New South Wales Supreme Court CITATION : Goodlen Pty Ltd v BP Australia Pty Ltd [2004] NSWSC 646 HEARING DATE(S) : 05/07/04, 06/07/04, 07/07/04, 08/07/04, 09/07/04, 16/07/04 JUDGMENT DATE : 3 August 2004 JUDGMENT OF : Gzell J DECISION : Plaintiff refused relief. Declarations that notices had terminated the franchise agreements. CATCHWORDS : STATUTES - Interpretation - The Petroleum Retail Marketing Franchise Act 1980 (Cth) - Plaintiff seeking declaration that notices of termination of franchise agreements had no effect - Whether clear days are required in a notice of termination - Whether the description of a statutory holding over under a franchise agreement was adequate - Whether a renewed agreement may be terminated for events preceding the renewal - Whether a notice must contain all facts relied upon or reference may be made to extraneous documents - Whether the notices contained sufficient particularity - Whether it was just and equitable to declare the notices to have terminated the franchise agreements Petroleum Retail Marketing Franchise Act 1980 (Cth) Acts Interpretation Act 1901 (Cth) Trade Practices Act 1974 (Cth) LEGISLATION CITED : Occupational Health and Safety Act 2000 (NSW) Food Act 1989 (NSW) Food Regulation 2001 (NSW) Australia New Zealand Food Standards Code. Occupational Health and Safety Regulation 2001 Caltex Oil (Aust) Pty Ltd v Best (1990) 170 CLR 516 R T & M I Abela Pty Ltd v Esso Australia Ltd (1989) 89 ALR 485 Lester v Garland (1808) 15 Ves Jun 248 (33 ER 748) Morton v Hampson [1962] VR 364 Armstrong v Great Southern Gold Mining Co NL (1911) 12 CLR 382 Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161 BP Australia Ltd v Carrige (1992) 109 FLR 236 Ward v Berndston (1889) 8 NZLR 21 Joseph Guljas v Caltex Oil (Australia) Pty Ltd, unreported, FCA, 13 May 1992 CASES CITED : Scurr v Brisbane City Council (1973) 133 CLR 242 Anjac Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 9 FCR 553 Serhan v Ampol Petroleum Ltd (1985) 58 ALR 347 Hudson v BP Australia Ltd, unreported, FCA, 23 September 1984 Skouloudis v Georges Jet Gas (Aust) Pty Ltd, unreported, FCA, 14 August 1987 Gerraty v McGavin (1914) 18 CLR 152 Rider v Ford [1923] 1 Ch 541 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 Ampol Ltd v Calaby Pty Ltd (1991) 30 FCR 426 Jones v Dunkel (1959) 101 CLR 298 Briginshaw v Briginshaw (1938) 60 CLR 336 PARTIES : Goodlen Pty Ltd - Plaintiff BP Australia Pty Ltd - Defendant FILE NUMBER(S) : SC 1331/04 COUNSEL : Mr G M McGrath - Plaintiff Mr R M Smith SC/ Mr M A Jones - Defendant SOLICITORS : Stojanovic Solicitors Corrs Chambers Westgarth IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION GZELL J TUESDAY 3 AUGUST 2004 1331/04 GOODLEN PTY LTD V BP AUSTRALIA PTY LTD JUDGMENT 1 The plaintiff operated eight service stations under a renewed multi-site franchise agreement with the defendant. It operated a ninth site at Warwick Farm by way of holding over under the original multi-site franchise agreement. The defendant purported to terminate the agreements. The Petroleum Retail Marketing Franchise Act 1980 (Cth) ("PRMF Act"), s 16(4) provided that a franchisee in receipt of a notice of termination might apply to a court for an order declaring the notice to have had, or to have, no effect. The plaintiff sought such declarations. 2 The agreements were franchise agreements in terms of the PRMF Act, s 3(1). That legislation was introduced to give greater security of tenure to franchisees (Caltex Oil (Aust) Pty Ltd v Best (1990) 170 CLR 516 at 526-527, R T & M I Abela Pty Ltd v Esso Australia Ltd (1989) 89 ALR 485 at 490). Section 16(1) provided that a franchisor might terminate a franchise agreement in accordance with that section but not otherwise. The plaintiff argued that the notices of termination did not comply with that provision. 3 The PRMF Act, s 16(3)(a) provided that a notice terminating a franchise agreement should inform the franchisee that it was to be terminated on a specified date being a date not earlier than 30 days after the day on which the notice was served unless the court allowed a lesser period. The first notice of termination was served on the plaintiff on 9 January 2004. It specified 8 February 2004 as the date on which termination was to take place. The plaintiff submitted that this was one day short. 4 In Lester v Garland (1808) 15 Ves Jun 248 at 257 (33 ER 748 at 752), Sir William Grant MR considered whether, in terms of a bequest of residue, a beneficiary had, within six calendar months after the testator's death, given security not to marry. The Master of the Rolls held the view that the day of an act done or an event happening was to be excluded in the computation of time with the consequence that the giving of the security on 12 July following the death of the testator on 12 January was in time. That approach was adopted in Morton v Hampson [1962] VR 364 in calculating a 14 day period within which an act was to be done after a specified event on 22 June with the consequence that the act done on 7 July was out of time. 5 The Acts Interpretation Act 1901 (Cth), s 36(1) reflected this approach. It provided that where any period of time, dating from a given day, act, or event was prescribed, time should, unless a contrary intention appeared, be reckoned exclusive of such day or of the day of such act or event. 6 If that approach applies to the first notice of termination, the date specified in it was proper for it was the 30th day after service counting from the day after, 10 January 2004. 7 The Acts Interpretation Act 1901 (Cth), s 36(1) may not have applied to the instant circumstances because it applied to a reckoning of time from a given day, act or event whereas the PRMF Act, s 16(3)(a) required a reckoning to a given day. 8 Clear days are usually understood to be reckoned not only excluding the day of the event but also excluding the last day of the period (Armstrong v Great Southern Gold Mining Co NL (1911) 12 CLR 382 at 387-388). The plaintiff submitted that the specified time in the first termination notice was to be reckoned on this basis. 9 In Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161 at 183, Fullagar J drew a distinction where such phrases as "at least" and "not less than" are used in reckoning time. If the purpose is to define a period of time at the expiration of which an act might be done, clear days are required: the prescribed number of days must elapse between the two events. If the purpose is to define a period within which an act might be done, clear days are not required: the act must be done before the expiration of the last of the prescribed number of days. 10 The parties thought that BP Australia Ltd v Carrige (1992) 109 FLR 236 was direct authority for the plaintiff's submission. It is not. Under consideration was a rule providing that a party might serve on another party a notice stating that unless that party, within a time to be expressed in the notice, "which shall not be earlier than 14 days after service", disputed a fact specified in the notice, the fact should be taken to be admitted. At 240, Master Lefevre concluded that the expression was equivalent to "which shall not be less than 14 days after service". He applied the distinction stated in Balmford and concluded that since the period was one within which an act was to be done, clear days were not required: the specification in the notice of the fourteenth day after service was proper. The authority supports the defendant's contention that clear days were not required in the specification of the termination date in the first notice of termination. 11 That contention is also supported by the ordinary meaning of the language used in the PRMF Act, s 16(3)(a). If one is entitled to specify a date not earlier than 30 days after service, one may not specify the twenty ninth day but one may specify the thirtieth day. That day is not less than 30 days from service. Such an approach was taken by Williams J in Ward v Berndston (1889) 8 NZLR 21. Under consideration was a provision prescribing that an appeal from a Warden's Court should be heard at the next sitting of the District Court not earlier than 20 days from the time the decision in the Warden's Court was given. His Honour held that clear days were not required. At 27-28 he said: "In the absence of any arbitrary rule of construction of the particular form of words used in the section, the words should receive their natural meaning. In ordinary English, not earlier than a particular day does not necessarily mean later than such a day. If the act, whatever it is, is done on the day itself, it is done not earlier than the day." 12 In my view the first notice of termination specified a termination date that was not earlier than 30 days after service of the notice and there was no breach of the PRMF Act, s 16(3)(a). 