AWB Limited v Agripark (Moree) Pty Ltd [2002] FCA 864

FEDERAL COURT OF AUSTRALIA

AWB Limited v Agripark (Moree) Pty Ltd [2002] FCA 864 AWB LIMITED v AGRIPARK (MOREE) PTY LTD (IN LIQUIDATION) & ORS V 411 of 2002 HEEREY J 25 JUNE 2002 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 411 OF 2002

BETWEEN: AWB LIMITED

(ACN 081 890 459)

APPLICANT

AND: AGRIPARK (MOREE) PTY LTD (IN LIQUIDATION)

(ACN 087 154 194)

FIRST RESPONDENT

STEPHEN HALL

SECOND RESPONDENT

MARTIN GREEN

THIRD RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 25 JUNE 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application for an interlocutory injunction is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 411 OF 2002

BETWEEN: AWB LIMITED

(ACN 081 890 459)

APPLICANT

AND: AGRIPARK (MOREE) PTY LTD (IN LIQUIDATION)

(ACN 087 154 194)

FIRST RESPONDENT

STEPHEN HALL

SECOND RESPONDENT

MARTIN GREEN

THIRD RESPONDENT

JUDGE: HEEREY J

DATE: 25 JUNE 2002

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant (AWB) seeks, ex parte, an interlocutory injunction which in substance would direct the first respondent (Agripark) and its liquidators, the second and third respondents, to use certain of its equipment and direct certain of its staff to load wheat onto trucks of Kyogle Wheat Pty Ltd (Kyogle). The wheat is AWB's wheat and has been held by Agripark in its storage facilities at Moree since early this year. Agripark has refused to load the wheat until it is paid some $60,000 which it says AWB owes for storage charges. For its part, AWB claims Agripark owes it $1.5m for the cost of cleaning wheat spoiled as a result of improper storage. AWB has sold wheat by sample to Kyogle. There are only three days left, tomorrow, Thursday and Friday, for AWB to make wheat available to Kyogle to fulfil the contract. 2 I am not prepared to make the orders sought. Courts are very reluctant to make interlocutory orders ex parte without giving the other party an opportunity to present its case. Courts are also reluctant to make, on an interlocutory basis, mandatory orders, that is, orders which require a defendant to perform positive acts as opposed to merely refraining from engaging in conduct. Courts are also reluctant to grant injunctive relief which will require supervision. 3 All these considerations would apply even if the case presented to me at the moment showed a strong prospect of success on the merits, which I must say, I do not think it does. 4 As to the claim under s 52 of the Trade Practices Act 1974 (Cth) (the Act), all that I am told is that AWB had a contract with Kyogle made in late May, and to the knowledge of Agripark, since early June AWB has used, for the performance of that contract, wheat stored by Agripark. So it does not seem to be put that AWB entered into the contract with Kyogle on the basis of any representation made by Agripark. At the most, it is said that since 3 June, AWB has obtained delivery of wheat from Agripark's premises. If Agripark threatens to not provide wheat unless it is paid the $60,000 it alleges is due for storage, at worst that is a breach of contract and not misleading or deceptive conduct. 5 As to the claim for unconscionable conduct, contrary to s 51AA of the Act, at worst, it seems to be a case of the liquidators using what is said to be an unfair bargaining position. But that does not strike me as unconscionable or, in a commercial setting, something that shocks the conscience. It is just that the liquidators have found themselves, as a result of circumstances, in a strong bargaining position. 6 I cannot help but notice that section 51AC, which refers more specifically to conduct in certain transactions, expressly excludes the acquisition or supply of goods to or from corporations which are listed public companies, as AWB is. So, far from the specific factors mentioned in s 51AC(3) being applied to section 51AA, I think the opposite conclusion applies. AWB, being a listed public company, is to be taken to be able to look after its own interests and to that extent is, one might have thought, excluded from the broad reach of section 51AA. 7 There is also the factor that, practically speaking, the relief sought, that is to say a court-mandated loading of the AWB's wheat over the next three days by which time the contract with Kyogle would be completed, would give AWB, on an ex parte basis, all the relief it could possibly seek without giving the respondents any opportunity to be heard. 8 For those reasons I decline to make the orders sought. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.