Caltex Petroleum Pty Limited v Flomad Pty Limited [2003] FCA 648

FEDERAL COURT OF AUSTRALIA

Caltex Petroleum Pty Limited v Flomad Pty Limited [2003] FCA 648

TRADE AND COMMERCE - Franchise – Petroleum Retail Marketing Franchise Act 1980 (Cth) - whether valid notice of termination pursuant to s16(3) of the Petroleum Retail Marketing Franchise Act 1980 (Cth) – whether termination just and equitable in all the circumstances – termination pursuant to s16(2)(j) of the Petroleum Retail Marketing Franchise Act 1980 (Cth) for breach of franchise agreement CONTRACT - Breach of franchise agreement due to failure to pay rent pursuant to lease in franchise agreement – failure to pay debts pursuant to franchise agreement - failure to carry out obligations under the franchise agreement – whether franchisee (respondent) purchased "foreign fuel" - purchase of fuel from another source other than the franchisor (applicant) - possession of the service station premises following termination of franchise agreement – claim for debt due under the franchise agreement based on certificate of debt – whether damages for purchase of "foreign fuel" – whether franchisor lost the opportunity to sell its products from the service station TAXES AND DUTIES - Excise – application of s160 of the Excise Act 1901 (Cth) to alterations in the duty collected - right to deduct from the price of the goods the difference caused by an alteration to the duty collected - whether there was an alteration to the duty collected – whether alteration occurred after agreement was made for the sale and delivery of goods EQUITY – Restitution – money had and received - mistaken payment – partial failure of consideration – unjust enrichment - amount paid by retail franchisee to franchisor in respect of excise duty on goods supplied – whether price of goods and amount of excise separate components of consideration – whether components severable TRADE PRACTICES – Misleading and deceptive conduct – Trade Practices Act 1974 (Cth) s52 – whether misleading representations made regarding the amount of excise duty paid by franchisor – whether misleading representations made regarding shrinkage of fuel - whether misleading representations made regarding the consistent temperature of fuel - whether misleading representations made regarding quantity of fuel able to be sold by the franchisee CONTRACT – contract for the sale of the service station premises – whether contract between applicant and respondent - whether offer to sell the premises – whether meeting of minds in relation to the for sale – claim for specific performance CONTRACT – Breach of implied term contract – whether loss suffered due to the supply of "hot fuel" – whether fuel decreased in temperature and volume after delivery to franchisee – whether less fuel able to be sold by franchisee due to shrinkage of fuel - whether contractual obligation in franchise agreement to ensure the same quantity of fuel supplied to the franchisee able to be sold Excise Tariff Act 1921 (Cth) s5 Excise Act 1901 (Cth) ss 54, 61C, 160 Petroleum Retail Marketing Franchise Act 1980 (Cth) ss 16(2)(j), 16(3), 16(6) Instruments Act 1958 (Vic) s126 Crespin & son v Colac Co-operative Farmers Ltd. (1916) 21 CLR 205, cited Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516, distinguished Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1998) 79 ALR 83, applied Caltex Oil (Australia) v Best (1990) 170 CLR 516, distinguished Foran v Wight (1989) 168 CLR 385, applied CALTEX PETROLEUM PTY LIMITED v FLOMAD PTY LIMITED V844 OF 2001 MARSHALL J 26 JUNE 2003 MELBOURNE