13 The original multi-site franchise agreement created a term from 15 October 1998 to 14 October 2003. Central to the legislative scheme to provide greater security to franchisees, s 13 of the PRMF Act provided for a minimum nine year term for franchise agreements and any renewals thereof. Section 13(2) provided that a franchise agreement and any renewal should not be less than three years except where an original agreement or an original agreement and any previous renewals amounted in aggregate to a period more than six years but less than nine years in which event the franchise agreement by way of renewal should be for a period not less than the difference between nine years and the aggregate. 14 The first notice of termination described the contract as "BP Multi-Site Franchise Agreement dated 15 October 1998, renewed on 15 October 2003". The plaintiff submitted that the notice was bad because it purported to terminate a composite agreement that did not exist. 15 For this proposition the plaintiff relied upon Joseph Guljas v Caltex Oil (Australia) Pty Ltd, unreported, FCA, 13 May 1992. In that case the plaintiffs had been served with a notice of termination of a franchise agreement under the PRMF Act and sought an interlocutory injunction restraining the defendant from terminating the agreement. They alleged that the notice was bad and representations made on behalf of the defendant in contravention of the Trade Practices Act 1974 (Cth), induced them to take an earlier assignment of a franchise agreement for the balance of its term. Subsequently the plaintiffs entered into a new franchise agreement for a further term. Cooper J took the view that the later agreement constituted a new, complete and independent agreement between the parties, that such rights as the plaintiffs had were sourced in the second agreement, their rights under the earlier agreement having been spent by effluxion of time or the entry into the new agreement. 16 The notice of termination contained allegations of conduct that preceded the second agreement. His Honour concluded that they did not constitute breaches of the second agreement. The notice of termination also contained allegations of breaches occurring during the second agreement. His Honour concluded that the plaintiffs had not established a serious question to be tried that the notice of termination was ineffective with respect to the latter allegations. In addition, since the alleged representations related to the first agreement and not the second, his Honour concluded that they lacked the necessary causative element to give rise to relief under the Trade Practices Act 1974 (Cth). In the result, his Honour refused to grant the interlocutory relief. 17 His Honour was not concerned with a description of the second agreement. His decision established that a renewal creates a new and discrete contract. The decision is no support for the submission that the description in the first notice of termination was of a composite contract that did not exist. 18 The PRMF Act, s 13 speaks in terms of a franchise agreement entered into by way of renewal. Section 17 prevents a franchisor refusing to renew a franchise agreement except in specified circumstances. Section 3(4) provided that where at the expiration of a franchise agreement the franchise and the franchisor entered into a new franchise agreement concerning the same subject matter, the new agreement should be taken to be a renewal of the earlier agreement notwithstanding that the provisions of the new agreement might differ from those of the earlier agreement. The BP Multi-Site Franchise Renewal Agreement was a renewed agreement. It constituted a franchise agreement for the term 15 October 2003 to 29 September 2008 entered into by way of renewal of the original franchise agreement from 15 October 1998 to 14 October 2003. 19 In my view the description of the contract in the first notice of termination as a franchise agreement entered into by way of renewal was accurate. It was not a description of a composite agreement that did not exist. 20 The original franchise agreement was dated 26 February 1999. The renewed agreement was undated. The description of the contract in the first notice of termination misstated the date of execution of the original agreement as the commencement of its term. No point was taken with respect to this inaccuracy. In my view there could have been no doubt as to the agreement described. 21 The third basis upon which the plaintiff submitted that the first notice of termination was void was that it did not set out necessary particulars and facts. 22 The PRMF Act, s 16(3)(b) provided that a notice of termination should set out full particulars of the grounds, including a statement of the facts relating to each ground, upon which the termination was based. 23 In Scurr v Brisbane City Council (1973) 133 CLR 242, the High Court considered a statutory provision requiring the Council to cause a public notice to be given by advertisement setting out particulars of the application, where a building or other structure might be erected or used for any purpose on land only with the consent of the Council. At 252 Stephen J said the requirement to set out particulars of the application should be given a meaning consistent with the important role played by the advertisement. Unless adequate particulars were advertised, potential objectors could not comply with the requirement that objections set out the grounds of objection and facts and circumstances relied on in support of those grounds. Furthermore, his Honour pointed out that unless adequate information was contained in the advertisement, not only would effective objection be rendered difficult, but the very need to object might not be sufficiently appreciated. At 254 his Honour said that while the phrase "particulars of the application" had no constant meaning from case to case, instead depending in each instance upon the facts of the particular application in question, the more extensive and elaborate a particular proposal and the greater its likely impact upon local amenity, the greater was the need for particulars. 24 This approach was adopted by Jackson J in Anjac Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 9 FCR 553 at 555 in considering a like provision in s 17A(5) of the PRMF Act. His Honour also referred to Serhan v Ampol Petroleum Ltd (1985) 58 ALR 347 at 360 where McGregor J said that a notice under the former s 17(8) of the PRMF Act needed to be considered in the context of the facts of the particular transaction. His Honour adopted what had been said by Fox J in Hudson v BP Australia Ltd, unreported, FCA, 23 September 1984, with respect to a notice under that provision: "The purpose or principal purpose is, as it seems to me, to give the recipient a full opportunity to investigate and test what is asserted and to decide its course of action accordingly". 25 In Skouloudis v Georges Jet Gas (Aust) Pty Ltd, unreported, FCA, 14 August 1987, Lockhart J said of a termination of a franchise under the PRMF Act that it could only be given by notice expressed with sufficient particularity. 26 In my view the authorities support the proposition that a notice of termination under the PRMF Act must, in terms of s 16(3)(b), set out sufficient particulars of the grounds relied upon, including a statement of the facts relating to each ground, to enable the franchisee to give due consideration to the question whether the franchisee should apply to a court for an order declaring the notice to have had no effect under s 16(4). 27 Section 16(2)(h) of the PRMF Act provided that a franchisor might terminate a franchise agreement on the ground that the franchisee operated marketing premises in a manner likely to cause injury to persons or property. Paragraph 1 of the first notice of termination stated that the plaintiff had operated, and was operating, the premises in a manner likely to cause injury to persons or property, citing s 16(2)(h) and a provision of the renewed agreement. There followed a series of subparagraphs. 28 Paragraph 1.1 was headed "Occupational Health and Safety (Employees)". It alleged that the plaintiff repeatedly and consistently failed to provide a workplace that was safe and without risks to the health of its employees and repeatedly failed to provide a safe system of work and a working environment that was safe and without risks to the health of its employees including the failure to provide personal protection equipment ("PPE") for staff, the absence of first aid equipment, the failure to complete hazard registers and temperature logs, items missing from spill kits and the failure to ensure that all staff had been appropriately trained. 