FOR LIMITED DISTRIBUTION 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 www ww 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:- "28. Insofar as the cross-claimant was required to serve a notice on the cross-respondent to quit or deliver up possession of the premises, it did s0 by letter dated 11 December 1985 from its solicitors to R.J. Clemente, the then solicitor for the cross-respondent. AND THE CROSS-CLAIMANT CLAIMS: 1. Possession of the premises. 2. Such other and further relief as the Court sees fit. 3. Costs." The defence to cross-claim filed on behalf of the applicant ("Chenoa") comprised the following contentions:- 1. The Cross-Respondent is in possession and relies upon its possession. 2. Upon the true construction of 8.6(1D) and in the events which have happened, the Cross-Respondent retains protection of the provisions of the Franchise Act on and after the lst January, 1985, and the Cross-Claimant is prevented from enforcing any rights given in the Judgement of the 10th March, 1988 until the Cross-Respondent has been afforded proper notice of hearing to permit it to answer the claim for possession or to permit it to mitigate or modify the terms of an Order for Possession that might be made. 3. The Cross-Claimant has not served upon the Cross-Respondent a notice requesting the Cross-Respondent or other person for the time being entitled to possession to quit and deliver up possession of the premises." To paragraph 3 of that pleading, Shell, by paragraph 3 of its reply to defence to cross-claim amended pursuant to leave granted by me on 25 March 1988, responded as follows:- "3. In respect of paragraph 3 thereof it says as follows: (a) it says the Cross-Claimant is not required to serve a notice upon the Cross-Respondent to quit or deliver up possession of the premises (b) in any event, the Cross-Claimant has served upon the Cross-Respondent a notice demanding possession of the premises namely - (1) by the said letter dated 11th December 1985 from the solicitors for the Cross-Claimant to R.J. Clemente, solicitors for the Cross-Respondent; (1i) by the issuing and service of a Writ issued on the 16th day of December 1985 in the Supreme Court of Victoria action No. 5062 of 1985 between the Cross-Claimant as Plaintiff and the Cross-Respondent as Defendant." The consignment distributor agreement between Shell and Chenoa dated 11 September 1981 has been described in some detail in my reasons for judgment of 10 March 1988. In addition to the clauses there set out, it contained, amongst others, the following provisions:- "3. (a) The Distributor shall use the Distributor Depot for the purpose of the Distributor Business and ostensibly maintain manage and hold out the same asa Distributor Depot of Shell by the prominent display thereon of Shell's Identifications. (b) Where the Distributor Depot is owned or leased by Shell the Distributor and Shell shall each observe and comply with their respective agreements in relation to the Distributor Depot as set out in the Schedule. 4. Where applicable, a licence fee shall be payable by the Distributor to Shell in respect of the occupancy of the Distributor Depot and the use of the Equipment and such fee shall be as shown in the Schedule under the heading 'Licence Fee'. The Distributor and Shell shall each comply with their ll. 19. 21. 24. respective obligations as set out under the heading 'Manner of Payment of Licence Fee' in the said schedule... The Distributor shall permit any authorised representative of Shell at any time to have access to and examine and measure and count stocks and inspect all property, records, accounts, books, papers, letters and documents relating to the Distributor Business and will afford the representative every facility for so doing... Where the Distributor Depot is owned or leased by Shell the Distributor shall not store in the Distributor Depot any fuels other than Shell fuels... The Distributor shall not at any time hereafter without the consent in writing of Shell assign transfer or in any manner make over the present Agreement to any person or persons whomsoever... The Distributor acknowledges that all plant and equipment and advertisements and advertising materials (hereinbefore defined as 'Equipment') supplied and which may be supplied by Shell whether at the commencement of this Agreement or during the currency hereof (including the items listed under the heading 'Specified Equipment ' in the Schedule) are and will remain the property of Shell, unless written notice to the contrary is given by Shell, and the Distributor agrees on demand by Shell to return the Equipment to Shell in good order and condition, ordinary depreciation and fair wear and tear excepted, and to pay for and compensate Shell for any loss and any damage thereto other than as expected. The Distributor shall promptly notify Shell of any defect in the Equipment or the working thereof. The Distributor agrees not to move the