was being discharqed into underground storaqde tanks, fhe s$aie Walhan Abdullan Wehbe arrived at the premises and conversed with Martin. At or about 0902 hours Wehhe departed from the premises. At this time a person working at the oremises climbed cn toe of rhe tanker and azxamired the measuring sticx ain the tankers. AR ar About ag? heurs Martir, NATLiNG TQ. At the 20th March 1986 Walhan Abdullah Wehbe was a director and sharehcider of the Company and was the person who controlled the activities of the Company. Section 188 of the Crimes Act. 1900, as amended in force in New South Wales ("the Crimes Act") provides. inter-alia. that whosoever receives anv eroperty, she stealing whereof amounts toa felony. knowing the same to nave been stolen, shail he quiity felony. and may be indicted. and be liable to penal servirude f years. f h yo.) tm tion 7 of the Crimes Act provi er-alia, that where the felon csiving of any property 13 @xp s in anv Act & pe an offence, eve person shall be deemed f7 haves su provertv in his vossession within th meaning of the Act who kas anv suct property in his custody, or knewingl7 has any such cropertvy in the custody cf another person or knowingly has anv such proverty in oa place whether belonging to nlm or saccupied by hnimsels or not and whether such property is Fhere had or placed fcr his own use. or the use of anot: : iS) i iy S30 oa fy OS 2 ou ip) te) iD ty Statement of Facts of the First Ground i ey oh At or about 0835 hours on the 20 of Marcn 1986 Caltex Tanker Registration FOW-607, Trailer Li CF-7083 driven by Tohn Haroid Ma arrived at the oremises. Ark 9850 hours Martin beqan du distiliate trom the tank underqround storage at the At or about 0855 hours, wh distillate was being discha underground storade tanks, Walhan aAbduliah Wehbe arrive premises ard conversed with Marr or about 0902 hours Wehbe depart the premises. At th working at the premi of the tanker a + 4 'y sw ae Qos oO PD 1D ta ry | wv ye try JODO oQGadw ts rs Rd poORS SAD oO aun DB mor pre a o0'6 | 3 et 3A to DODM- Ss th Tot as iD YO09 Pow eyo et Doe A wy i ueQ5 0 5 measuring stick ain ol : about A912 nAcurs Martin, havin ll. discharaed into underground storage at the premises a quantity of 6,700 litres of distiliare. drove the vehicle from the oremises. The quantity of distillate as aforesaid comprised part ef a quantitv totallina 27,090 litres loaded bv Caltex at its Banksmeadow, NSW terminal and invoiced for delivery bv Caltex to the State Ra1l Authority, Loco Runnina Yard, Enfieid, NSW (Invoice Na. BAO8435)". The second ground 1s to the same e«ffact as the first but in resvect of a different consianment of distillate. The quantity between 190.00 a.m. and 11.00 a.m. rather than between 8.30 a.m. and 9.99 a.m. The driver 1n each case was said to be one John Maroid Martin. The third around is in similar terms to the earlier two but alleces a receipt of stolen distillate by the comeany between 4.39 p.m. and 5.09 p.m. om 21 March 1996. The driver of rhe fanker was said to be one Dennis Leslie Beawortnh. The fourth ground 15 in similac terns to the ear La A iD a ny ie] 1) un dub was alleged in respect of a receipt of stolen distillate which occurred, not at the Chullora service sration. but at another Caltex service station situated at 110 Canterbury Poad. Bankstown. The lessee of that service sration was not the lpn D 12. nN wt coFh —oo n i) Q tetcp eo) D < 1D i] fom Dp iD pa 1) io) m py) jt I ch} Q i) ts)ib re) iD 14s Oo wT™m uw wtfay OY) + pea »1) Dt o fa) u it < ate by the company. that is. the avplica a pu H re) cr ao Ee fa imited. As will be seen when [I come to the evidence, thera is no evidence to support this alleaation. It is not, therefore, anen to Caltex to relv on this cround in relation to the Chuliora Was. In consequence a ground in similar terms 15 availahbie to faltex in relation to the South Strathfield service station of which Mr. Wehbe is the franchises. Whether the aground kas heen made out 1s 2 matter I leave until Tf have considered the x wDoD au 'S ot fe) ry [py Tt o rae Of2. te] Tt ~. pany ran w a D lox <4 hi) nq Dd Ej ge) o i] a y aD wt a Bo 'D be] '© fae o pnymy hal A. D N a yu a) a cy payi) ~ Ke} m a ny Tv wv y m dy ot yr ro aay t Oo Ley su 7) i) s <q r re) D is?) wt By w+ H fe) Rather they allege the commission by the companv of different offences arising out of the same incidents as are relied un)en in the earlier grounds. Ground 6 alleqes that the company consotired and aqreed with My. Wehbe, Mr. Martin and Mr. Bedworth t9 commit » aT Oo n offence, namely. to cheat and defraud Caltex and the Sta Rail Authority, and did solicit. ercouraqde ar sersuade persons including Mr. Wehbe. Mr. Martin and Mr. Bedworth to cheat and defraud Caltex and the State Rail Authority. The tacts relied upon are those relied uvon in support of the first. sacand, third. fourth and fifth grounds of the notice. Wrthout ceind te the decail of ait. around 7 alleges that the company vas an are said to have stolen the distillate. The eighth around alleves that the company. with intent to cbhtain for the barefit of 1*self and other versons. inciudir: Mr. Wehbe. Mr. Martin ard Mr. Bedworth, 2 valuable thing. namely quantities of distiil the property af Caltex. did coercur in the makine of 32 written statement. oarticulars of which are civen. whith was mown to the company to ke false or misleading 17 a material particular. That yo D a < iD ia +t ' 1D vo inth ground which need nor be referred co further ty D iP) w = or iD Is wa ur at relred upen at the hearing. The service statian leased t2 Mr. and Mrs. Salonitides 23 lease was dated 25 May 1984 and was for a period of three vears from 29 April 1984 to 28 April 1987. On 20 May 1984 the lease was assigned, with the consent of Caltex. ta Mr. Wehbe. fn 5 June 1984 a supply agreement was entered unto between Caltex and ' Nething turns on the fact that ii ae fw a rs fe] n the Salonitides' and th 16 was executed after the asstianment to Mr. Wehbe whith had been Ss DB ny a DTfi) 107) cal) ay ND> tb a a wD effected on 20 Mav 1984. The supyolv ad veriod as the lease. Section 17 of the Act would prevent Caltex from refusing to renew the lease and supply agreement against the wishes of Mr. Wehbe except cn one of the greunds srecifzed in the South Strathfield service station are identical with grounds 1 ta 7 in the notice relied upon in relation to the Chuilotra service allow for the fact thar Mr. Wehbe, rather than the comvoanv. is the lessee of fhe South St iathfield service sctaticn. Tn the apolication relating to that service station Caltex 1s. as I have a mentioned. able tq rely on the fourth around relating cat v oa iD pany 1. Pes 1D"4 a) mh fay pe un it B ree) In Avy wv 1) a- vy Do rm wv rv?) Ttzm arv.its m a ation on 9 May aut: para. 16(6)(al of the Act. If any of the grounds is established, further questions will arise. One of these is rhe effect of such a finding in relation to Mr. Hatcri. In his case there 1s an initial question whether he is a franchisee within fhe meaning of the Act. Whether he is or not. further questions will arise whether the Court is satisfred that the determination ot the agreements 1s fiust and equitable having redard te all the circumstances: see vara. 15(46)(b) of the Act. The first matter to be considered then 1s whether the grounds have been made out. The determination of this question involves a consideratien of the evidence which counsel fer Caltex conceded was circumsrantial. There was no direct evidence ta supoort anv mf the allegations made in supvort of anv around. The alleqation in gach case is that Mr. Wenhe was involved in the commission of 1S 1s said te have heen the hand whith A little nesds to be said of the standard of proof. Altheuch + the question is whether Mr. Wehbe and the company were parties te ane or more crimes. these are, nevertheless. civil oroceedinds. The standard of procf ais upon a balance of ovrobabilities: sae Helton v. Allen (1940) 63 C.L.R. 692. But in considering the evidence and determining whether o is pe) re) Tt a > a ia) w fe oT 'Dr iv) ws fer iD i m fom ib 'D made out, IT must bear ain mind the wa D rs Be Q Kt avu mn n fe) rh wT ey o p an Ie 1Dw aT te oO D m 16. which are made: Briqinshaw v. Bridginshaw (1938) 60 C.L.R. 336, particularly at pp. 360-363. However, the standard remains that of proof upon a balance of probabilities. not proof hevand reasonable doubt. The distinction was emphasized in Reifek 7. McELlrov (1965) 112 C.L.R. 517 where the Court said (op. 521-2):- ip) ib 'G Reweag read SO Die 34 D a "But the standard of oroof case and the relationship of persuasion of the mind balance of orobabilities otherwise