29 There followed particulars. Paragraph (a) referred to the defendant's quality convenience and safe site standards audit review reports ("QCS Reports") undertaken by CPM Australia Pty Ltd and, in particular, but without limitation, to health safety security environment alerts ("HSSE Alerts"). There followed a specification of the dates of such reports with respect to each of the nine service stations operated by the plaintiff. The first reports identified were of 20 June 2003, 9 September 2003 and 4 November 2003 with respect to Burmah AMPM Campbelltown. 30 Following identification of the QCS Reports with respect to the ninth service station, reference was made to an annexure that summarised the HSSE Alerts in each of the QCS Reports. The summary of the first QCS Report with respect to Burmah AMPM Campbelltown stated that temperatures were not recorded at every shift every day and a safety cone or witch's hat was missing from PPE. 31 Paragraph (b) of the particulars made reference to site operation review reports ("Site Op Reports"). There followed a similar identification of the sites and the dates of the reports and a similar annexure summarised each incident in the reports. The summary of the Site Op Report of 6 November 2003 for Burmah AMPM Campbelltown recorded that a hazard register at the back of the HSSE diary had not been utilised, the safety loss inspection checklist had not been completed, a pillow, "floorsorb", gloves and goggles were missing from the spill kit, an intrinsic safety torch was not available on site and staff were using ordinary torches, the temperature logbook was not fully compliant, there was no emergency flip chart on site, the first aid cabinet required restocking and the site manager was taking daily deposits to the bank. 32 Paragraph (c) of the particulars identified reinspection reports of the sites following up the Site Op Reports. Again there was an annexure summarising the content of the reports. The summary with respect to the Burmah AMPM Campbelltown report of 16 December 2003 identified the same deficiencies as in the Site Op Report of 6 November 2003 save that an intrinsic safety torch had been acquired. 33 Paragraph 1.2 of the first notice of termination was headed "Occupational Health and Safety (Customers)". It alleged that repeatedly and consistently the plaintiff had failed to ensure that people other than its employees were not exposed to risks to their health or safety arising from the conduct of the business while they were at the plaintiff's place at work. As particulars of this subheading, the defendant repeated the particulars given under par 1.1. 34 Paragraph 1.3 was headed "Cash in Transit". It alleged that the plaintiff repeatedly and consistently failed to utilise an authorised and licensed security firm to transport cash takings from the premises to a financial institution and had employees transport cash from the premises to financial institutions thereby exposing them to serious personal risks. Particulars referred to emails of September 2001 and September 2003 and a notice of breach of November 2003. 35 Paragraph 1.4 was headed "Training" and alleged that the plaintiff repeatedly and consistently failed to ensure that all staff at the premises were trained in occupational health and safety issues in accordance with the defendant's requirements and timetables. By way of particulars reference was made to MSF training audit results for the periods May/June 2003, July/August 2003 and September/October 2003 and to quarterly performance reviews of the plaintiff for the quarters ended 30 June 2003 and 30 September 2003. 36 Paragraph 1.5 was headed "Preparation and Sale of Food". It alleged that the plaintiff repeatedly and consistently failed to comply with standards relating to the preparation and sale of food products and sold out of date food products. The particulars referred to a notice of breach of January 2002 concerning the plaintiff's storage of sandwiches in non-refrigerated containers, storage of sandwiches in exposed containers, storage of sandwiches adjacent to a sanitation disposal unit and storage of transported sandwiches in an uncontrolled environment. Reference was made to a further notice of breach of February 2003 concerning the presence of mouldy pastries on the pastry trolley in the cool room, the absence of use-by dates on ingredients in the sandwich preparation area, the failure to wash and sanitise condiment containers in the sandwich preparation area, a stench from the sandwich preparation area, large amounts of old food scraps and dead cockroaches under the sandwich preparation bench and spoilt packets of ham and bacon found in the sandwich preparation area. Reference was also made to the closure of "Café Zip" at BP Cabramatta arising from the breach of February 2003. Reference was made to an email from the defendant to the plaintiff of August 2003 concerning the sale of out of date food products and the defendant repeated the particulars in par 1.1 and, in particular, those portions of the QCS Reports and the Site Op Reports dealing with the sale and preparation of food and the maintenance of temperature logs. 37 The PRMF Act, s 16(2)(c)(i) provided that a franchise agreement might be terminated on the ground that the franchisee performed an act, omitted to perform an act, or made a statement, where the act, or omission, or the making of the statement, constituted an offence punishable, in the case of a corporate franchisee, by a fine of $500 or more. 38 Paragraph 2 of the first notice of termination alleged that the plaintiff had performed, and was performing, acts and had omitted to perform, and was omitting to perform, acts that constituted an offence punishable by a fine of $500 or more. Reference was made to the provision of the PRMF Act and to a clause in the renewed agreement. 39 Paragraph 2.1 alleged breaches of the Occupational Health and Safety Act 2000 ("OH&S Act"). Particulars referred to the conduct in par 1.1 to par 1.5 and set out s 8 of the OH&S Act that imposed a duty on employers to ensure the health, safety and welfare at work of all employees and s 12 that imposed a penalty in excess of $500 for a contravention of the duty. 40 Paragraph 2.2 alleged breaches of the Food Act 1989, the Food Regulation 2001 and the Australia New Zealand Food Standards Code. The pattern was similar to par 2.1. Paragraph 1.5 was repeated and relied upon and relevant provisions of the legislation were set out. 41 The PRMF Act, s 16(2)(j) provided that a franchise agreement might be terminated if the franchisee otherwise committed a breach of a provision of the franchise agreement. 42 Paragraph 3 of the first notice of termination alleged that the plaintiff had otherwise committed, and was committing, breaches of the renewed agreement. Reference was made to the above provision and to a clause in the renewed agreed. There followed a series of allegations of breach of specific provisions in the renewed agreement. The first of these allegations in par 3.1 alleged that the plaintiff repeatedly and consistently failed to operate the business and maintain the premises in accordance with the manuals and failed to ensure (as far as possible having regard to the nature of the business) that the health of persons entering the premises was protected, no incident or other problem concerning safety arose and security was adequate to protect persons and property on the premises. Reference was made to clause C5.25. Following the specification of the final alleged breach, particulars repeated and relied upon the conduct referred to in par 1.1 to par 1.5. 43 In par 4 of the first notice of termination the defendant alleged that the repeated breaches of the renewed agreement by the plaintiff evinced an intention not to be bound by its terms. Paragraph 5 asserted that the plaintiff's ongoing conduct was exposing employees and the public to risk of serious harm. Paragraph 6 alleged that the plaintiff's ongoing conduct exposed the defendant and its officers and managers to potential and serious liability under the OH&S Act. By way of particulars the defendant repeated and relied upon the conduct referred to in par 1.1 to par 1.5, set out a provision of renewed agreement whereunder the defendant retained full possession and control over the premises, set out s 10 of the OH&S Act that imposed a duty on a person who had control of premises used by people as place of work to ensure that the premises were safe and without risk to health and s 26 that imposed a liability on directors of a corporation that contravened a provision of the Act. 44 The plaintiff submitted that the first notice of termination failed to provide the required level of specificity because it referred to other documents and did not set out in the notice itself the matter contained in those other documents. It was submitted that a notice that made reference to other documents did not comply with the PRMF Act, s 16(3)(b). 