Equipment from the position in which it is installed at the Distributor Depot without the consent in writing of Shell and also not to use the same for any purpose other than is necessary to carry out the Distributor Business, and further, should computer equipment (as listed in the Schedule and hereinafter referred to as 'the computer equipment'), be included within the Equipment then the Distributor agrees: that the computer equipment shall be operated only by him or his employees in accordance with procedures established by Shell and for purposes approved by Shell and that no additional computing equipment will 25. be acquired for use in conjunction with the computer equipment without Shell's prior agreement in writing. Where Shell does not own the computer equipment, but arranges for the installation at the distributor depot of computing equipment (identified on attached schedule) to assist the distributor in carrying out duties related to the distributor business, the distributor acknowledges that the equipment remains the property of IBM Australia Rentals Pty. Ltd. from whom it is rented by Shell and the same agreements between the distributor and Shell as are heretofore mentioned will apply. The Distributor shall not sell or otherwise dispose of or mortgage or pledge or otherwise encumber any of the Equipment. Where the Distributor owns or leases the Distributor Depot the Distributor shall expressly exclude the Equipment from any sale lease or other disposal of the Distributor Depot and shall return Equipment to Shell (unless Shell makes arrangements for the new owner or occupier to have possession before any change of possession or occupation of the Distributor Depot), and if the Distributor isa tenant only of the Distributor Depot, the Distributor shall return the Equipment to Shell before yielding up possession of the Distributor Depot to the Distributor's landlord. If the Distributor does not return the Equipment or any item thereof to Shell upon demand, Shell may remove such Equipment (including fixtures) from the Distributor Depot at the Distributor's expense and without any liability to make good any reasonable damage occasioned to the Distributor Depot in such removal. Without prejudice to any remedy Shell may have against the Distributor for breach or non performance of this Agreement Shell shall have the right to terminate this Agreement summarily on notice in writing to the distributor:- (a) if the licence fee hereby reserved or any part of it shall at any time be unpaid for fourteen days after becoming payable whether formally demanded or not... (d) if Shell being the owner or lessee of the Distributor Depot loses its right to possession thereof for any reason whatsoever;... 35. This Agreement cancels any existing Distributor Agreement between the parties hereto and shall continue for the Term." The premises were described in the Schedule to the consignment distributor agreement as "All those premises leased by the Distributor and situated at 542 Footscray Road, West Melbourne, 3011, and where the premises are owned or leased by Shell, including as well as the land, the buildings and other improvements thereon and all tanks pumps and other plant and equipment attached to the said premises." By cl.1 of the consignment distributor agreement, "the Term" was defined to mean "the period defined in the Schedule." The Schedule in turn contained this reference:- "TERM: A period commencing on the llth day of September 1981 and continuing for three years and thereafter until the expiration of not less than three months written notice of determination given by either party to the other." The Schedule aiso contained the following paragraphs under the heading:- "DISTRIBUTOR'S AGREEMENTS IN RELATION TO THE DISTRIBUTOR DEPOT: (For Shell owned or leased premises only - refer Clause 3(b) (a) The Distributor acknowledges that his permitted occupancy of the Distributor Depot for the purpose of this Agreement is as a licencee only from Shell and agrees that his licence to occupy the premises is personal to him or when the Distributor is a corporation or when two or more persons are herein described as the Distributor and one or more of those persons is a corporation, to such corporation organised with its or their presently existing shareholding and directorate. (b) The Distributor further acknowledges that the said licence shall not create in the Distributor's favour any tenancy or any rights in the nature of tenancy; in particular, without derogating from the generality of the foregoing the said licence shall not confer on the Distributor any right to exclude from the Distributor Depot Shell its servants or agents or any person authorised by Shell, nor shall the said licence be assignable by the Distributor. (c) The Distributor agrees that he is not making any payment for goodwill to Shell to occupy the Distributor Depot for the purpose of conducting thereon the Distributor Business and