of the fact of who mind is to be versuaded confused. The aifference be criminal standard of sroof and standard of oroof is words: if is a matter of No matter how sarave the found in a civil case. be reasonably satisfied and has not wi respect to any matter in issue in such proceeding to atta1 2 ecertaintv which is 121 support oF a conviction upon 4a crim 'D Qo ay ww arn po p' a rh i iD to ot DB Ay vy fii) D v3)o aw it an onpDyoow iq Ds 3 w rey 'QOor 43D fr) Tae te Pp Ps) 0M a wy ib ny ore > wT oO Mm: 1D iB a fam DD D yw ors an mit ES p B- n He) i rey ot + ore] n Tito ot > oO iT wi dm Too-: iu eharce ... Tn arder to place the evidence in a eroper framework. if 15 necessary fo consider 16 against the background of rhe relevant provisiens of the criminal law which apply. These are tao be found in the Crimes Act 1900 (N.S.W.). The crime of receiving 17. tT felonious receiving of any property. or its possession without e, is ex sed to be an offence, every th Ls a in lawful cause or excu 'd oerson shall be deemed to have such orosverty in nis possession within the meaning of such Act who has any such property in his custody. Larceny itself .i5 provided for ins. 117 af the Crimes Act. Ts too is a felony. Te may be mentioned in passing that the Crimes Act orovides in s. 9 that, whenever by the Act a person is made liable to the ounishment of cenal servitude. the offence for which such punishment may be awarded is a falonv Wherever in the Act. the term "felony" 1s cased, the same shall bea tazen to f=] rai) w a fo a o rh ry b a re) i) ue} c fa} # nn ay im oO e D lon g 'S 'Dfo ra m 1) 'S d my st ja. mn Section 476 of the Crimes Act provides for the summary cunishment of some indictable offences, Reaceaivind stolen orenerty 1S one such offence. Section 476(7) crayides that the person may be sentenced by a magistrate under 5. 4764 in reenecc Section 360A provides for the indictment of corporations for offences. Every provision of an Act (including the Crimes Act} relating to offences punishable woc0n indiccment or upan summary conviction may. unless a contrary intention appears, Fe construed ~~ 18. led to bodies corporate as well as individuals. o [@) v fu) Ay) 'S be ap rag py Section 360A(6) provides. so far as relevant, at, where the penalty in respect of anv offence is a Ferm of imorisonment oaniv, the court before which the offence is tried mav. if it thinks fir, in the case of a bodv corporate, impose a pacuniaryvy penalty not exceeding, where the term of imprisonment exceeds two vears,. §2.Q000. "Imprisonment" includes venal servitude. The oenalty provided for the offence of receiving stolen property 1 ra) penal servitude far ten years: s. 189. Tt follows from this analysis that. if the company cr Mr. Wehbe or both of them are shown to have received stolen crorerty, acrs which constitute offences punishable by a fire of 2599 ac more. In the case of the South Strathfield service station ut will be established that the franchisee. Mr. Wehbe. has cerformed acts which constitute offences ounishable br imprisonment. In this case it may also be established that the makira out of one or more of the grounds will tend te show that "r. Wehbe ius dishonest or otherwise not of qadood character; see siub-vara. 16(3)¢e)f11). TE remains to menticn ss. 245 and 346 of the Crimes Act. The formar section orowvides that everv srincival in the second derres 19. nn princival in the first dearee. Saction 346 vorovides that An <¢ 1D 'g accessory before the fact to any such felony may be irdicted. convicted and sentenced as a princival in the felony and shall be liable in either case to the same punishment as the vorincival support of the qrounds relied upon in the two notices. In she course of the hearing 1t emeraed that Caltex had expected ta he able to call inits case Mr. Martin and Mr. Bedworth who 1h secvice of subpoenas upon either of them. Te would have been apen to it to seek an adtournment to enable them to be called. but na avplication far an adiournment was made. The absence oF @assential facts:- l. On gach of the days an which stoien distiliate was sard ta have been delivered fo Chullera and. in the one case, 9 Bankstown, orivate investigators, and in ene case the solice, 3) 20. observed a Caltex tanker at the Chullora or Bankstown service stations apparently making a delivery. There 1s disoute concerning what the investigators were able to see. and this 1¢ a matter to be dealt with when I come to the detail of each investiqator's observation. But Caltex's case is thar on each occasion fuel was being delivered, T have used the word "fuel" because. axcert on the Last occasicen or 3 June 1986. the investiqators wers unable to esta deliveries were of distillate. Thev may have observation was such that it would not have enabled them to nell. Ir four cages the fuel went inte one or more tanks an the was the company. In the other case the fuel went inte ons o mere tancs at the Bankstown service starion The evidance 21. control over the overations of both service stations. 4. In the absence of evidence to explain how the fuel came to be fa Tv o fp Tt delivered to the service stations. it should be inferre the deliveries on gach occasion were of stolen distillate ard hat it would have available to it r wv p fo) io} fe) > ie) fu ay + p nl v ot rey tin and Bedwerth was nom the only ' w iDv A. 1) ian n iD oO Fh i) ry rt) s Infu 1s expectation it had which was not realized. Arother was fhat it D mY Oo ny fp "o ns OQ q Pp m rm Oomn fe) call Tw oy nf] would be able to use the business ¢ Evidence Act 1914 to intecduce into evidence a number of its own internal documents. But some key documents were nett admitted. Indeed, in the end. coun¢eel for Caltex did not gress the tender of then Ceitical documerts for Caltex were docimen-- known as bulk trio logs According to the system which Caltex emeloved., destination of the delivery and the times ir ard out of the Ferminal. In each case it was intended that the dciver gitar the cecord. The frouble about the bulk trip logs relevant to the present case 15 that they were not siened Furthermore, the Caltex witness. Mr. Lambrianew, through whom 'the documents were iD oroduced was unable to identify the handwriting on them notwithstanding that the names of either Mr. Martin ar Mr. Bedworth appeared at the tap of 'them. Tt was in these circumstances that the tender of the bulk trin loas for the delivery effected on 21 March 1986 was admztted as were two Other documents which are in evidence are three invoices toa whe Stace Parl Authority for consignments af distillate on 20 ffyvo conslanments) and 21 March 1986. These documents nad been annexed to an affidavit sworn by a Mr. Aifred The alfidavitr nad not read in its case. However. the impvoices were tendered by sounsel for the company and Mr. Wehbe because thay were said 2 be for cansiagrments of fuel alleged toa have been stolen on these davs. The reason counsel wished them in evidence is that cn each aneears a stanmature pursorting to acknowledge receinot. or behalf af the State Razrl Authority, of the full amount 2£ the delivery in the invoices to anv particular times during which the vehicles in question were absent from the terminal or to anv particular delivery of fuel. ih The first cround alleges that on 29 March 19986 a quantity 9 6 700 litres of distillate. the proverty of Caltex, was received of N.S.W The name o the authority 1s crefaced by the words. "Charqe ta". The amveice also contairs an instruction to send The distillate which 15 referred ta in the invoice to the State Pail Authority's Loco Running Yard at Enfield near Sviney. vehicle No. 240 and that the trio was No, 096. The invoices has been signed above a orinted nctatzar, "Goods received as Above". The signature is difficult to make out bub its voresence would suggest that the invoice was siqned by an e#molovee of the State number is FOW-607. Coupled te the prime mover was 32 petroleum oroducts teratler tanker numbered 232 Thi¢ vehicle 12 cwmed bv Caltex and has the registration Ne. CF-7093. Mr. DLR. Teraviri is a licensed ovivate inquiry agent. According to hig errdiance, he commerced vatching 'the Chullara service statisen at abour 2 4 m,. a Sanker wagon into the garave. The vedqistraticn number fF che orime tovec was FOW-607 and that of the tanker wagon CF-7Ca2 At concluded that a load of motor fuel was being delivered fram ths 25. At 3.55 a.m. he saw a Mercedes Sedan motor car. veqistration number WW-500, enter the service station. He saw a person whom he recognized as Mr. Wehbe arrive. He said that Mr. Wehbe sroke with the driver of the tanker for approximately five minutes and left just after 9 