45 I reject that submission. In my view there is nothing in the PRMF Act, s 16(3)(b) that prevents reference to other documents and nothing that requires documents to which reference is made to be annexed to a notice. What is required of a notice of termination is sufficient particularity to bring to the mind of a reasonable franchisee in the position of the franchisee in question, the grounds for termination and a statement of the facts relating to each ground. In an appropriate case, it seems to me that those requirements will be satisfied by reference to documents already in the possession of a franchisee. 46 In the instant circumstances the plaintiff had the additional advantage of the annexures to the first notice of termination that identified the facts relating to the ground in par 1 by summarising the documents to which reference was made. Those were also the facts relating to ground 2, ground 3 and ground 6. Ground 4 and ground 5 were conclusions arising from those facts. 47 In my view the first notice of termination gave the plaintiff a sufficient statement of the grounds and of the facts relating to those grounds to enable it to make an informed decision whether or not to invoke the court's jurisdiction under the PRMF Act, s 16(4). 48 Edy Wongso was the managing director of the plaintiff. Iwan Wongso, his brother, was also a director. They both gave evidence. Neither they nor any site manager of a service station gave evidence that they were in doubt as to the allegations in the first notice of termination. Edy Wongso suggested that he might not have received some of the emails referred to in the notice and that he might not have kept emails received. Even if that were so, the nature of the complaint contained in the emails was summarised in the notice. 49 It was further submitted that any failure to provide full particulars of a ground meant that the notice was bad even if it compiled in other respects with the PRMF Act, s 16(3)(b). 50 I reject that submission. The defendant does not have to establish each ground for termination in order to be entitled to terminate. It is sufficient, in my view, if a franchisor establishes any ground for termination that falls within restrictive list of grounds in the PRMF Act, s 16(2). 51 Section 16(5)(b) of the PRMF Act, enables a court on an application by a franchisee under s 16(4) for an order that a notice of termination has no effect, to declare the notice to have terminated the agreement. Section 16(6) makes it clear that the establishment of one ground in s 16(2) is sufficient for termination. It provided that in any proceeding under s 16(4) the court should not declare a notice to have terminated the franchise agreement unless: "(a) a ground specified in the notice is established by the franchisor to the satisfaction of the court; and (b) the court is satisfied that the termination of the agreement and any related agreement or agreements is just and equitable, having regard to all the circumstances." 52 In my judgment the first notice of termination did not infringe the requirement of particularity in the PRMF Act, s 16(3)(b). 53 The plaintiff submitted that the defendant could not rely upon alleged grounds that occurred prior to 15 October 2003, the commencement date of the renewed agreement, because they could not constitute breaches of that agreement. 54 Cooper J adopted that approach in Guljas. I agree, with respect, in his Honour's conclusion that a breach of an original franchise agreement cannot constitute a breach of a renewed agreement. There is a long line of authority for the proposition that an option for renewal of a lease, when exercised, brings into existence a new demise and the original lease comes to an end (Gerraty v McGavin (1914) 18 CLR 152 at 163, Rider v Ford [1923] 1 Ch 541 at 547). I do not regard the observation of Aickin J in Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 441, that a renewal of a lease connotes a further grant on the same terms save as to commencing date, as detracting from this proposition. His Honour was concerned with what constituted a renewal of a lease as to its duration and its terms. He did not suggest that the new lease did not constitute a separate demise. Indeed, the passage from Gerraty was cited by his Honour with approval. 55 However, the termination notice in Culjas relied solely upon breaches of provisions of the franchise agreement. The first notice of termination in this case relies upon other grounds and the question arises whether a similar approach should be taken to those grounds. 56 In dealing with objections to the affidavits, I ruled that evidence of grounds that preceded the commencement of the term of the new agreement on 15 October 2003 was limited to the just and equitable issue under the PRMF Act, s 16(6)(b) but was inadmissible to prove a breach of the renewed franchise agreement. 57 The PRMF Act, s 16(2)(j) provided that a franchise agreement might be terminated where the franchisee otherwise committed a breach of a provision of the franchise agreement. The defendant submitted that evidence of alleged conduct which preceded the term of the renewed franchise agreement relating to grounds other than that contained in s 16(2)(j) could be admitted because those grounds were not limited to the duration of a franchise agreement. I reserved my decision on that issue and allowed further submissions from counsel. 58 The defendant submits that the provisions in the PRMF Act, s 16(2) other than s 16(2)(j), specify statutory grounds for termination of a franchise agreement that are not limited to breaches of its terms. Section 16(2)(a) concerns the inability of a franchisee by reason of physical or mental incapacity to control the operation of the marketing premises. Section 16(2)(b) concerns a franchisee making a fraudulent misrepresentation in connection with the operation of the marketing premises. Reference has already been made to the commission of an offence punishable by a fine of $500 or more in s 16(2)(c). Section 16(2)(d) relates to a performance or omission to perform an act or the making of a statement by a franchisee constituting a serious contravention of a provision of any law. Section 16(2)(e) applies where a franchisee misrepresents the octane rating of, or wilfully adulterates, motor fuel supplied under the franchise agreement. Section 16(2)(f) applies if a franchisee wilfully passes off motor fuel supplied by a person other than the franchisor or a related corporation without the consent of the franchisor as being the motor fuel supplied by it or a related corporation. Section 16(2)(g) applies where a franchisee fails to operate the marketing premises otherwise than by reason of industrial dispute or an interruption, reduction or cessation of the supply of motor fuel or the compliance by the franchisee with an emergency law. Section 16(2)(ja) applies if the whole or a substantial part of the marketing premises is to be acquired by a public authority under a law relating to compulsory acquisition. Section 16(2)(jb) applies if the sale of motor fuel at the marketing premises is prohibited by a law relating to the use of land. Section 16(2)(k) applies if the whole or a substantial part of the marketing premises is destroyed or damaged to such an extent as to render the operation of the premises impracticable except where the franchisor or a related corporation is responsible for the destruction or damage. 59 None of the specified grounds for termination of a franchise agreement in the PRMF Act, s 16(2) other than s 16(2)(j) relate the ground to the franchise agreement. The franchise agreement is not mentioned in any of them. The statutory bases for termination other than s 16(2)(j) deal with serious situations. Those situations may or may not constitute breaches of the franchise agreement. If it was expected that they would constitute such a breach, there was no need for any provision other than s 16(2)(j). 60 The defendant submitted that it would be against the intention of the legislation to restrict the occurrences constituting specified grounds to those occurring during the currency of a renewed franchise agreement. It was submitted that if a franchisee made a fraudulent misrepresentation in connection with the operation of the marketing premises, the ground specified in the PRMF Act, s 16(2)(b) in the final days of an original franchise agreement that was not discovered by the franchisor until after the commencement of a renewed agreement, an inability to terminate the renewed agreement because the event preceded it, would run counter to the purpose of the legislation to bring an end to a franchisee's rights in the event of the serious happening. 