that upon termination of this Agreement and his thereupon vacating the Distributor Depot he acquires no right to any goodwill that may attach to the Distributor Business and/or the Distributor Depot, nor shall he be entitled to receive any payment therefor from Shell." The Schedule concluded with the following paragraphs:- "LICENCE FEE (Refer Clause 4) A licence fee of $ nil per month shall be payable by the Distributor to Shell in respect of: (1) use of the Equipment and Facilities; and (11) occupancy of the Distributor Depot (where applicable); provided that such fee may be varied from time to time throughout the Term by Shell if additions or substractions are made to or from the Equipment, Distributor Depot or Buildings thereon. OF _P. OF L CE FEE The first payment of Licence Fee shall be made on the Commencing Date and the second and succeeding payments shall be made on the first day of each successive calendar month or part thereof occurring during the term. Payment on the due date shall be by means of an automatic debit by Shell to the Distributor's bank cheque account, for which purpose the Distributor shall complete, sign, and hand to Shell a request to the distributor's bank in the form made available by Shell, PROVIDED HOWEVER that Shell shall he entitled to vary the terms of payment by giving one month's notice in writing to the Distributor. " Mr Parker Q.Cc., who again appeared with Mr Blackburn-Hart for Chenoa, took as his starting point the proposition that the consignment distributor agreement created the relationship of landlord and tenant between Shell and Chenoa. Particular reliance was placed on Radaich v Smith (1959) 101 C.L.R. 209 where by deed the respondents "as licensors" granted to the appellant "as licensee" for a term of five years "the sole and exclusive licence and privilege to supply refreshments to the public admitted to" a lock-up shop "and to carry on the business of a milk bar therein". In the deed the appellant covenanted, inter alia, upon the expiration or sooner determination of the licence immediately to "give up possession of the said building occupied by her for the purposes of the said business". It was held that in substance and effect the deed granted to the appellant a right to exclusive possession of the shop and it thereby created a leasehold interest in the appellant so bringing the shop within the jurisdiction of the New South Wales Fair Rents Board. McTiernan J., at 214, indicated that "the true test of a supposed lease is whether exclusive possession is conferred upon the putative lessee". Applying that test to the deed in question he was able to express himself "satisfied that what was granted by this deed was an interest in the premises, therein described, which amounts in truth and in substance to a& lease". To similar effect, Taylor J. observed, at 217:- "T have no doubt that the substance and effect of the instrument in question here was to grant to the appellant a right to the exclusive possession of the subject premises upon the specified conditions for the prescribed term. The deed obviously contemplated that the appellant should have the right to occupy the premises for the purposes of her business and the business was' to be carried on upon the premises at all times when they might lawfully be kept open. The character of the business was such that it could only be effectively carried on if the appellant had exclusive occupation and it seems clear that, even at times when they could not lawfully be kept open for the purposes of the business, the premises were to remain under her effective control. That being so it is inevitable that we should hold that the instrument created a leasehold interest and that at the material time the relationship of lessor and lessee existed between the parties." Windeyer J.'s formulation of the test is to be found in this passage, at 222:- "When (the parties) have put their transaction in writing this intention is to be ascertained by seeing what, in accordance with ordinary principles of interpretation, are the rights that the instrument creates. If those rights be the rights of a tenant, it does not avail either party to say that a tenancy was not intended. And conversely if a man be given only the rights of a licensee, it does not matter that he be called a tenant; he is a licensee. What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and use it for some stipulated purpose or purposes. And how is it to be ascertained whether such an interest in land has been given? By seeing whether the grantee was given a leqal right of exclusive possession of the land for a term or - 10 - from year to year or for a life or lives. If he was, he is a tenant. And he cannot be other than a tenant, because a legal right of exclusive possession is a tenancy and the creation of such a right is a demise. To say that a man who has, by agreement with a landlord, a right of exclusive possession of land for a term is