Ringrow Pty Ltd v BP Australia Pty Ltd [2003] FCA 1466

FEDERAL COURT OF AUSTRALIA

Ringrow Pty Ltd v BP Australia Pty Ltd [2003] FCA 1466 Federal Court Rules Order 62 r 4(1), r 4(2)(d), r 5(b), r 8, r 12, r 19, r 22, r 39 Federal Court of Australia Act 1976 (Cth) s 43 Supreme Court Act 1970 (NSW) s 76, Part 52A r 2, r 6, r 32 Public Sector Management Act 1988 (NSW) Part 2 Legal Profession Act 1987 (NSW) s 202, 208F, 208G 208J, 208KA, 208L, 208M, Division 6 Part II, Division 6 Part II Subdivision 4A, 4B RINGROW PTY LTD v BP AUSTRALIA PTY LTD N 278 OF 2003 ULTIMATE FUEL PTY LTD v BP AUSTRALIA PTY LTD N 279 OF 2003 NADER-ONE PTY LTD v BP AUSTRALIA PTY LTD N 280 OF 2003 HELY J 15 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 278 OF 2003

BETWEEN: RINGROW PTY LTD

APPLICANT AND: BP AUSTRALIA PTY LTD

RESPONDENT BETWEEN: BP AUSTRALIA PTY LTD

CROSS-CLAIMANT AND: RINGROW PTY LIMITED

CROSS-RESPONDENT JUDGE: HELY J

DATE OF ORDER: 15 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT DECLARES THAT:

1. The Cross-Claimant/Respondent's Notice of Termination dated 2 December 2002 in respect of the BP Privately Owned Sites Agreement dated 28 July 1999 in relation to a BP branded service station at 115-119 Hume Highway, Lansvale, is valid and effective. 2. The Cross-Claimant/Respondent's Notice of Termination dated 2 December 2002 in respect of the BP Privately Owned Sites Agreement dated 1 July 1999 in relation to a BP branded service station at 359-365 Elizabeth Drive, Mount Pritchard is valid and effective. 3. The BP Privately Owned Sites Agreement dated 28 July 1999 in relation to a BP branded service station at 115-119 Hume Highway, Lansvale was validly terminated by the Cross-Claimant/Respondent on 2 December 2002. 4. The BP Privately Owned Sites Agreement dated 1 July 1999 in relation to a BP branded service station at 359-365 Elizabeth Drive, Mount Pritchard was validly terminated by the Cross-Claimant/Respondent on 2 December 2002. 5. The option to purchase the land described as Folio Identifier 15/652782 and known as 115-119 Hume Highway, Lansvale was validly exercised by the Cross-Claimant/Respondent on 19 June 2003 pursuant to the Option Deed dated 28 July 1999. 6. The Cross-Claimant/Respondent is entitled to payment of liquidated damages in the amount of $84,256.00 pursuant to the BP Privately Owned Sites Agreement dated 1 July 1999 in relation to a BP branded service station at 359-365 Elizabeth Drive, Mount Pritchard; and 7. The Applicant/Cross-Respondent is liable to pay to the Cross-Claimant/Respondent the sum of $36,248.23 pursuant to clauses A14.2(f) and A16.9 of the BP Privately Owned Sites Agreement dated 28 July 1999 in relation to a BP branded service station at 115-119 Hume Highway, Lansvale and the BP Privately Owned Sites Agreement dated 1 July 1999 in relation to a BP branded service station at 359-365 Elizabeth Drive, Mount Pritchard. THE COURT ORDERS THAT: 1. The Third Further Amended Statement of Claim is dismissed. 2. The parties are released from the undertakings given to the Supreme Court of New South Wales on 10 January 2003 and the agreements made on that day by the parties and noted by the Supreme Court of New South Wales are discharged. 3. The Applicant/Cross-Respondent pay to the Cross-Claimant/Respondent: (a) the sum of $84,256.00 as liquidated damages; (b) interest on the amount in paragraph 3(a) in the sum of $8,556.72; (c) the sum of $36,248.23 for costs and expenses incurred by the Cross-Claimant/Respondent prior to the commencement of proceedings; (d) interest on the amount in paragraph 3(c) in the sum of $3,493.23; and (e) the Cross-Claimant/Respondent's costs of the proceedings (including the costs of the proceedings whilst in the Supreme Court of New South Wales), including any reserved costs. 4. The parties have liberty to apply on three days notice.