61 The plaintiff responded to the submissions in three ways. First, it was argued that the statute did not render contractual terms as to termination of a franchise agreement redundant and a franchisor had to be entitled to terminate under the contract and under the statute. Secondly, it was submitted that the word "otherwise" in the PRMF Act, s 16(2)(j) meant that each of the other paragraphs of s 16(2) had to constitute a breach of the franchise agreement enabling termination by its terms as well as falling within the terms of the paragraph. If either argument was correct, it followed that events preceding commencement of the term of the renewed franchise agreement could not be relied upon. Thirdly, it was submitted that the statute provided a remedy for such events. Section 17(1) of the PRMF Act provided that a franchisor should not fail or refuse to renew the franchise agreement except on one or more specified grounds. The first ground specified in s 17(1)(a) was the existence of circumstances, or the occurrence of an event, of a kind referred to in s 16(2)(a) to s 16(2)(k). The plaintiff submitted that the franchisor's remedy with respect to prior events was spent once a renewed franchise agreement was entered into. 62 In my view the PRMF Act should not be construed in the way the plaintiff would have it. The purpose of s 16(2) is to prescribe a code for termination of franchise agreements. One item within that code is a breach of a franchise agreement. Other items are specified by reason of the seriousness of their consequences. They should not be restricted to circumstances also giving rise to a right to terminate under the contract. To do so would require, in my view, the interpolation of words and I see no justification for such an interpolation. Where a franchisee makes a fraudulent misrepresentation in connection with the operation of marketing premises, that event is no less serious if it does not constitute a ground for termination of the franchise agreement according to its terms. In my view the legislative intention was to enable termination in those specified serious circumstances whether or not the event gave rise to a contractual right to terminate. 63 I do not regard the PRMF Act, s 16(2)(j) - the franchisee otherwise commits a breach of a provision of the franchise agreement – as restrictive of the other provisions with the subsection. It can be expected that many of those provisions will, coincidentally, constitute a breach of a provision of a franchise agreement. The use of the words "otherwise" recognises this prospect. It should not be interpreted to do more, in my view. 64 Nor do I regard a franchisor's right to refuse to renew a franchise agreement under the PRMF Act, s 17(1)(a) as the sole right available to a franchisor for the occurrence of events falling within s 16(2). To return to the example of the fraudulent misrepresentation made before renewal of a franchise agreement but discovered by the franchisor thereafter, it could not be supposed that all the rights of the franchisor were spent. The gravamen of the entitlement of a franchisor to take action for fraudulent misrepresentation cannot be dependent upon contemporaneous knowledge of the event. It is the seriousness of the incident that entitles the franchisor to act. In my view, the availability of a remedy under s 17(1) does not exclude a franchisor's entitlement to act under s 16(2). 65 It was unnecessary for Cooper J to consider these issues in Guljas because the only ground relied upon in the termination notice was a breach of the franchise agreement in terms of the PRMF Act, s 16(2)(j). I do not regard his Honour as concluding that for all purposes events preceding a renewed franchise agreement cannot be relied upon for termination in terms of s 16(2). 66 The structure of the PRMF Act was to ensure that by original franchise agreements and franchise agreements by renewal, a term of nine years was secured to a franchisee. The structure of the legislation was explained in Ampol Ltd v Calaby Pty Ltd (1991) 30 FCR 426 at 432 as follows: "The principal protective provisions of the Act are ss 3, 16, 17, 17A and 17B. Section 13 prohibits corporations from entering, as franchisors, into franchise agreements the terms of which do not comply with its requirement: s 13(1). Subject to exceptions and conditions which are not material for present purposes, the term of a franchise agreement, whether original or by way of renewal, must be not less than three years: s 13(2) and (3). And in the event that a corporation which is the owner of the relevant premises purports, contrary to the Act, to enter into a franchise agreement for a lesser term, the agreement is not invalidated but its term will be three years: s 13(10)(a)(ii). Section 15 requires a corporation before entry into a franchise agreement to provide to the franchisee a written statement containing information including information specified in the section relating to the operation of the premises. Section 16 sets out the conditions upon which a franchisor may terminate a franchise agreement. Sections 17, 17A and 17B, read together with s 13, provide a legislative scheme under which a person entering into a franchise agreement is entitled to two renewals of that agreement. This has the effect of ensuring to the franchisee a statutory tenure of nine years." 67 In this statutory context that provides for original contract and renewals thereof over a nine year period, there is less call for highlighting the separate and discrete nature of the renewals. Furthermore, attention to the contractual arrangements over that nine year period calls for a consideration of events before and after a discrete original agreement and discrete renewals. These circumstances add weight to the view that the prescriptive grounds of termination of an original agreement or a renewed agreement should not be confined to events occurring during the currency of one of the contracts that forms the continuum. 68 I am of the view, therefore, that the defendant was entitled to rely upon events that preceded the renewed franchise agreement in establishing statutory grounds for termination other than those events specified to ground breaches of the franchise agreement in terms of the PRMF Act, s 16(2)(j). 69 The plaintiff argued that the defendant was not entitled to rely upon incidents that occurred before the commencement of the renewed agreement on a further basis. It was submitted that, with knowledge of the events, the defendant entered into the renewed franchise agreement and thereby elected to waive breaches that occurred before the renewed franchise agreement. 70 I do not see that this argument raises a new issue. If the defendant was confined to its right to refuse to renew the original franchise agreement under the PRMF Act, s 17(1)(a), its entitlement to rely on those events was lost upon entry into the renewed franchise agreement. If, on the other hand, as I have held, the defendant was entitled to rely on past events to ground termination of the renewed franchise agreement under s 16(2), mere entry into the renewed franchise agreement would not constitute an election to waive the defendant's entitlement to terminate the renewed franchise agreement under s 16. 71 I am of the view, therefore, that the plaintiff's arguments with respect to the first notice of termination fail. 72 The defendant served a second notice of termination on 11 March 2004 in identical terms to the first notice, save that the termination date was specified to be 13 April 2004. 73 It is strictly unnecessary for me to consider the plaintiff's argument as to invalidity of this second notice of termination. If I be wrong in my view that clear days were not required in the computation of the dates specified in the first notice of termination, however, I am of the view that the plaintiff's argument that the second notice was invalid on public policy grounds also fails. 74 On 6 February 2004, Campbell J restrained the defendant until the hearing of the matter from treating as valid the first notice of termination. The plaintiff submitted that the second notice of termination was void as an attempt to thwart the court's injunction. I reject that submission. There is no suggestion that the defendant sought to circumvent the court's order by serving the second notice. There was no evidence that it sought to act upon that notice at any stage prior to the hearing of the matter. The fact that the second notice was identical with the first save as to effective date makes it abundantly clear that the purpose of the second notice was to overcome the suggestion of invalidity of the first notice. 