not a tenant is simply to contradict the first proposition by the second. A right of exclusive possession is secured by the right of a lessee to maintain ejectment and, after his entry, trespass. A reservation to the landlord, either by contract or statute, of a limited right of entry, as for example to view or repair, is, of course, not inconsistent with &@ grant of exclusive possession. Subject to such reservations, a tenant for a term or from year to year or for a life or lives can exclude his landlord as well as strangers from the demised premises. All this is long-established law: see bole on Ejectment (1857) pp. 72, 73, 287, 458." However, in the present case, Chenoa had no right to exclude Shell from occupation of the premises. It expressly acknowledged in paragraph (b) of the "Distributors Agreements" in the Schedule to the consignment distributor agreement that "the said licence shall not confer on the Distributor any right to exclude from the Distributor Depot, Shell, its servants or agents or any person authorised by Shell." In addition, Chenoa was circumscribed in the way in which it could occupy the premises by the obligation to maintain a prominent display thereon of Shell's identifications. No fee or remuneration referable to Chenoa's occupation of the premises was payable by Chenoa to Shell. Moreover, Chenoa was constrained by cl.19 not to store on the premises any fuels other than Shell fuels. - ll - On the other hand, the premises were described in the schedule to the consignment distributor agreement as "all those premises leased by the Distributor (Chenoa) and situated at 542 Footscray Road, West Melbourne, 3011", (emphasis added). Attention was also drawn by counsel for Chenoa to cl. 21 of the consignment distributor agreement which provided that "the present Agreement" could be assigned with the consent in writing of Shell. In addition, it appears that Chenoa has from May 1987, with the acquiescence of Shell, permitted some third persons to occupy part of the site for the purpose of conducting the restaurant business which has been carried on since the premises were opened. However, a contractual licence may be assignable or not assignable according to the terms of the contract; (see e.g. Clapman v Edwards £19381 2 All E.R. 507). It was also pointed out by counsel for Chenoa that in its amended Defence in these proceedings Shell has pleaded that it is not required to renew or offer to renew, and is entitled to fail or refuse to renew or offer to renew "the Distributor Agreement and the Lease"; (emphasis added). However, if, as I consider it could not, Shell could bind itself by an admission on the legal question of the characterization of Chenoa's interest in the premises, I regard that pleading as a mere adoption for the purpose of joining issue, of the expression used in paragraph 12 of Chenoa's amended Statement of Clain. In my view, on balance, the consignment distributor - 12 - agreement created only a licence in Chenoa to occupy the premises for the specified term. I have been particularly influenced in coming to this view by the fact that it conferred no right on Chenoa generally to exclude from the premises Shell, its servants or agents, or any person authorized by Shell. Accordingly, Chenoa was not granted the exclusive possession which was regarded as decisive in Radaich v Smith (supra). Rather, it was granted a right to occupy the premises continuously throughout the term of the agreement for the purpose of selling Shell products. That right was indistinguishable, I consider, from what was characterized as a licence by the Court of Appeal in Shel]-Mex and BP Ltd. v Manchester Garages Ltd. £19711] 1 All E.R. 841. The need to resolve the question of lease or licence has usually arisen from the application of rent restriction statutes as in Radaich v Smith (supra) and Shell-Mex and _ BP Ltd v Manchester Garages Ltd. (supra). However, there may be cases, as Taylor J impliedly recognized in Radaich v Smith at 220, where there is not "a real contest between the issues of lease and licence". For reasons which I shall indicate this is one such case, making it unnecessary to come to a concluded view on the question of whether Chenoa occupied the depot site as a tenant or licensee of Shell. From the premise that Chenoa was a lessee, Mr Parker argued that there had been no effective notice to quit which, he argued, the common law made a pre-requisite to recovery of -13- possession. He referred, in support of his contention that a notice to quit, in order to be effective, must demand in terms that the tenant deliver up possession of the demised premises, to the following passage from Cole, The Law and Practice in Ejectment (1857) at p.46:- "Generally speaking notice to quit is given in writing. No particular form is necessary. Roscoe's Evidence 451 (7th ed.). But if given by or on behalf of the landlord, it must in substance and effect request the tenant, or other