Loren Enterprises Pty Ltd v The Shell Co of Australia Ltd [2001] FCA 754

FEDERAL COURT OF AUSTRALIA

Loren Enterprises Pty Ltd v The Shell Co of Australia Ltd [2001] FCA 754

TRADE AND COMMERCE – miscellaneous statutory provisions – government financial assistance to or regulation of industry and trade – legislation as to petroleum marketing franchises – whether amount payable by the respondent by way of commission to the appellant for provision by the appellant of the service of selling diesel fuel as diesel fuel agent for the respondent can be regarded as a "rebate, waiver, discount, allowance or like arrangement" – whether the amount "payable" by the appellant can be determined by looking at what is payable by the appellant [to determine whether it is "less than it would otherwise be?] can be determined by looking at what is payable by the respondent as opposed to by the appellant alone – whether, in order to determine whether an increase is unreasonable regard may be had to the market value of (i) interest(s), goods or services provided by the respondent to the appellant under an agreement and (ii) interest(s), goods or services provided by the appellant to the respondent in exchange for the rebate, waiver, discount, allowance or like arrangement given by the respondent (by reason of the reduction of which the increase occurred) STATUTES – interpretation – particular words and phrases – relevance of purposive construction – whether diesel fuel commission an "allowance or like arrangement" – whether amount "less than would otherwise be"

Petroleum Retailing Marketing Franchise Act 1980 (Cth) ss 9, 9A. 26(4) Shorter Oxford English Dictionary 4th ed. 1993 Meagher, Gummow and Lehane JJ, Equity Doctrines and Remedies 3rd ed. 1992

Maxwell v Keun [1928] 1 KB 645 cited Brooks v Upjohn Company (1998) 85 FCR 469.cited Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90 cited Rotherwood Pty Ltd v Commissioner of Taxation (1996) 64 FCR 313 cited Australian Competition and Consumer Commission v Visy Paper Pty Ltd[2000] FCA 1640 cited Vickers v Minister for Business Affairs (1982) 43 ALR 389 cited Kimberley-Clark Ltd v Commissioner of Patents (1988) 84 ALR 685 cited Lyons v Registrar of Trade Marks (1983) 50 ALR 496 cited Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 cited J & M O'Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (1982) 70 FLR 33 cited Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516 cited Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 cited Best v Caltex Oil (Australia) Pty Ltd (1989) 87 ALR 1 cited Richards v Golden Fleece Petroleum Pty Ltd (1983) 49 ALR 337 cited LOREN ENTERPRISES PTY LTD v THE SHELL CO OF AUSTRALIA LTD W 91 of 2000 SPENDER, CARR & R D NICHOLSON JJ 20 JUNE 2001 PERTH