75 The plaintiff submitted that the defendant's pressing of both the first termination notice and the second termination notice rendered both to be invalid. It was submitted that the defendant was required to make the notices alternative by their terms or to elect on which it wished to proceed. 76 I reject that submission. The clear inference from the circumstances of the issue of the second notice in identical terms to the first notice save for the date specified for termination is that they were raised in the alternative. The defendant did not resile from its first notice of termination. However, if the plaintiff was correct in its assertion that the date specified in that notice did not comply with the statute, the defendant relied upon the second notice of termination. 77 The BP Express Warwick Farm service station was not included in the renewed franchise agreement. It had been included in the original franchise agreement. 78 As has been pointed out, the PRMF Act, s 17(1) provided, subject to certain conditions, that a franchisor should not fail or refuse to renew a franchise agreement except on specified grounds. Section 17(1)(d)(ii) specified the ground that the franchisor proposed, in good faith and in the normal course of business, to enter into an agreement, or negotiations for an agreement, to dispose of the whole of its interest in the marketing premises to a person other than an associate of the franchisor and not to acquire or reacquire any interest in the premises. Section 17(5) provided that if, before the expiry of a franchise agreement, the franchisor proposed to enter into an agreement or negotiations for an agreement to sell and the franchise agreement was not renewed, its term should be deemed to be extended until the disposition occurred, six months elapsed from the date of expiry of the franchise agreement, or until a time agreed upon between the parties. Section 17(6) provided that, if at the expiration of that period the disposition had not occurred, the franchisor should renew the franchise agreement unless the franchisee consented in writing to its non-renewal. Section 17(2)(a) provided that a franchisor should not enter into an agreement to dispose of its interest in the marketing premises unless the franchisor had first offered the interest to the franchisee or an associate of the franchisee on terms no less favourable than the terms of the proposed disposition. 79 The defendant forwarded a copy of the proposed renewed franchise agreement to the plaintiff under cover of a letter of offer which was accepted by the plaintiff on 31 July 2003. The letter pointed out that there were variations between the proposed renewed agreement and the original agreement. In particular, it was pointed out that BP Express Warwick Farm was not included because the defendant proposed to dispose of its interest. It offered the premises to the plaintiff for purchase on terms and conditions enclosed with the letter. It was stated that if the plaintiff did not accept the offer to purchase and the premises were not disposed of prior to the expiry of the original franchise agreement, the plaintiff would continue to operate BP Express Warwick Farm under the terms of the original agreement and the legislation until its disposal. The letter stated that if the premises had not been disposed of within six months of the expiry of the original franchise agreement, the parties would execute an appropriate deed of variation to have BP Express Warwick Farm included in the renewed franchise agreement. 80 The defendant served a third notice of termination within the six month period following the expiry of the original franchise agreement with respect to a contract described as the original franchise agreement as extended by operation of the letter of offer executed by the plaintiff on 31 July 2003. The third notice was in identical terms to the first and second notices of termination save for the description of the contract and the specified effective date for termination. 81 The plaintiff submitted that the notice was invalid in that it did not specify the BP Express Warwick Farm premises and the letter of offer renewed the franchise agreement with respect to premises other than BP Express Warwick Farm which was specifically deleted from the offer to renew the original franchise agreement. 82 That is so, but the letter of offer had a further effect. BP Express Warwick Farm was offered for sale to the plaintiff and, if not accepted, the statutory holding over for six months was offered and accepted by the plaintiff. In my view, the description of the contract in the third notice of termination was an accurate statement of the statutory holding over under which BP Express Warwick Farm was, at the time the notice was served, conducted by the plaintiff. 83 In my view, none of the plaintiff's submissions with respect to the three notices of termination stand scrutiny, save for the restriction of events to the period of the renewed franchise agreement so far as the ground under the PRMF Act, s 16(2)(j) is concerned with respect to the first and second notices of termination. 84 That basis of challenge does not, in my view, apply to the third notice of termination because the statutory holding over extended the original franchise agreement and did not replace it by a new and discrete agreement. 85 Both the original franchise agreement and the renewed franchise agreement required the plaintiff to operate its business in accordance with manuals it was entitled to vary or add to from time to time. A key manual was the MSF Site Operations Manual. It set out performance duties with respect to quality, convenience and safety. Alleged breaches of these duties were set out in the QCS Reports. It set out detailed duties with respect to health and safety and food safety and staff training and development. Alleged breaches of these duties were set out in the HSSE alerts. It set out duties with respect to customer service standards, site maintenance and food services. It explained the MSF assessment programme, a highly structured set of assessments that included the QCS Reports, the HSSE Alerts and the Site Op Reports. 86 Proof of the events specified in the notices of termination was overwhelming. Indeed, the plaintiff did not seek to assert that they had not occurred. Instead, the plaintiff sought to explain the occurrences with a view to the court not being satisfied that termination of the renewed franchise agreement or the statutory holding over with respect to the BP Express Warwick Farm would not be just and equitable in terms of the PRMF Act, s 16(6)(b). 87 The annexures to the notices of termination contained references to a number of incidents of site managers taking deposits to the bank. Those incidents were established in evidence. The failure of the plaintiff to utilise authorised licensed security firms to transport cash takings to the bank was relied on by the defendant as one set of circumstances establishing the ground that the plaintiff had operated its service stations in a manner likely to cause injury to persons or property in terms of the PRMF Act, s 16(2)(h). 88 In June 2001, Edy Wongso received a new section for the MSF operations manual. It contained the following: "As a minimum, apply the following security measures: … · Staff should never be sent to do banking. … a Cash-in-transit Company must be used for the transportation of all cash from the site to the bank. Only a BP approved Cash-in-transit Company is used for cash collection. All deposit amounts to be reconciled on a daily basis prior to collection by the Cash-in-transit company. Actual collection of money may occur on a less than daily frequency by written arrangement and agreement with BP." 89 Edy Wongso at first said that he first saw this new section when he read the affidavit to which it was annexed. He later recanted. He could not deny receiving it but had no recollection of it. 90 In early July 2001 an email was sent to Edy Wongso stating that the criteria for accreditation were not overly onerous and would go a long way to indemnify the defendant and multi-site franchisees from prosecution should an incident occur during cash in transit. Mr Wongso said he had no recollection of receiving the email, but he must have. 91 Computer records of Linfox Armaguard Pty Ltd were in evidence. They revealed that in the period June to September 2001 that company was providing cash in transit services to only four of the nine sites operated by the plaintiff. It was not suggested that other cash in transit company had been retained by the plaintiff. Those arrangements had been put in place by the plaintiff in May 2001, before the dispatch of the revised security section. Edy Wongso said he knew from 1998 that the defendant required the plaintiff to use a cash in transit organisation to take cash from service stations to the bank. 92 In September 2001, an employee of the defendant responsible for managing the defendant's day to day relationship with the plaintiff became aware of the Armagaurd computer records and had a conversation with Edy Wongso pointing out that the plaintiff was not using Armaguard to collect from all sites and that site managers were transporting cash to the bank. He informed Mr Wongso that the defendant's cash collection policy was not optional and was to be used at each of the sites, two or three visits a week. Mr Wongso said it was too expensive for him to have Armagaurd go to all sites more than once a week. The conversation was followed by an email to Edy Wongso stating that he should ensure that site managers and staff did not take cash to the bank, that this was regarded as a breach the franchise agreement and the defendant would start breaching franchisees who did not comply. 