the person for the time being legally entitled to the term (not a mere under-tenant, ante, 45) to quit and deliver up possession of all the demised premises at the proper time. 2 Arch. N.P. 397; see the Form, Appendix, No. 1." In my view, neither that passage nor later authority supports the contention advanced on behalf of Chenoa. The general nature of a notice to quit is described by Cole, ibid. at p.30 in these terms:- "A notice to quit is a certain reasonable notice required by law, or by custom, or by special agreement, to enable either the landlord or tenant, or the assignees or representatives of either of them, without the consent of the other, to determine a tenancy from year to year, or from two years to two years, or for other like indefinite pertod." The requirement for a notice arising by special agreement is treated specifically at p.32 of the same work where the learned author observes:- "Where there is any express stipulation as to the notice to be given by either party to determine the tenancy, such notice, whether more or less than that usually required by law, must be given, and will be sufficient." - 14 - A statement similar in effect to the passages from Cole cited above can be found in P. Phipps & Co v Rogers £19257 1 K.B. 14 where Atkin L.J. pointed out at 27:- "A notice to quit may be the subject of express agreement; it may be required by law in the absence of agreement, as in the case of a weekly, monthly or yearly tenancy. However the necessity arises I think that the principle expressed by Lord Coleridge C.J. in Gardner v. Ingram (1889) 61 L.T. 729 at 730 is correct: 'Although no particular form need be followed, there must be plain unambiguous words claiming to determine the existing tenancy at a certain time.' Bowen J. in the same case uses language to the same effect. The date of determination must be the right date. It may however be given alternatively, and it is sufficient if one of the alternatives, without expressing the actual date, denotes it in terms which enable the person receiving it to make it certain." In WH. vis Spitalfields Ltd v Huntley and _ Others C1947] 1 All E.R. 246, Henn Collins J had to consider the sufficiency of a notice relied on as terminating a tenancy which was in these terms:- "With reference to our meeting with Mr. W.H. Huntley on Apr. 11, we regret that we must give you 3 months' notice to terminate the lease dated May 14, 1935. Under the conditions set out therein, you are entitled to receive a sum of 25 when vacant possession is given." His Lordship said of that notice, at 247:- "It is said that that is a bad notice according to the terms of the lease because it does not specify the date on which possession is to be given in that it does not state the date from which the three months are to run. Suppose that a notice is served by hand, undated, on a tenant: 'I, so-and-so, the landlord, hereby give you three months' notice in accordance with the tenancy to deliver up possession' or 'to - 15 - terminate the lease.' Does not the tenant know perfectly well when that notice expires, namely, in three months from the moment that it meets his eye? Assuming that the landlord is in a position to prove on what date that was, there is no uncertainty about the matter at all. So here, One would assume, that this notice was received in the course of post - I have heard nothing to the contrary - and, therefore, would operate at the expiration of three months from the defendants' sight of the notice on Apr. 23-Apr. 21, when it was posted, being a Saturday." The effect of those authorities is that the law does not require every notice to quit to contain a particular set of words. Where the giving of notice is stipulated in a written lease or other special agreement between the parties, whether or not the form of a given notice is effective to determine the tenancy, is primarily to be resolved by examining the notice against the terms of the provision for it. In the present case the notice required to terminate the relationship was the subject of express agreement to be found in the definition in the Schedule to the consignment distributor agreement of "the Term" as:- "A period commencing on the llth day of September 1982 and continuing for three years and thereafter until the expiration of not less than three months written notice of determination given by either party to the other." The document relied on by Shell as constituting such a notice was the notice given on 29 August 1985 or alternatively that given on 5 September 1985 which, it will be remembered, was in the following terms:- - 16- "Pursuant to the Consignment Distributor Agreement dated the llth September, 1981 made between The Shell Company of Australia Limited ('Shell') of the one part and Chenoa Pty. Ltd. of the other part, Shell hereby gives you notice of termination of the said Consignment Distributor Agreement to take effect on 6th December 1985." That notice, in my