a.m. Art 9.12 a.m. the driver discennected the hoses and left the voremises. He said the driver was apcroximately 5 feet 10 inches high, abcut 45 years of ace and had short. sandy nair. Mr, Travini was evoss-szamined closely about 1s oheervatiors This Tross-examination established thar Mr, Teavini's view was limited ard Ehat it 15 unlikely "nat he sav the tors of tanks being removed. Moceover, there 23 Qa auestian w+ cr ry fir) ms iW omnupu Qq Q3 wt > D an 1p] my a D in fae pf wt BoO w J Fa t oa rey it bes it ph a pL discharge fuel into ar least ore of the tanks in che service S e oDmy mM fe) ts i) ur oDfaa fu = sy re a 'w A % oa evidence also establishes that of the time that the tanker was there. Tt is common cround between the voarties that no distillate Ws »4 nm ¢ ie) [an 1D Pan r <g 1D " < & Ww m A ow fal Oo) The evidence 1s silent as to whethe at the request of the company or Mr. Wehbe on that dav. As mentioned. Mr. Travini would not have been able ta tell whether Purthermore, although the unvoice 15 an evidence, there 15 norhing to show the times during which the deiivery referred to in that urco1ce was made. Mme dees not therefore know whether fhe deliviry was being made, or was intended +7 he made. during the period Mr. Travin2 had the orime mover and tanker der observation. Really. the invoice is unheleful in esctablishine the worime mover and trailer observed by Mr. Travini at the Chullora service station on that day. Cooies of the bulk trip Martin or the orime mover and tanker observed by Mr Travinz at the Chullora service station or 29 March 1986. Originally, counsel for Caitex soudht ca tander the bulbs tr219 loas. The difficulty about their tender. as TI have mentioned. un om ps) oe] on 'a rs rs Pr a ja a Q t4 ut a a wv uw te and Mr. Lambrianew couid not identify hi those circumstances Phat counsei withdrew the render but svomittred that the balance of what Mr. Lambrianew had said vas wimissible. My note of what occurred, which anpear un wp iT '%D tw Lo feFh Lanbrianew's affidavit which identified the bulk trio los. T Further noted that counsel for Caltex did not press "herr terder 28. the hapoeninag of all events of that descristion. oral or other evidence to establish that there 1s no record of the haopenine of i) a Tt > Hy as] ae] om0 ay 'D a vr r QO'S De) Q <q H Qu fiiy m ras ty fy) ct FS He Dp S DB wD ad ie. [ony ty oo] n a = ui ie) ry a n that the whole or a voart of the record concerned he voroaducead. What counsel for Caltex was concerned to do was to tender the secords searched cut by Mr. Lambrianew in case the Court should a BD et H fey v o a uw t fa) za Sy b fey mr MH a< D ay wD mh AD i] Da] iD fu Pam Dbfay un it ia) Oo) a in lon imM wea i + at iy D Tn summary then the evidence lad in supocrt of around cone 1s capable of sstablishirng:~- fas R delivery of fuel of some «ind was mtaie by 4 Caltex fFanker between 8.30 a.m. ard 9.30 a.m. on 295 Maren (b) A delivers of distillate to the State Pail Aucherity was unspecified 'time on 29 March 1236. The delivery. uf eatfected, was affected in the same tanker and trailer az I propos? to defer coming to a conclusion on whether the first qround has been made out until I have considered the evidence led in supwert of the remaining grounds two to five inclusive, The second arcund relates to a seacand ctansignment of distillate said to have been destined for the Stare Pail fas n 'DB Authority on 20 March 1986. In evidence 13 a Caltex invo dated 20 March 1986 addressed to the State Rail Autheritv of orice of $12,527.99. The inveica 1s rmumbered EA03437 and states That the consignmene was ta be sent to the State Qail Authority' s Loco Purnina Yard ar Enfield. The iunverce 19 sraned atcve the wercs, "Goods Rece1tved as Above" oy the same verson tne siqied inveice No BAOR435 forming pact cf the evidence raiied upon ir suoeert of the first qcround. The delivery wag adazn to he effected by vehicle Ne. 240. This was the zame nvrime mevar is was referred to in the earlier invoice. 30. him withdraw the hoses from the underaround tanks and return them > oD to the vehicle. The vehicle left t oremiges at 10.43 a.m. I have earlier mentioned that it is tommon aground between the al Chullora service wT w ct o TT Hom iD narties that no delivery of distilla station on 20 March 1986 was vecorded either by Calrex or the words, "Goods Peceived as Above". The invoice recerds that 26.3900 litres, rather than 27.9000 litres. were delivered Tha raised in resvect of the delivery referred to in the invoice. I+ 31. shows that the driver of the vehicle was Mr. D. Bedworth and that the wehicle left the Banksmeadow Terminal at 3.15 o.m. and i) ror < BY) S n a'Dp co n si ob returned ac 5 o.m. The bulk trip log as dat dav oF the month has been omitted but nothing turns on this. The evidence of Mr. Lambrianew establishes that vehicle No. 399% 1s a orime mover owned bv Caltex ard has a registration rumber, NER-593. It was counled to trailer tanker which was alsa owed ty Caltex and bore the reqistration number CN-4549, Mr. R.L. HYarcnetr is a licensed crivate inquiry agent. He said that at approximately 4 o.m. om 22 March 1996 he commenced watching the service station at Chullcra. At 4.34 p.m. he abserved aA orime mover and tanker wader enter the oremises fron che north The reaistracicn number of the crime mover was NER-593 and that of the trailer GN-4949, His evidence that the tanks, replace them on to the trailer and. at 4.46 o.m.. leave the oremises heading in ai northerly d@zrection. He said The 32. spectacles. Mr. Hartnett said that he had seen Mr. Wehhe leave the service station at 3.50 p.m. Ye saw him return at 4.49 p.m. Mr. Wehbe was not present, therefore. whilst the tanker was ina) ay 1D ct aT GH Su i Q c D caly aoO(p ie n 1 Mr. Travini. Mr. Hartne m fo be iv) ro Ie fa <4 ny D ¢4 Ia Wy uy DB ib4 m Db + py 'b '§ is observations. particularly hi > fuel was being discharged and his observation that theres wera a number of hoses in use. My conclusions in relation to Mr. Hartnetct's evidence are similar to tnese in relation to Mr. Travini s evidence. [I accept the qenerali purport of it but have A reservation as to whether more than one hose could have been used. Tt is common crourd char there is 9 record of erther Caltex or the company which discloses any delivery of dishillate to the 33. conclusions for the time being. but at the service station leased to M. & G. Wehbe Brothers Pky Limited az Bankstown. I have sarlier said tnat this ground is 'S '3 jaQ oO s. fo tu oOw nov available t2 Caltex in the avolication cance because the provisions of para. 14(1)(¢) of the Act do net apply unless 1+ is the franchisee who yverforms a relevant act. in this case, knowingly receivina stolen proverty. The franchisee af the Thullora service station is the companv. If the evidence establishes the recerptr of stolen e¢distiilare at the Barkstown service station on 9 May 1986 16 will. nevertheless, not dont. But. if the facts relied upon in sunoerc of the around ave established, the similar zround in the notices cencerning the Sonth Strathfield service station will be available to Caltex arity of the grounds in each notice I pravnose ro consider the evidence led in support of the around at rhis coint. But I emphasize that the around. if established, will 34. a.m. and 11 a.m. on 9 Mav 1986. [In evidence are three bulk trip loas for 9 May 19986. Two are for deliveries of 26.300 litres of distillate to the State Rail Authority at Enfield. The third is for the delivery of a oroduct known as process il to a company in Auburn. It is unnecessary 9 refer further te that bulk trio log. The driver of the vehicie making wD rR Tt Pr ir q oD 1D ty rm iD uw4 D s ib yg pty a D D T E D 1s shown as Mr. D. Bedworth. The d The first bulk trip log states that Mr. Eedworth lezr the Banksmeadow Terminal at 7.15 a.m. and rerurned at 9.45 a.m. The second shows that he left the Silverwater Terminal at 19.70 aln. the times of arrival and deoarture shown on the two bulk tris leas Tk 1s a computer printout produced by Mr. Lambrianew. It shows the loading and time of devarture deraris for Caltex tanker trucks leaving its Silverwi*er Termiral. The srintout shows that crime mover No. 3991 ard the trailer which was coupled to it Left the Silverwater Terminal at 9.39 a.m. It also shows chat that trio was the first trip for thakh vehice on 9 May 19596 fFeom the Me. A.J. Crardi is a Licensed private intuicy agent Shortl+7 after Gam on 9 Maw 1986 he commenced watching the service station at Bankstown. He said that at approximarely 19.17 a.m. 35. CN-4549. drive into the service station and park on the drivewav. He noticed that 'the cab number cf the prime mover was 3901. He saw the driver alight and connect a number of heses From the under portion of the tanker to what he "observed to be inlets on she tarmac of the driveway". Mr. Ciardi said that 15 acneared to sanhil 10.48 a.m. when they were disconnected. The tanker left i) pry "ny pu wy Pay ' a fas ct > Oo) wT fe n Pal i) ns FI a y u ct T 'x iD Ww io x m ct a gun iD Lay+ at oO D in tT fn iT He oO deliverirg fuel between 10 a.m. and it a.m. on 9 May i9R6, Accordingly Toinfer cvhat the bulk trio lors. which ware, as counsel fcr the Wehh= untereers established un hie eross-examiration of Mr. Lambrrianaw, filtad mut by Mel Badworth, fhe relevant deliverras to the State Parl Aurhevi-w me inference is thus oven thar Mr. Bedworth falsified ras yn loos ani that a consiagnmert of distillate far the Scate Parl Suihhority m jua Hy) oT3 a) vey = Hy) <j ry 'oO fee) n For this arcund to be available to Caltex in the apolication concerning the South Strathfield service station. 