93 Edy Wongso responded to his email stating that he would enforce again the cash in transit policy at all sites. In evidence he said he did not think the defendant required enforcement of the policy, a statement he later retracted. 94 The Armaguard computer records showed that cash in transit services commenced at two other service stations sites in October 2001. Edy Wongso agreed that he ignored the requirement to employ cash in transit services at all sites. He said it was a deliberate decision on his part not to comply. There was a further telephone conversation between Edy Wongso and an employee of the defendant a few days after his email. The employee said she was concerned that he was still not using a cash collection company to transport cash from each of the plaintiff's sites. She said the defendant knew that he was using his site managers to take cash to BP Cabramatta service station. She said it was totally unacceptable and must be stopped immediately. Edy Wongso promised to ensure that Armaguard would collect cash from each of the sites from the following week. That did not occur. 95 The plaintiff submitted that the defendant softened its policy with respect to cash in transit after September 2001. This was because a version of the MSF Site Operations Manual seen by the plaintiff's solicitor in February 2003 and the edition of March 2003, which is still current, had a different version of the requirements: "No staff member should be responsible or required to transport cash to the bank. A cash-in-transit company should be used to transport all cash from the site to the bank. Only a BP approved cash-in-transit company should be used for cash collection." 96 I do not regard the change in verbiage as altering the requirement that cash was to be transported to the bank by an accredited cash in transit company and not by members of staff. The change in verbiage does not justify the conclusion that the defendant left it to the discretion of its franchisees whether they should comply. Nor does it suggest a softening of policy in other respects. 97 Edy Wongso said that he was familiar with an MSF site operations manual but he did not read the manual provided to him by the defendant. He said he relied on the defendant communicating its requirements to him specifically. 98 In September 2003, Edy Wongso received an email from Karen Hubbard, a retail operations manager employed by the defendant, stating that the defendant's cash in transit policy existed to help ensure that franchisees, site managers, site staff and customers were provided with a working environment that was as safe as possible. She informed him that the policy stated that a cash in transit company approved by the defendant was to be used at all times to transport cash and that no staff member should be responsible or required to transport cash. A list of companies that met the accreditation standards was provided. Edy Wongso agreed that the policy was not designed to make life difficult for him but to provide staff with a safe working environment. 99 Ms Hubbard was not called to give evidence. She is resident in England where she works for BP. Her presence was not essential and I refuse to draw any adverse inference in terms of Jones v Dunkel (1959) 101 CLR 298 as I was invited to do. 100 In the period from October to December 2003, Anthony Neil Beaumont carried out site operations reviews at the plaintiff's service station sites. In October 2003, Edy Wongso informed him that Armaguard was collecting cash from the BP Eagle Vale site. That was not so. Armaguard had ceased servicing that site in February 2003. Edy Wongso withdrew his concession that he had told this to Mr Beaumont. He subsequently denied the conversation. Mr Beaumont was not cross examined on this issue. 101 It is clear from Mr Beaumont's Site Op Reports that the plaintiff did not implement the defendant's cash in transit policy. Armaguard picked up takings from BP Warwick Farm until October 2003, from BP Crossroads on 18 December 2003 and from BP Revesby until March 2004. The other sites were not serviced. 102 In forwarding his Site Op Report for BP South Moorebank on 5 November 2003, Mr Beaumont expressed his concern to Edy Wongso of the lack of implementation of the cash in transit policy: "I am concerned about an accredited cash in transit company not yet appointed to the cluster- unnecessary HSSE risk to your staff. This BP Policy must be adhered to." 103 In forwarding subsequent Site Op Reports, Mr Beaumont did not mention the cash in transit policy, reference being made to other deficiencies and, in some cases, plaudits being give for other aspects of performance. It was submitted that the plaintiff was led to believe there had been a softening in the attitude of the defendant to its cash in transit policy. I reject that submission. The Site Op Reports continued to indicate a failure to comply with the policy and it must have been obvious to the plaintiff on receipt of Mr Beaumont's email of 5 November 2003 that the defendant continued to insist upon performance of its policy. 104 On 24 November 2003, Mr Beaumont served a notice of breach of the renewed franchise agreement on Edy Wongso. The notice alleged that from 1 November 2003 onwards the plaintiff was in breach of specified provisions in the franchise agreement by failing to use for the transport of cash at all of the premises a cash in transit company approved by the defendant. 105 Edy Wongso said that in December 2003 he attempted to make arrangements with Armaguard to service other sites. He was told over the telephone that Aramguard was having difficulties in servicing the defendant's own sites and the defendant was negotiating with another carrier. Mr Wongso then contacted a business manager employed by the defendant and was provided with the name of another security company, Security Specialists Australia Pty Ltd. Mr Wongso said that he contacted Peter Hooper from that company who said he had a meeting with the defendant and he would get back to him. He did not. Mr Wongso said he called again in January 2004. Mr Hooper said he would get back to him but did not. Mr Wongso said he spoke with a representative of the defendant who was to provide him with a list of approved cash in transit companies but the notice of termination was then served. 106 Peter Hooper swore an affidavit in which he said he had no record of receiving a telephone call from Edy Wongso. He did not have a conversation with any one at the defendant on the date specified in Mr Wongso's affidavit. He said the defendant was an important client of his and he was accustomed to responding to the defendant or defendant branded service station operators as a matter of urgency. He did not recall ever having received a telephone call or telephone message from Edy Wongso. 107 Mr Hooper was crossed examined on the basis that Edy Wongso might have left a message. He said that might have been so. Little things slipped through but generally not. He persisted with his version of what had happened. He was an impressive witness. 108 If it were necessary for me to resolve this conflict, I would prefer the evidence of Mr Hooper. Edy Wongso's evidence in cross examination revealed many inconsistencies. I formed the view that he was prepared to say anything that he thought might advance his case. He suggested at one stage that one reason for his non-compliance with the defendant's cash in transit policy was that it was safer for his site managers to transport cash. Mr Hooper's testimony of his reaction to telephone calls from defendant branded service station operators, on the other hand, had the air of commercial reality about it. 109 However, by the time Edy Wongso said he made his enquiries of Mr Hooper, a notice of breach had been served on him following persistent notification by the defendant that its policy was not being followed when the plaintiff was required to do. Any contact with Mr Hooper could not alter that position. 