view, unequivocally determined from 6 December 1985 whatever legal relations the consignment distributor agreement brought into existence between Shell and Chenoa, including the relationship, whichever had been created, of landlord and tenant or licensor and licensee. I was referred by Mr Parker to J. & M. O'Brien rprises Pt td. v_ The Shell Company of Australia Ltd. (1983) S ATPR 40-356 where Neaves J had to consider whether monthly tenancy constituted by holding over under a clause in a written lease, had validly been determined by a notice of termination purportedly given in pursuance of s.16(3) of the Franchise Act either alone or in combination with an accompanying letter from Shell to the solicitors for the tenant requesting them to "inform your clients that they are required to vacate the subject premises by 3lst March 1981". His Honour held that no notice to quit valid at common law had been given because both documents "would have conveyed unequivocally to the recipient that Shell was relying solely on the statutory provisions and not on the general law". Accordingly it was concluded, at 44, 301 that:- "Shell, having proceeded and failed under subsec. 16(3) of the Petroleum Retail Marketing Franchise Act 1980 and the Notice of Termination read alone or together with the letters dated 29 December, 1980, not being a clear and unambiguous notice -17 - that it wished to rely on the general law as an alternative, may not rely on the notice as a notice under the general law to terminate the monthly tenancy. Shell is, therefore, not entitled to possession of the premises. This conclusion is, I think, supported by the reasoning in Cowan v_Wrayford [1953] 2 All E.R. 1138; Mills v Edwards £1971] 1 Q.B. 379". In my view, there was no such ambiguity in the notice given by Shell to Chenoa on 5 September 1985. It was expressly given pursuant to the consignment distributor agreement and did not purport to invoke any right accruing to Shell under the Franchise Act, or the general law. It was next pointed out on behalf of Chenoa that from 18 September 1980 the Franchise Act engrafted on to the contractual relationship between Chenoa and Shell a complex of statutory rights and obligations, one effect of which was to give Chenoa greater security of tenure than that conferred solely by its agreement with Shell. From that premise it was contended that s.6(1D), which was inserted in the Franchise Act by Act No 122 of 1984 with effect from 1 January 1985, took away from Chenoa certain proprietary rights which it had acquired as a result of the operation of the Franchise Act, as originally enacted, on the agreement between it and Shell. Accordingly, so it was argued, there should be applied in construing s.6(1D) the general rule of construction "that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the ety - 18 - past events." (Maxwell v Murphy (1957) 96 C.L.R. 261 per Dixon C.J. at 267). Construed in the light of that presumption, s8.6(1D), it was contended, contained a requirement that a franchisee be given notice and afforded a hearing before any rights which he had under the Franchise Act in force to 31 December 1984 were taken away. It is convenient to reproduce again the text of s.6(1D) which provides:- "(1D) Where- (a) premises were, in a statement lodged under section 11 of the Petroleum Retail Marketing Sites Act 1980 at any time before 1 September 1984, specified as being a retail site operated by a particular corporation; and (b) the premises have been operated as a retail site by the corporation or a related corporation on a day or days occurring during each of the following months, namely, September, October, November and December in the year 1984, then, in relation to any franchise agreement (whether entered into before, on or after 1 January 1985) in relation to which the premises are the marketing premises, this Act does not apply at any time before the end of the first month during which neither the corporation nor a related corporation operates the premises as a retail site." Mr Parker pointed to the concluding statement that "this Act does not apply at any time before the end of the first month during which neither the corporation nor a related corporation operates the premises as a retail site", and said that no point in time has been fixed to mark the commencement - 19 - of the period during which the Act is not to apply to premises which satisfy the criteria in paragraphs (a) and (bd). The starting point to be supplied, so it was argued, is a time after the Court has been persuaded that the premises in question satisfied the requirements in paragraphs (a) and (b), and after the franchisee has been afforded an opportunity to be heard. I reject that argument. The use of the present tense in the statement "this Act does not apply", together with the absence of any stipulation of the commencement of the period during which the Act is not to apply, signifies unequivocally that the Act