1t will need te li + min wT iy Is rer om D a that Mr. Wenbe was knowingly erqaded in ot ir D ce) e ipt of stolen distillate by M. & G. Wehbe Brothers Pty 1) Q 0) L ted. Mr. Ciardi did not observe Mr. Wehb2 at the Bankstown h- =] br service station at the time the Geliverv was being made. The avidence upon which Caltex relied to inplicate Mr. Wehbe in the Téwra gore three s2t4s in this area, Chullora. Bankstown ard South Strarnfisld". During the course of the conversation Mr. Wehhe shawed "rr, Man a busines¢ card. A copy cf the cara is oun avidance, The most srominent words on ut are W. Wehbe ODtv Limited Above. below and beside these vords are the names and addresses of ten service stations. some Caltex ard some BLP. Tre service stations uneclude Caltex Ch llora. Caltex South Strathtield and Caltex Rankstow., My, Man cafarred in derail tt nedqotiations which he Kad Aad with Mr. Wehbe oarincinsliz I~ the dealer buys it by the palette gad rather than in smaller quantities. Mr. Man said that Mr. Wehbe had. ona number of aecasions, negotiated such purchase with him in respect of the given by Mr. Man orally. pacticularly un his ctross-examinaticn. maich us to khe game effect, woulé enable an inference fs 08 delivered ta the Bankstown service station on 9 May 1996. that My. Wehbe vas implicated in its receint. has been established. But before Leaving the evidence concerninsy this groeure. I sheuld mention evidence aiven by Mr. Harrnett of ecbservations made by him at the Bankstown service staticn during the evening of 9 May 1986. Shortly after il p.m. he observed 3 Tanwer. nach a Caltex tarker, arrive at the sgeryite station. We saw the dyriver connect twa noses ra inlets an the tarnat of rhe sarvyzicea stanior The other erd af the hoses wat ccrrected to 2 oump gituatead behind tne tanker. The dywrer started tha moter and sat in the cabin until shertly after L2 ntinight on 19 Marv them on to the tanker The venicle was driven tr a noctherlyv direction along Canterbury Foac. Mr. Yartrart followed it az fac been oumpead out and was being redeliveread £9 somewhere on the South Coast. I feel unable to craw the inferance that the fuel which was pumped out was stolen fuel. I do not therefore vragard Mr. Hartnett's evidence of his observations du rs \4 a} Q aT o D wD ire} iD Me)3 Q oO 9 May 1986 as relevant to anv issue in the cas iD Tarminal at 6.29 a.m. and returned t3 tha Tertinal at 9.15 a.m. am 3 Ture 1986. His task was to deliver 25,2990 litres 97 distillates to the State Pail Authnority at Enfield Tre lod states that the Authority was invoiced for the dalivery ov an Detective Canstable T.L. Crowlev zs attached t2 one cf the u72cSs in the Major Crimes Squad of the Criminal Invesridatian Branch of the N.S.W. Police Force. He said that at abet 4,29 a.m, On 3 June 1986 he antered the ftrecourt of the Calrex service station at Chullora. He saw a <Taltex cetral tanlar parked and observed the driver '2 be unleading a hose fror the aS saying that the tanker bore che reaistration -umber CTM-4403,. Tam satisfied by the evidence of Detective Seanisr Conscable OT Teemanges sacn ta be referred to that either the cranecrint is incorrect orf that Derective Constable Crewlay watoin error in giving the number as CN-4459. Detective Censtable Isemoncder's evidence establishes the number to have been CN-4549. To the same effect is the evidence of Mr. Ciardi who also observed the Hn fanker at the Chullora service station on 3 Tune 198 fiardi's evidence. I should comolete the account of Derective Constable Crowley's awvidence. After observing the unleading of the hose from the undercarriage of the petrol tanker. he sarked 41s wehnicle and walked back to the tanker. He said that ths hose WAS connecred from aA compartment. compartment No. 4 on the tanker. to an underdround tank of the service station The stoncock walve on the tanker was in the on voesirion. Detective Foo of "he tanker and divoped each compartuenc. There were 1a Toanmartments;: he obtained varzous readings vhich he reccrded. He 40. Tt discharged from ctomoartment No. 4. He said that the driver of the rankec who had been arrested was Mr. Bedworth. The evidence given by Detective Constable Crowley of the amount cf fuel discharged has an importance when I come to consider one of the submissions made by counsel for the comoary and Mr. Wehbe. The submission is that, in relation to the ficst and secord crouncs, there was 10 avidence that 4.790 Litres or distillates was discharged on each occasion on 20 March 1926. Detective Canstable Isemonaer said that he parked his car rear the entrance to the Caltex Banksmeadow Tearninail an about 55 a.m. on 3 dune 1986. At 6.10 a.m. he saw a vetroleum tanker ard he faollewed 14 to the Caltex terminal where it arrived at 5 97 a.m. Ar approxinately 9.49 a.m. the tanker again left the Terminal. Detective Constable Tsemorger followed it west alona Facesnoce Poad and other roads to Greenacre. He saw the tanker =) oO ib vu ce x a stcP) +D s a v iS}o 'S im) ie) 1DoO iP) i] '3 iD Pe) a b yu hoy oO Wi wD m oy ny oO r= + iD ayx Afon ip oO a) +D it gus a ara ce) T x (D Ww ft) " dq0 iD Dt rt v | B)t wv s -j wTv BD m aaa a 41. what anpeared to him ta be the unloading of whatever was carried in the tanker. He saw ancther man cet on tes of the tanker and dip one of the tanker's compartments. A few moments later he saw ch) another oerson. Detective Censtable Crowley, move to the side of ast w v ry e tanker and turn a valve or 1ts underside. He saw the af Mr. Bedworth. service station early on 32 Jime 1986, Snorctizy bertare 9 alm. he saw Mr, Wehbe arrive at the premises. Fe staved cxly far tya minutes and then left. At 9.15 a.m. he saw the tarker reqistered established to he erroneous. T acceot thea avitzence af the twe polite officers and Mr. Crardi1 than che tanker was unloadine distillate at the Chullora service stration at the times to venison oreviousiy referred to, Tt was coupled to osorime mever No. NXP-Sa2. Ther? 18 again no record amonott rhose se0f either hw The evidence led in supoort of the fifth around is verry strong. Plainly the inference is oven that tha comeany iid caceiye sralen distillate at the Chullera servita siation cr? for the tenefic of urself ard other cersens. including Mr Welce My. Marrin and Me. Bedworth, a valuable thing. namely. suartit rilate the property of Caltex, concurred in the trascina cf 43. mentioned. the ninth around was not relied upon at the hearing. ra I should next refer more specifically ta he arounds in the notices served in respect of the service station at Seuth Strathfield. As mentioned. the first five oqrounds are. in eubstance, identical with the first five grounds ef the notice relied upon in the case of the Chullora service station. The only difference 1s that the notice served in relation to the South Strathfield seyvice station alleves that "Vr. Wehhe commitred the various acts of receiving stolen orcoerty rather khan the comeany. Grounds 6 ard 7 are bhasad on Mr. Wehbe heire matters relied uvon are in substance the game as those relied 'gen in the Chuliora notice. Tn ce@lation fo each of the vrourds b Lb ru a 16] iP) bay i i] aT r t Dis] or a a wb mn fit) 'SDp pa rH "3 s iD ma Wy iD ip) iv ) h it as D a is)uf show, by veason of the commission of the various offarces, ta he dishonest cr chherwise nor crf cocod character That 1s "ot an aesgential matter upon which Caltex needs £2 vealv 'f2r he establishment of 1hs case Tf the facts velred aumtn are estahizrched cara (cl will asoly because sub-nara (2° makes it aociirable if aifranchises vecforoms an act which cmeritutes an iy + fur) te q thOt) "S r ot] ial)u 'DiT 44. I can now come to the question whether