Chenoa Pty Ltd v Shell Company of Australia Limited, The [1988] FCA 168

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JUDGMENT No. JG@ 7 gg

CATCHWORDS

Franchise agreement for distribution of petroleum products - Petroleum Retail Marketing Franchise Act (1980) previously held to be excluded from application to subject premises by operation of 1984 amendment - period during which Act inapplicable to premises held to commence on coming into operation of amending Act - claim for possession of premises - nature of distributor's right to occupy premises ~ how determinable - whether Court has discretion to decline to make an order for possession or postpone its operation -

discretion to grant declaratory relief.

Petroleum Retail Marketing Franchise Act 1980 (Cth) ss. 3, 6(1D)

Petroleum Retail Marketing Sites Act 1980 (Cth) ss. 3, 7, 11

No. VG 273 of 1985

CHENOA PTY. LTD. v THE SHELL COMPANY OF AUSTRALIA LIMITED

Ryan J. 13 April 1988

Melbourne

FOR LIMITED DISTRIBUTION

N ERAL COURT OF AUSTRALIA VICTORIAN DISTRICT ISTRY GENERAL DIVISION

No. VG 273 OF 1985

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BETWEEN : CHENOA PTY. LTD (Applicant)

AND: THE SHELL COMPANY OF AUSTRALIA LIMITED

(Respondent )

Coram: Ryan J.

Date: 13 April 1988 Place: Melbourne

In a judgment delivered on 10 March 1988 I indicated my reasons for concluding that the applicant is not entitled, in respect of its tenure of premises comprising a transport refuelling terminal at 542 Footscray Road, West Melbourne, to the protection afforded by the Petroleum Retail Marketing Franchise Act 1980 as amended, ("the Franchise Act"). However, there remain for consideration the form of order which should be made disposing of the application and the

respondent's cross-claim for possession of the premises.

The amended cross-claim of the respondent ("Shell"), as further amended pursuant to leave granted by me on 25 March

1988, referred to and repeated relevant paragraphs of its

amended defence and concluded with the following paragraphs:-