is not to apply from the date on which s.6(1D) comes into force, i.e. 1 January 1985 until the end of the first month during which neither the corporation nor a related corporation operates the premises as a retail site. I find nothing in Mathieson v Burton (1971) 124 C.L.R. 1, to which I was referred by counsel for Chenoa, to contradict what I have just said. In that case, after an amendment contracting the class of protected persons, 5.83A of the Landlord nd_ Tenant ndment ¢ 1948 (N.S.W.) commenced with the words "Where a lessee of prescribed premises dies ...", The question for the High Court was whether the respondent who had certain rights as the daughter of a lessee of prescribed premises who had died before the amendment came into force, had been deprived of those rights because she was outside the narrower class of protected persons specified by the Act as amended. It was held that - 20 - the introductory words "Where a lessee of prescribed premises dies ..." confined the application of the amendment to those prescribed premises, the lessee of which died after the coming into operation of the amending section. Similarly, in the present case the non-application of the Franchise Act is confined to the period after the coming into operation of s.6(1D). However, the events on which that non-application is made to depend are expressly required by paragraphs (a) and (b) to have occurred before that date. In that' sense, s.6(1D) is "an enactment which interferes only with the future existence or operation of a previously acquired right or a previously incurred liability" (Staska_ v General Motors-Holden's Pty. Ltd. (1972) 123 C.L.R. 673 at 675), although it does so on the basis of facts ascertainable by reference to periods of time which ended before the section cane into operation. Another reason for rejecting the submission that s.6(1D) only operates to exclude the application of the Franchise Act to premises after the Court has pronounced that they answered the description in paragraphs (a) and (b) of the sub-section is provided by the fact that s.6(1D) says nothing about this or any other court being satisfied that the premises met the criteria in paragraphs (a) and (b). Thus it may be contrasted both with sub-ss. 16(4), (5) and (6) of the Franchise Act itself, and with s.130(2) of the Re-establishment and Employment Act 1945 examined by the High Court in Wheeler v War Veterans' Home (1953) 89 C.L.R. 353 to which Mr Parker referred. That sub-section provided:- - 21 - "The appropriate court may, on the application of the Attorney-General or of any person interested, make an order that a transaction or proceeding entered into or taken in contravention of this Part shall be invalidated, but the court' shall not make any such order if the court is satisfied that the effect of the order (if made) would be to prejudice the rights of a person in respect of, or arising out of, the transaction or proceeding which are acquired bona fide and without notice of the contravention." In the event that I should find, as I have, that Shell is entitled to possession of the premises, I was invited on behalf of Chenoa to decline to make an order in favour of Shell on its cross-claim or to defer the operation of the order to some unspecified date in the future. In support of that invitation, reference was made to evidence that Chenoa or another company, Anelim Pty. Ltd., associated with Chenoa, would require between six and twelve months to develop as a truck refuelling station, a site opposite the subject premises which Anelim Pty. Ltd. holds on lease from the Port of Melbourne Authority. I was not referred to any authority which suggested that a court has a general discretion to decline to make an order for possession in a case such as the present or to postpone the operation of the order (except to accommodate an appeal). However, even if the court has such a_ general discretion, in the light of my conclusion that Chenoa's right to occupy the premises has been properly determined with effect from 6 December 1985, in the manner contemplated by - 22 - the agreement between it and Shell, I would not exercise the discretion in favour of Chenoa in either of the ways proposed. Mr Parker relied on a line of authority which included Dr Bentley's Case 1 Strange, 557.; 93 E.R. 698 Cooper v_ The Wandsworth Board of Works (1863) 14 C.B. (N.S.) 180; 143 E.R. 414 and Twist v Randwick Municipal Council (1976) 136 C.L.R. 106, in support of the proposition that the Court was bound to afford Chenoa an opportunity to be heard before making an order which has the effect of depriving it of rights conferred on it by the Franchise Act. As Dixon C.J. and Webb J. pointed out in The Commissioner of Police v Tanos (1958) 98 C.L.R. 383 at 396, the application of the general principle enunciated in Cooper v_ The Wandsworth Board of Works and the other cases to which I was referred "to proceedings in the established courts is a