I am satisfied that the grounds relied upon in each notice have been established. T approach that task by considering arounds 1t95 first of all. There are firstly some qaeneral matters to be mentioned. As oO ct earlier said. Mr. Wehbe. Mr. Martin and Mr. Bedworth were n called to give evidence. Evidence was led on behalf of Caltex of attempts made at various times to serve subpoenas upor Mr. Martin and Mr. Bedworth. For reasons which need not be mentioned. these attempts failed. But it should be said that Caltex did its utmost to have these witnesses available to be examined. tal Charges laid against Mr. Wehbe for receiving n oroperty am D had not been dealt with at the time the matter was heard. In the week before the hearing commenced consideraticn was qiven bv counsel for the company and Mr. Wehbe to seeking an adiournment pending the outcome of the criminal proaceedinas. After due consideration. counsel decided not te make anv such aoplication. Although there 15 no evidence of it. a reason why Mr. Wehbe wis ed as awitness may have been the outstanding criminal D m~a ct yy in mh uw Hr Har Lo 5s D O mh w hargqes against him. Tn ordinary circumstanc varty. without explanation. to ao into the witness box enables a court the more readily to accept the case which is brought against him. In 'S @ rticular it enables it the more readily tc draw inferences which are open on the face of the ather party's evidence: Jones v. Dunkel (1959) 101 C.L.R. 298. I see no reason why the ordinary rule should not apply in this case. Criminal oroceedinas or not, the evidence led in the Caltex case shows 45. that Mr. Wehbe was a person who was likely to have had knowledge of the circumstances in which the various deliveries of fuel or distillate were made. His failure to qive evidence does mean that inferences which are open on the face of the Caltex case mav the more readily be drawn. The next matter I mention is that in cases involving the alleged receipt of stolen property it is sometimes critical to consider any explanation which an accused person has offered for his pessession or, alternatively. to take into account the fact that he has given no explanation for it. That is a matter which T have put aside in the present case because there 15 no evidence that Mr. Wehbe was ever asked to explain how the distillate came into the comvanv's possession. A matter upon which some reliance was placed by counsel for Mr. Wehbe and the company was the absence of evidence of quantities of distillate said. in three of the arounds. to have been received. The quantities are stated in svecific terms in grounds 1, 2 and 5. In relation to the deliveries relied upon as constituting grounds 1 and 2, the quantity in each case is said to have been 6,700 litres. In relatior to the delivery or 3 June Q c w(tT re Tt < = un uw fu p a ct is) ap we < 1D toy o i)tHPad > I- [ae it al D u ) 1D oy] Cc iv] a tr fae tt fw 1D a mM w ts ju .t quantities were svecified because i was anticipated that 46. evidence would be given by Mr. Martin and Mr. Bedworth. Be that as it may, the evidence of Constable Crowley does establish that the quantity delivered on 3 June 1986, before he stopped the discharge and caused Mr. Bedworth to be arrested, was 1.000 litres. There is no evidence, at 1 p st directly. of the quantities 9 6.700 litres said to have been received on each of the two . occasions on 20 March. However, Detective Constable Crowley's evidence of the amount of distillate delivered in the period during which the tanker was discharging on 3 June enables an inference to be drawn as to the amount delivered an each of the eccasions on 20 March. One cannot be precise about 21+ and one could not draw an inference that exactly 6.700 Litres was delivered on each occasion. Nevertheless, I am prevared to irfer that the quantity delivered on each occasion was of the order of D PD) > ° o Ke ts iT rs i) uv HI A Lt aw the inference from a calculation of the discharge rate which must have obtained in the case of the delivery on 3 June. Had TIT not been able to drav that inference, T would not have regarded the absence of evidence about this sly ec i.) i.) yn ul 1DTt bo w te ww ra re 'D Q w tt i] fe)a ai f) Ty i) %s 1Di)ie} iT ie] ih matter as critic a quantity of stolen distillate ard that this constituted an offence of the kird specified in para. 16/2)(c\ of the Act. Tt remains to mention that during the arqument there was some discussion of the question whether Caltex was able to rely on the principles relatina to the admissibility of evidence of similar 47, facts in support of its case. In the view that I take of the matter, I do not need to reach a conclusion on that question. Tt is sufficient to say that I have not relied on the evidence led in support of any ground as tending to establish the facts relied ! upon in support of any other. Three principal matters were relied upon by counsel for the company ard Mr. Wehbe in order to dissuade me from finding the Caltex case established. These were:- (al Ex ad re] i) pt in relation to the delivery made on 3 June 1986, when Mr. Bedworth was arrested. the evidence that fel actually flowed from the tankers into the tarks of the Thullora or Bankstown service stations was unsatisfacttorv. dH enuld not be satisfied that 1f did th) The oroof that consianments of distillate destined for the on tat i) Rail Authority were diverted to one or other of the ps) service stations was unsatisfactory. The proof devnended on Caltex' internal record keeping. particularily the bulk frio logs which were not in evidence in the case of the two deliveries made oan 20 March 19864, Furthermore. in wt hree cases, namely. the two deliveries on 29 March and iT he delivery on 21 March 1986. the invoice had been sianed by someone purporting ta act on behalf of the State Rail Authority. The receint was for the whole quantity, 27,909 litres in the first two cases. and 26,399 litres in the third. No evidence was called to establish that these oOmn Q3 1)cw? ad g 1D 's Bre) tT Q. A) fay pe <4 1D 1s D rary Pa ie) tt oe D > > wy o S a. a4 ) i) i a BD "Ss D (c) (a) 48. delivered short. There was insufficient evidence to implicate Mr. Wehbe or the company in knowingly receivina stolen distillate. I deal with these submissions as follows:- T reject this submission. It was based princivallyv on the ct fa) Ss D various private investigators being unable actually a ion a 1D it sta 2] m a < fuel flowing into the tanks of the ser Reliance was also placed on difficulties the investigators would have had in observing whether inlets to the service stations' tanks were open. It was suaqested that the fankers may have heen present because the drivers were on Private errands of their own and that these were unconnected with the delivery of fuel at all. Some support for these suaqestions was attempted to be obtained from answers to questions asked some of the Caltex swLtnesses in crass-examination about the habits and orivate pursuits of some of the drivers In my opinion the submission is quite wnrealistic. In each case 4 aporeciable voeriod of time. Hoses were seen ta have heen oulled from their housing on the tankers On seme occasions people were observed dicving either the tanks of yn D I Pe) D its) eH| <d the service station or the tankers them opinion there is an overwhelmird balance of vrobabilities in favour of the view that the tankers were. on each occasion. delivering fuel. A further point of criticism 49. of the Caltex case was the evidence given by 411 who observed these apparent deliveries of there being more fhan one hose in use. Detective Constable Crowley was the only witness who said that he saw only one hase. Even Detective Constable Isemonaer. who observed the undoubted deliverv which occurred on 3 June 1986, referred to there being more than one hose. T have referred to this matter earlier. It may be that the observations of the private investigators and Detective Constable Isemonaer were at fault. If thev were. it seems strange that so manv independent people made similar observations on the sevarate occasions which are involved. Be that as it mav. ut what matter mM is the general impression which each witnes had of what was occurring. Each saw at least Ine hose from the tanker on the around. In the ahsence of other evidence, that is plainly an indicatror to an observer that delivery of fuel was being effected on each accasion. The absence of the bulk trio loas for the delist D s H D wv =} By ion oh) on 20 March 1986 does create problems for Caltex. Similar problems do not exist in relation to the other deliveries because the bulk trip logs are in evidence. Put, ir relation