Southern Oil Refining Pty Ltd v Hydrodec Australia Pty Ltd [2021] NSWSC 24

Supreme Court New South Wales

Medium Neutral Citation: Southern Oil Refining Pty Ltd v Hydrodec Australia Pty Ltd [2021] NSWSC 24 Hearing dates: 7, 8, 9, 10, 11, 14, 15, 18 and 21 December 2020; further written submissions ending 23 December 2020 Date of orders: 29 January 2021 Decision date: 29 January 2021 Jurisdiction: Equity - Expedition List Before: Parker J Decision: See [659]-[664] Catchwords: CONTRACTS – construction – interpretation – co-location of refinery plant – owner's obligation to make capital payments based on operator's installation expenditure – later informal variation for further expenditure – whether effective – operator's obligations to maintain expenditure records and submit to audit – whether complied with – expert determination of "written down value" – whether binding – whether owner entitled to leave plant behind on termination of contract – whether owner obliged to remove plant on termination of contract CONTRACTS – breach of contract – co-location of refinery plant – operator's obligation to maintain co-located plant – whether obligation breached – whether owner's obligation to pay tolling fees dependent on operator's compliance – whether tolling fees already paid recoverable as damages – owner contractually entitled to remove plant – operator's obligation to co-operate – whether obligation breached by interfering with owner's contractors – operator's obligation to manage refinery feedstock – whether obligation breached by mixing contaminated and non-contaminated feedstock TORTS – interference with goods – conversion – co-location of refinery plant – owner contractually entitled to remove plant – whether interference by operator with owner's contractors would amount to conversion of plant EQUITY – equitable remedies – injunction – trespass – co-location of refinery plant – plant abandoned on land by owner after termination of contract – whether abandonment effective – whether damages an adequate remedy – mandatory injunction for removal GUARANTEE AND INDEMNITY – discharge of guarantor -– variation increasing principal's liability to creditor – whether surety consented – whether creditor breached record-keeping duties and obligation to co-operate with principal – whether surety discharged by such breaches EVIDENCE – character evidence – tendency rule – application of rule to corporate entity – probative value Legislation Cited: Polychlorinated Biphenyl (PCB) Chemical Control Order 1997, ord 4.17 Evidence Act 1995 (NSW), pt 3.6, ss 38(1)(b), 97, 98, 135(c) Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Burger King Corporation v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558 Cenric Group v TWT Property Group [2018] NSWSC 1570 Combined Insurance Company of America v Trifunovski (No 4) [2011] FCA 271 Elomar v R [2014] NSWCCA 303 Gilgandra Marketing Co-operative Ltd v Australian Commodities & Merchandise Pty Ltd [2011] NSWSC 16 Hillam v Iacullo (2015) 90 NSWLR 422 Hughes v The Queen (2017) 263 CLR 338 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 Mackay v Dick (1881) 6 App Cas 251 Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 Okwume v Commonwealth of Australia [2016] FCA 1252 Orr v Lane (1951) 52 SR (NSW) 37 Petkovski v Huang [2018] NSWSC 1667 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Re Gillie (1996) 70 FCR 254 Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 2) [2018] NSWSC 1776 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 Thomas v Van Den Yssel (1976) 14 SASR 205 Tito v Waddell (No 2) [1977] Ch 106 TX Australia Pty Ltd v Broadcast Australia Pty Ltd [2012] NSWSC 4 Vincent v State Bank of NSW Ltd (Supreme Court of New South Wales, Young J, 30 July 1993) Texts Cited: Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity Doctrines & Remedies (LexisNexis Butterworths, 5th ed, 2015) Sappideen, C and P Vines, Fleming's The Law of Torts (Thomson Reuters, 10th ed, 2011) Category: Principal judgment Parties: Southern Oil Refining Pty Ltd (Plaintiff) Hydrodec Australia Pty Ltd (First Defendant) Hydrodec Group Plc, UK Company Number 05188355 (Second Defendant) Greenbottle Re-Refining (UK) Limited, UK Company number 09237640 (Third Defendant) Representation: Counsel: JJ Hutton/E Bartley (Plaintiff) T Rollo (First and Second Defendants)