matter of course". However, as I have already indicated, the relevant effect on the rights of a franchisee is brought about by the provisions of s.6(1D) of the Franchise Act as amended, not by any order of the Court resolving a controversy in which those provisions are called in aid. Chenoa has been allowed to say all that it wished on the resolution of that controversy between it and Shell. Given the conclusions which have been reached in that resolution, there were no rights of Chenoa existing after 6 December 1985 to be affected, so the occasion to afford Chenoa a further opportunity to be heard does not arise. ~ 23 - I was also pressed on behalf of Chenoa to make a declaration in terms of pargraph 3 of the prayer for relief in its application that "the notice of the 24th June 1985 by the Respondent to the Applicant under Section 6(1E) of the Petroleum Retail Marketing Franchise Act 1980 (Cth) is void and of no effect". It was conceded that throughout the hearing of this matter before me Shell placed no reliance on the notice purportedly given by it under s.6(1E). Nor was that notice regarded by either party as having any continuing significance. Nevertheless, the issuing of the notice under 8.6(1E) was said to be one of the events which principally prompted Chenoa to issue its application. Accordingly, so it was argued, the declaration should be made, if for no other reason, to provide a basis for arguing that costs incurred between December 1985 and March 1987 when it became apparent that the notice under s.6(1E) would not be relied on, should not follow the event. I consider that what has been called "the broad discretion" to grant declaratory relief should not be exercised if the declaration sought would not resolve a real, and not a theoretical question, presently in issue between the parties. (See e.g. Forster vy Jododex Australia Pty. Ltd. (1972) 127 C.L.R. 421 per Gibbs J. at 437.) In the present case, neither party has found it necessary to direct evidence or argument to the efficacy of the notice of 24 June 1985 said to have been given under s.6(1E) of the Franchise Act. Accordingly, any question between the parties in respect of that notice remains hypothetical and the declaration should be refused. However, neither party is precluded from urging that the issuing of that notice be - 24 - given whatever weight it is contended it should bear on the question of costs. It was also submitted on behalf of Chenoa that in the event of the Court refusing an order for possession, or deferring the operation of such an order, an injunction in terms similar to that granted by Woodward J. on 22 August 1986 should protect Chenoa from a variation in the rates of commission allowed and paid to it on the sale of Shell products as long as it remains in occupation of the site at 542 Footscray Road, West Melbourne. Woodward J.'s injunction was in the following terms:- "Upon the applicant giving the usual undertaking as to damages, the respondent be restrained until the final determination of this action, or until further order, from varying the rates of commission allowed and paid by the respondent to the applicant from those applying between the parties in June 1986." Because I have concluded that Shell is entitled to have the benefit forthwith of an order for possession, there is no scope for continuing the protection which his Honour then granted by way of interlocutory relief. Since that interlocutory injunction was expressed to continue "until the final determination of this action or further order" it will cease, according to its terms, to have effect on the pronouncement of final orders in these proceedings. It therefore requires no further order to be made by me other than by way of providing for an inquiry into the damages (if any) suffered by Shell by reason of that restraint having been imposed on it since 22 August 1986. a" - 25 - In the result, therefore, for the reasons published on 10 March 1988 and this day, the application will be dismissed and there will be an order on the cross-claim that Shell have possession of the premises at 542 Footscray Road, West Melbourne. I shall give directions on a date to be fixed for the conduct of an inquiry into the damages (if any) suffered by Shell as a result of the order of Woodward J. of 22 August 1986. As previously indicated, I shall hear counsel at 10.15 a.m. on 15 April 1988 on the question of costs. I certify that this and the twenty-four (24) preceding pages are a@ true copy of the Reasons for Judgment herein of his Honour Mr. Justice Ryan. Associate: #@ > ~YPara>r«. Dated: 13 April 1988 - 26 - Appearances Counsel for Chenoa Pty. Ltd. R.W.R. Parker QC and P. Blackburn-Hart Solicitors for Chenoa Pty. Ltd. Stojanovic & David Counsel for The Shell Company B.J. Shaw QC and of Australia Limited J.E. Middleton Solicitors for The Shell Arthur Robinson Company of Australia Limited & Hedderwicks Dates of Hearing : 25, 29, 30, 31 March 1988