to the deliveries which occurred on 9 Mav 1986 and 3 June 1986. oroblems of a different kind are created by the falsification of the bulk tric logs for those deliveries.: ' A further problem for Caltex is created bv i \ the sianatures on the invoices for three of the deliveries 50. which are relied upon. On the face of the invoices. these sianatures acknowledge receipt by the State Rail Authoritv of the deliveries of distillate made on 20 March and 21 March 1986. What the sianificance of these problems is in relation to the establishment of the various grounds is a matter T leave for consideration until I come to deal with each ground individually. that when Mr. Man took over as sales renoresentative far and told him of his new responsibilities. Mr. Wehbe said that he had three sites in the area. Chullora. Bankstown and South Strathfield. This was confirmed by the business ecard which Mr. Wehbe produced at the time of the canversation. Earlier Mr. Man had said that during the it was usuallv Mr. Wehbe with whom he spoke or neastiated. ia] vVidence to which reference has already been made shows that on anumber of occasions Mr. Wehbe was seen by investiaators on the Chullora. site. There are® other 51. indications in the evidence of Mr. Wehbe's direct participation in the management of the service stations, particularly the Chullora service station. The totality ef the evidence establishes that Mr. Wehbe was the principal executive in "the Wehbe Group" and certainly the princivoal executive of the company. With the exception of the delivery to Bankstown on 2 May 1986, the distillates in auestion went into the tanks of the Chullora service station. I have said in relation to each of these deliveries that the inference is open that Mr. Wehbe knew Fhat this was soa. TI amclearly of opinion that that inference should be drawn. T can now come directiy to the question whether each ground is established. My conclusions are as follows:- Grourd 1 6& the comnarv ard Mr, mm cr Oo me 'D ie] t z Bu ra tt o yo) wo cr ia"3 wT ee a) ct [ne it g1é7) ve] rn) "§ crFh w n ip)a :1D =) wt 2) rh was not made in the around itself nor in the voarticulars thereof. 52. atstillate knowing it to have been tolen. There ts evidence that an identified Caltex tanker made a deliverv of fuel of some kind or 20 March 1986. There is no record of any delivery of distillate to the service station on that day nor anv record of the identified tanker being required to ao to the Chullora gervyice station for any purpese at all. Tn mv opinion the "ference ig ooen Fhat the company received into its tanks a TF this is an essential alleqation, the ground has nat been astablished In my opinion it is net an assertial allegation any more than is the quantity of 6.700 Litees whith is svecified. th Ps }2 re) ) t a re p t Ps2 c nD ur it fe fa) J t4 w+_DoD th i?) 'S v > Ye i oy + a D mh isa + a Isrom a +a Fhe second around are around Again I find it established. Ground 3 This aground is ovolainly established. In reaching that emnelusion I have taken into account the siaqnature on the invoice which relates to the stiubiect delivery. IT conelude that the strength of the other evidence about this deliv 0D ny <q Q pa ar a D bh Q Tr un w< 53. stanificance which the sianature should have. There are a number of possibilities. The signature may not be a genuine one: or the consianment may have been short delivered without the knowledqe of the person who signed the invoice. These hypotheses are consistent with innocence on the part of all relevant emplovees at the State Rail Authority. Other hyvotheses which mav have applied would involve the participation of one or more emplovees of the State Rail Authority in what occurred. Ground 4 As in the case of the first two grounds. there is a aiestion whether the delivery ta the Bankstown service station on 9 Mav wo fee) ay a At in UY ju t's + Q mh woOn Loos Q ai) a ct yu D m cr aD a mh iP) rS ra a D wm cr o ut oO fy ee fon Ground 5 This ground, like the third. 18s plainly established, The foreqoing analysis leads to the conclusion that the facts relied upon in support of the first five aqrounds of each of the notices have been established. Because Mr. Wehbe has heen shown, 54. in effect. to be the alter sao of the company it is established that the company knowingly received the stolen distillate on each of the four occasions on which it was delivered to the Chullora service station. To put it another way. it was the company which received the distillate into its tanks. The company knew that the distillate was stolen because Mr. Wehbe's knowledae was the company's knowledde. Accordingly. grounds 1. 2, 3 and § are established in the case of the Chullora service station. Since Mr. Wehbe himself did not receive the stolen distillate. he himself has not been shown £9 have been auilty of receiving stolen aqoods. But the evidence olainlv establishes that he was an accessory before the fact in each case Pursuant s fan a iBs 7D rh Ww rs te) a ot fe) Hoa D pale 2) wr w 1D Ny 1D ih oO s 'D toa s. 3446 of the Crimes Act e8 liable ta be indicted. convicted and sentenced as a principal in ct a fa rh 1D re 0) a '<q5 pu oy te % yo r e ta the same sunishment as the nrincipal relation to the deliveries of distillate made to the Chullora service station, but also in relation to the delivery made to the Rankstown service station on 9 Mav 1986. It follows that crounds l to 5 inclusive of the notice served in relation ta the South Strathfield service station have been also made out. "be were established, Furthermore, ne detailed submissions were addressed in support of these grounds. Tt would seem to me thal there may have been evidentiary difficulties in relation to them. Particularly 21s that so in the case of the sixth ground whack alleges a conspiracy anvolving Mr. Wehbe, the company, Mi. Martian and Mr. Kedworth. One problem concerns the allegation that twn of the conspirators were Mr. Wehte and the company. There is a problem because of my conclusion that Mr. Webbe was the alter ean of the company. A director of a conpanye who 16 solely responsible for the conduct af the company's business, cannot he eonvicted of conspiring with the company, siamce omly one mind as invelved despite tne fact that tne company mas a separate legs} personality; Fe3. Vv. Meonnmed] C1966] 1 ALB. 2335 Halsburv, 4th Ed., Vol. 11, para. 59, p. 45. In summary then, FI find grounds 1, 2. 3 and 5 of the motice served in relation to the Chullora service station and grounds 1 to S amelusive of the motice served ins relatzon to the South Strathfield service station estsblisned, In relatian to the grounds relied upon ain relation £9 the South Strathfield service station I fand tiat bkoth sub-psaras. (1) and (11) of para. 16(2){(c) of the Act are applicable. The offences which I have found proved are each punishable by aumprisonment. Furthermore, the fact that they have been committed tends to show that Mr. Wehte 16 dishonest or otherwise moat of goed character. Subiect to the special] position of Mr. Hattr, the remaining question 25 whether, pursuant to pars. 16(6)(b), T am satisfied that the 5h. : termination of the agreement, that is the lease, is just and equitable having regard to all the circumstances. In the case of the Chullora service station I am satisfied that it as just and equitable that the lease te determined. The fandaings I have made show that on four occations the franchisee, that 15 the company, received stolen fuel anto ats tanbs. No explanstion for thie erpiminsl conduct has been offered the Court. No assurance has been given at that tins conduct will mot be repested. Even if such assurances had been given. 