Haramosse Pty Ltd v Mobil Oil Australia Ltd [2000] FCA 20

FEDERAL COURT OF AUSTRALIA

Haramosse Pty Ltd v Mobil Oil Australia Ltd [2000] FCA 20

HARAMOSSE PTY LTD & ANOR v MOBIL OIL AUSTRALIA LIMITED NO T 31 OF 1999 HEEREY J 18 JANUARY 2000 MELBOURNE (by video link from Hobart)

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T31 OF 1999

BETWEEN: HARAMOSSE PTY LTD ACN 009 530674

First Applicant

MARTIN ARTHUR ARNOLD

Second Applicant

AND: MOBIL OIL AUSTRALIA LIMITED

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 18 JANUARY 2000

WHERE MADE: MELBOURNE (by video link from Hobart)

THE COURT ORDERS THAT: 1. The applicants' application for an interlocutory injunction is dismissed. 2. The applicants pay the respondent's costs of the injunction. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T31 OF 1999

BETWEEN: HARAMOSSE PTY LTD ACN 009 530674

First Applicant

MARTIN ARTHUR ARNOLD

Second Applicant

AND: MOBIL OIL AUSTRALIA LIMITED

Respondent

JUDGE: HEEREY J

DATE: 18 JANUARY 2000

PLACE: MELBOURNE (by video link from Hobart)

REASONS FOR JUDGMENT 1 I am not disposed to grant an interlocutory injunction in this matter. The substance of the applicants' claim is that the respondent and the first applicant entered into a retail area franchise agreement extending to five service stations in the suburbs of Hobart for a period of five years with an option for a further five-year renewal. The agreement is said to have arisen out of a course of negotiations and conduct. Central to the applicants' case is a latter of intent dated 22 September 1997 from the respondent which sets out the terms on which such a retail area franchise would be granted. Notable amongst those terms was an up-front franchise fee of $200,000, being $45,000 per site payable within 60 days of the start date. 2 There was no suggestion that that amount was paid. Nor was the letter of intent signed by or on behalf of the first applicant. In any event, the letter of intent itself states that it is not a contract and is conditional on the negotiation and execution of final contracts. On the undisputed evidence the first applicant did not perform the requirements set out in the letter. The applicants do not suggest that the parties agreed to vary any of the terms in the letter of intent. It seems inherently unlikely that the respondent would so agree. So I do not think there is an arguable case that the parties reach a concluded agreement as to the grant of these retail area franchises, such an agreement to be inferred from negotiations and conduct. 3 In any event, as counsel for the respondent pointed out, on the applicants' case the agreement was for all five sites. However, the correspondence subsequently between the parties indicated an agreement by the applicants in June of last year to vacate by the end of July the Augusta Road and Macquarie Street sites and surrender the remaining three sites by the end of November 1999. The Augusta Road and Macquarie Street sites have now in fact been vacated but not the others. So even if there were a binding agreement it would seem that the applicant has accepted repudiation of it by the respondent and is no longer in a position to therefore seek specific performance. 4 The alternative claim as to a commission agency agreement alleges that the respondent has failed to give the requisite three months' notice. However, the affidavit of Mr Ian Rosen on behalf of the respondent produces the commission agency agreements in question and it is clear from their terms that the commission agency expired on 12 January 2000. So I am not satisfied that there is a serious issue to be tried as to the entitlement of the applicant to remain in possession of the remaining three sites. The application for an interlocutory injunction will be dismissed with costs.