21¢ would be wrona, im my opinion, to compel a franchisor to retain in control ef 3 service statinqn of which it ais the lessor, a lessee which engaged in such conduct. There are two further things to be e314 about Chullora. Firstly, 1f. contrary to my fandings, I had moat found grounds 1] and 2 established because the evidence did mot prove receipt of stolen dastillate as opposed to stalen motor fuel of an unspecified kand, the evidence led in support of grounds 1 and 2 would, nevertheless, have been relevant to tne question whether at was yust and equatable that the lease c¢hould be terminated, Secondly. evidence was led ain the company's case from a Mr. Hiotejlis who ssid that he tad expressed an anterest am burcharing tne Chullors service station from tne company. There was no evidence from Mr. Wehbe that the company was prepared to s@ll the service station business. That as sufficient to dispase of any weight which Mr. Hiotellis' evidence might have had, Apart from that consideration, I should say that Wr. Hiotellis 57, did mot impress me as 2 witness. I have » substantial reservation whether he was telling the truth. In relation to the Suuth Strathfreld service station T propose to come to conclusions about the amplicatione of sub-para. 16(6)(b) of the Act for that case when J have considered the case brought by Mr. Hatta. JI turn to that matter. Mr. Hatti1 was mot shown to have been a party to the lease or supply agreement entered into im respect of the South Strathfield service station. Rut he claims to have an interest im the business which 16 there carried om, and also an interest in the lease, which he claims to have acquired from a Mr. and Hrs. Ghalet who were said te have been former Joint owners of the service station with Mr. Wehbe. In order that M1. Hatti's case may be properly understood at 1s mecessary to refer to the earjier stated definitions of "franchise aqreement* ated "sgreement® in S. 2 of the Act. In the submassian of counsel for Mr. Hatti it 36s enough for ham to establish that Mr. Hatti has the interest which he claims and that he communicated netice of his interest to Caltex. This 15 what he says happened. In my opinion the submission 16 correct. Tf the evidence denonstrates that Mr. Hatt1 ain fact has the interest in the business and the lease which he claims and that Caltex had notice of it, he 15 3 franchisee within the meaning of the Act because he 15 a party to a franchise agreement within the meaning thereof. 58. Mr. Hatti said that he had purchased a share in the business of the service station at South Strathfield in November 1985 from Mr. and Mrs. Ghalet. He ssid that since the date he acquired the interest, he had had the day to day conduct and control of the busimess. He said the keys to the premises were in his possession and that no beys were held by Mr. Wehbe. He said that since he had been at the premises he had heen responsible for the conduct of the business and had attended to all anquiries at the premises including dealings with Caltex. Mr. Hatta said that there was a stocktabe aon the day that he was tao take over the Ghalebs' anterest im the business. He said that Mr. Man arrived mid te late wornang on that day. Mr. Hatti said thst he said to Mr. Man, "... to save us any complication jlater on, could you please finalize whatever has to be drawn un between Sam and Susie (the Ghalebs) and Caltex so that when I do start and officially take over the business there will be 3 clean sheet hetween Caltex and me*. Mr. Man replied that that was something that Mrs. Ghaleb and be had been working on. Mr. Man said that he would look forward to doing business wath Mr. Hatti. They shook hands and Mr. Man left the premises. Mr. Hatt? gave evidence of 3 further conversation he had with hr. Man about a week afterwards. His evidence was as follows:- "(George Man): 'George you'll shortly be receiving an official Caltex statement which comes out at the end of each month, showing a balance of credits or debits. On that statement it will 59. show you the trading position, and there will be accredit for (1) think he seid October). This as a figure that will be owing to Sam and Susie, and Wally, and you'll have to pay Sam and Susie for half the amount which they're entitled to, and that fagure wall continue on then for your normal trading terms." (myself): 'George, also J underctand there's a cheque coming through for a claim that was made by Sam and Susie against Calter, for water in the tanks ~- what's going tm happen te that?' (George Mand: 'That will be coming through in the near future, at will be mailed to the South Strathfield address instead of going through to Sam and Susie'. Mrs. Ghaleb said that 1m or about September 1984 she and her husthand had taken over the running and management of the service station 3st South Strathfield. They had purchased part of the business. being a share held by 3 Mr. Eljed. Mrs. Ghaleb deposed to conversations she had had in the presence of Mr. Wehbe, Mr. Man and a Mr. Nelson, woo was Mr. Man's predecessor. During one of these cunversations Mrs. Gnaleb said that she was introduced by Mr. Wehbe to Mr. Man and Mr. Nelson as fis partner an the busimess. Mrs. Ghaleb ssid that prior to selling the share in the busaness to Mr. Hatt1 towards tne end of 1985 she had 3 conversation with Mr. Mam. She said, "George, we've decided to sell our share in the service station. We've had some dealings with some other people who were interested ain buying all the tusiness, Wally's share and ours as well but that's fallen through. We're interested to move on to something we think might be a bit better, so mow we're going to try to sell just our share 60. of the business'. Mrs. Ghaleb referred to the stochtabe which she 6a1d occurred on 31 October 1985. She referred to the arrival of Mr. Man. Mr. Hatti was present but the stocktske was mot done an his presence. After T had reserved my decision, an application was made hv counel for Mr. Hatt: to re-open his case. The purpose of the application was to tender a letter dated 1 November 1985 which Mr. Man had signed on Caltex letterhead. I ajlowed the case to te re-opened and the letter was tendered. It as in the form of a reference and 15 signed by Mr. Man as Area Manager of Caltex. The substance of the letter 15 35s fullows:- "Mrs. Susan Ghaleb was a partner lessee of the Caltex Service Station, Hume Highway, South Strathfield, when I took aver the area im January 1985 and contanued to do so until the partnership was disbanded October 30, 1985. Turing this period she managed the service station showing dedicatiom and tusiness sense. She displayed a pleasant character under sometimes difficult conditions'. Roth Mr. Hatti and Mrs. Ghalet were cross-examined evtensively about their evidence, but maintained that Mr. Man knew hoth of the Ghalebs' interest in the business and of the acquisition of that amterest by Mr. Hatti. A further matter relied upon by counsel for Mr. Hatta was 61. that, although Caltex's invoices for sales of motor fuel to the South Strathfield service station were always addressed to Mr. Wehbe, they were paid by cheques drawn upom the account of a company, Wehbe and Hatta Petroleum Pty Limated. The invoices were all signed by Mr. Man who acknowledged payment of them on Caltex's behalf. It was submatted that the anference should te drawn that am this way Mr. Man must have known of Mr. Hatti's 2nvolvement an the business. Mr. Man denied that he bnew that Mr. Hatt: had acquired an interest an the business. He denied noticing the name, Wehbe and Hatti Petroleum Pty Lamited, om the cheques which were paid for fuel delivered to the service station. His evidence was that he understood that Mr. Wehbe had acquired that interest so that he had become the owner of the entirety of the business and of the lease. Has understanding, so he ssid, was that Mr. Hatti was Mr. Wehbe's manager. Support for Mr. Man's evidence ain thas respect 15 to be found in an affidavit sworn by Mr. Hatti on 11 September 1986. He there deecrabed himself as the manager af tne South Strathfield service station. He also ¢31d that he had the day to day control and conduct of the business at the premises. A fair reading of what he said would suggest that he had that control in his capacity as manager rather than as the owner of an interest an the business. Although Mr. Man conceded that he knew that the Ghalebs had an interest an the business, he said that he had not known this until shortly before they sold. His evidence was that just prior to 31 October 1985 Mrs Ghaleb told him that they were G2. selling the tusiness back to Mr. Wehbe. He said that this came as a surprise to him because he had thought of them as managers eanly untal thst tame. T do mot thank that Mr. Mamn's evidence that he knew of the Ghalebs' anterest in the business only shortly before they sold sits very well with the terms of the reference which he wrote on 1 November 1985. In that reference he said that Mrs. Ghaleb was a partner-lessee of the service station when he took over the ares an danuary 1985. It as true that the reference cannot he regarded as being im direct conflict with Mr. Man's evidence, but the relevant part of at would leave the reader with the impression that bhoth Caltex and Mr. Man were well aware af the Ghalekbs' anterest 411 slong. Mr. Man was recalled to give further oral evidence after the letter had been tendered. He maintained that he had not known of the Ghalebs' departure from the premises unmt11 a weer or ten days prior to 3] October 1985 and, further, that he did mot know. until that time, that they had some interest in the business. He was asked questions about the detail of the reference he had given Mrs. Ghslek and agreed that another person reading the letter would take from it that he was at sl] tames aware that. in the period from 1 Jaruary 1985, Mrs. Ghalet was a partner~lessee in tne service station. He was asked questions how he came to say that Mrs. Ghaleb was a partner-lessee. He said that he understood what a lessee was. Has ultimate answer to | these 63, questions was that all he could say was that 'it was a very bad choice of words'. Mr. Man swore a further affidavit which was tread at the resumed hearing. He said that at about 1.15 p.m. on 30 October 1986 he attended the South Strathfield service station and had a discussiom with Mr. Hatta. He referred te a circular letter to customers, a copy of which he had picked up the previous day. He asked for a further copy. The copy 18 headed "Wehbe Petroleum'. Underneath 1s a reference to a post office box number at Bankstown and ta the address of the South Strathfield servira station. The circular 1s addressed to customers and ais said to concern 3 new improved account facility. There 1s reference in 1t to offering a 30 day account at the service station. The system is described and 1t 15s said that it will be available from lt November. The letter 158 signed above the printed name, 'Wally Wehbe'. The signature as not distinct, but at should be saad that at does mot appear to be similar to the signature which appears on the lease documents as the signature of Mr. Wehbe. In my opinion mothing turns on this. The important fact is that the circular was avallable at the South Strathfield service station. Ti was handed to Mr. Man by Mr. Hatti whose name appears nowhere or it. Before Mr. Hatti's case was re-opened, counsel for Caltex tendered a letter from Mr. Wehbe's solicitors to Caltex. The letter said that the solicitors had heen instructed by their 4. rlient to advise Caltex that he wished to assign his interest under the current franchise agreement to Mr. Hatti "who is, a6 you are aware, fully engaged in the business at the subject service station'. Caltex refused to agree to the proposal. There is also evidence from a Mr. Haracat that he was negotiating on behalf of 3 company an whach he and his trother were said to be shareholders for the purchase of the service station. Counsel for Caltex relied on the circular letter, the letter from the solicitors and Mr. Baracat's evidence as clear indications that tir. Hatta had no interest in the business or the lease. The fact that the Ghalebs may have had such an anterest was mot to the point. This evidence did not establish any anterest an the business on the part of Mr. Hatti. Mr. WMan's reference did not establish that matter either. All else was consistent wath Mr. Hatti's own Statement im his affidavit of 11 September 1986 in which he described himself as the manager of the South Strathfield service station. The question which has to be decided 1¢ whether anything was s3id to Mr. Man by Mr. Hatti or the Ghalebs, particularly Mrs. Ghaleb, about Mr. Hatti taking over. An analysis of some of the earlier conversations which are relied upan by Mr. Hatti showe that, even if they are accepted at their face value, they sre consistent wath Mr. Hatti taking over on behalf of Wr. Wehbe rather than om behalf of himself. This 15s what Mr. Man said he was told Eby the Ghalebs and Nr. Hatti. That also as consistent with the letter written by Mr. Wehbe's solicitors, the carcular 65. letter to customers and Mr. Baracat''s evidence. I do mot think that the payment of the invoices by Wehbe and Hatti Petroleum Pty Limited affects this conclusion, The invoices were addressed only to Mr. Wehbe. I accept Mr. Man's evadence that he did not motice the mame of that company on the cheques. Having given the matter due consideration, I have reached the conclusion that IT ought mot accept Mr. Hatti's evidence amd Mrs. Ghaleb's evidence insofar as their evidence suggests that Mr. Man was told that Mr. Hatt: was sequiraing the Ghalebs' interest in the business. J prefer Mr. Man's evidence on this matter because 1t 26 more im accordance with the probabilities. JI confess that I have not reached that conclusion easily. I am unimpressed with Mr. Man's evidence concerning his knowledge of the Ghalebs' interest in the business. His letter 15 consastent wath knowledge all slong. Nevertheless, I do not think that I should allow that consideration to deflect me from making the famding that Mr. Man did mot know that Mr. Hatt1 had some interest in the business. Lounse] for Mr. Hatti relied om aspects of the doctrine of estoppel im support of his case. However, I am satisfied that his submissions in thst regard must fail unless 1t be found that Caltex, through Mr. Man, had knowled3e of Mr. Hatti's anterest. For that reason I reject the submissions based on estoppel. It may be, a5 counsel for Caltex submitted, that the submissions should be rejected for other reasons as well} and that this would 40, be sa even if it were established that Caltex had had browledge of an anterest of Mr. Hatti an the business. In the eircumstances, at 16 unnecessary to consider those submissions and J express no view upon them. Tt follows from what I have said that Mr. Hatta's application must be rejected because he 1s not a franchisee of the South Strathfield service station. He had no standing ta bring his application No. G422 of 1986. There remains the question of whether it 15, withan the meaning of para. 16(6)(b) of the Act, qust and equitable that the franchise agreements (the lease and the supply contract) be terminated. In reaching 3 conclusion on that Matter TI need te take into sceount all relevant circumstances. The franchisee 15 Mr. Wehbe. The considerations which apply an his case are the same as applied in the case of the Chullora service station. I am clearly of the opinion that zt ois gust and equitable that the franchise agreements he terminsted. My conclusion in that regard makes it umnecessary to consider a substantial body of evidence which was led in relation to an slleged abuse by Mr. Wehbe and others of a pricing assistance scheme whach Caltex made available to its franchisees in times of severe price cutting by other service stations im the area. This evidence was relied upon by Caltex to support rts case that it was just and equitable that the franchise agreements relating ta both service stations should be terminated. In the view that T 67. take of the matter, -1% 16 unnecessary to reach conclusions on that matter and I do not. Finally, I should say that, an the light of the findings J have made concerning Mr. Hatti, 21% would seem to me that there 16 mo consideration tased om his position which could militate sgaimnst the conclusion being reached that the franchise agreement should be terminated. My conclusions therefore are as follows:- 1. Grounde 1. 2, 3 and 5S of the notice served im relation tn the Chullora service station have been made out. ae Grounds 1 to 5 anclusive of the notice served an relation to the South Strathfield service station have been made out. 2. It as gjyust and equitable, having regard to all the circumstances, that the relevant franchise agreements be terminated. 4. Mr. Hatti is mot a franchisee of the South Strathfield service station. 5. Each application should be dismissed. 6. Nr. Hatti's cross-clsim brougnt in application No. G358 of 1986 should be dismissed. vn Orders should te made to give effect to the cross-claims brought by Caltex ain applications No. G357 and G358 of 1986. 8. The applacamts should pay the entirety of Caltex's costs 68. of each application and cross-clain. I do not propose today to make formal orders. I shall stand the matters over to enable the parties and their legal representatives to consider what I have said. When it is aqain in the list counsel for Caltex are to bring in short minutes of order to aive effect to my decision. | certify that this and the 67 preceding pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Sheppard. / Bethe Associate Dated 24 DECEW4ER /PPL Counsel for the Applicants, W.A. Wehbe Pty Limited and Mr. W.A. Wehbe: Mr. R.G. Craigie and Mr. D.L. Warren Solicitors for those Applicants: Messrs. Karavias, Katralis and Co. Counsel for the Applicant, Mr. G. Hatti: Mr. R.K. Eassie Solicitors for Mr. G. Hatti: Messrs. Treanor & Bartels, West Ryde Counsel for the Respondent, Caltex Oil (Australia) Pty Limited: Mr. D.E. Horton, Q.C. with Mr. C.A. Sweeney and Mr. P. Neil 49. Solicitors for Caltex O11 (Australia) Pty Limated: Messrs. Moore & Revins Ttetes of hearing: 7, By, 9, 10, 16, 17 and 3) Netober 1986