110 It was submitted that it was unreasonable of the defendant to require cash collection from the plaintiff's service stations five days a week. Security Specialist Australia Pty Ltd picked up from defendant sites on a twice weekly basis. That company had never picked up from a BP site five days a week. 111 The evidence did not, however, support a defendant requirement of cash pick up from each site five days a week. Edy Wongso had been told he had to do better than one day a week. The MSF Site Operations Manual of March 2003 stated that only small amounts of cash should be kept in the register and excess money and large bills should be dropped in the safe. It stated that regular cash pickups should be ensured and safe drops should be done regularly to keep cash on hand to a minimum. 112 A finding that the defendant has made out the ground that, by failing to implement the defendant's cash in transit policy, the plaintiff operated its premises in a manner likely to cause injury to persons or property in terms of the PRMF Act, s 16(2)(h), will have serious implications for the plaintiff. It was submitted that the standard of persuasion of the omission to enforce the policy should be that discussed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. 113 On that basis I hold the reasonable satisfaction that the plaintiff deliberately failed to implement the defendant's cash in transit policy with the result that it operated its premises in a manner likely to cause injury to persons or property. Furthermore, I am satisfied that the termination of the franchise agreement is just and equitable having regard to all the circumstances in terms of the PRMF Act, s 16(6)(b). The determination of Edy Wongso, notwithstanding his protestations to the contrary, not to implement the cash in transit policy because it was too expensive and, instead, to have the site managers deliver cash to the bank or for pick up at another service station is a strong influence towards that conclusion. 114 I am equally satisfied that the plaintiff failed to carry out staff training in the manner required by the defendant, it failed to ensure that PPE was available to members of staff, that temperature measurements were taken and temperature logs recorded as required and it failed to comply with standards relating to the preparation and sale of food products as particularised in the notices of termination. 115 The defendant's training requirements were highly structured. In February 2002 a compulsory induction training programme was introduced by the defendant to enable franchisees to meet their obligations under the OH&S Act. Section 8(1)(d) required an employer to ensure the health, safety and welfare at work of all employees by providing such information, instruction, training and supervision as might be necessary to ensure the employees' health and safety at work. Clause 13(1) of the Occupational Health and Safety Regulation 2001 ("OH&S Reg") required an employer to ensure that each new employee received induction training that covered arrangements at the place of work for the management of occupational health and safety including arrangements for reporting hazards to management, health and safety procedures at the place of work relevant to the employee including the use and maintenance of risk control measures, how employees could access any health and safety information that the employer was required by the regulation to make available to employees. Clause 171(1)(b) required an employer to retain as a record in a suitable form a record of all induction and other training required by cl 13 to be provided to employees who were likely to be exposed to a hazardous substance at the employer's place of work for at least five years from the date of creation of the record. 116 The defendant's training requirements required each new employee to be provided with a compulsory induction training workbook containing sections to be filled in by the employee and assessments to be filled in by the workplace coach. 117 Iwan Wongso was responsible for training the plaintiff's staff. He attended a training course on how to train staff organised by the defendant. He did not read the defendant's training guide in its entirety and merely skimmed the health and safety section of the MSF Site Operations Manual. 118 The plaintiff produced workbooks for only 56 employees. Of those, 23 had no record of any assessment of employee answers. Employment records indicated that workbooks were not produced for a number of employees. A monthly training report was required to be lodged with the defendant. Reports for May, June, July, September, October, November, December 2003 and January to April 2004 were not produced. 119 Iwan Wongso gave varying explanations for his failure to comply with the defendant's requirements. He said he preferred to test staff with actual tasks on site rather than reading their written answers to questions. He said he had a lot of priorities. He said he did not record assessments because a number of employees had poor English skills. He retracted this explanation when it was pointed out to him that the 23 workbooks that had no record of his assessment contained answers to questions by employees in English. He said he could not explain why he had not completed the assessment with respect to some employees. He said that he carried out an assessment of their answers but he was too busy to write up that assessment. 120 I formed an unfavourable view of Iwan Wongso as a witness. I do not accept his evidence that he trained staff on site. Nor do I accept his evidence that he assessed the workbooks of the 23 employees. It is implausible that he had time to assess answers in the workbook but no time to write up the assessments. I find that Iwan Wongso failed to carry out the duties of training required by the defendant and failed to discharge the plaintiff's obligations under the OH&S Act and the OH&S Reg. 121 The HSSE Alerts and the Site Op Reports, the accuracy of which were not challenged by the plaintiff, indicated persistent health, safety, security and environment infractions. These included out of date products on shelves, a failure to record food temperature tests during each shift, missing PPE, missing intrinsic torches and the use of ordinary torches that might spark, the members of staff, trip hazards, spill kits, console security, fire extinguishers, unsuitable footwear and inappropriate access. 122 The repetition in the reports suggests a general attitude of indifference to compliance with the defendant's health and safety requirements. It was a requirement that site managers carry out monthly quality, convenience and safe site standards audit reports. This was not done. 123 It was a requirement that temperature logs be kept and the temperature taken during each shift be entered in the logs. On one of his site inspections, Mr Beaumont took photographs of temperature logbooks maintained at a number of sites. Those photographs revealed that temperatures had not been entered during a number of shifts. The original temperature logbooks produced to the court showed that someone had entered purported temperatures in the vacant places in the logbooks after they had been photographed. That such falsification of records took place at a number of the plaintiff's sites indicates a lack of understanding of the significance of the temperature logs and a lack of control of the record making process. 124 The plaintiff complained that an HSSE Alert was entered if an item was out of place, albeit that the item was on site. It was explained that fire extinguishers were vandalised if left outside the office at some service stations. Since they were kept in the office and not in the position shown on the site plan, an HSSE Alert was raised. This problem would have been remedied had the plaintiff amended its site plans to locate fire extinguishers within the office. It did not do so. 125 Console doors are meant to be closed for safety reasons. Iwan Wongso accepted that it was bad practice to leave console doors chocked open. Yet this procedure occurred on a number of occasions in full view of those conducting site audits. That such practices occurred indicates a lack of understanding of the safety issues involved and a lack of control and supervision of staff. 126 A random site inspection of the BP Cabramatta site in January 2002 revealed sandwiches stored on the floor of a non refrigerated store room. Temperature readings were above the acceptable range. A notice of breach of condition was served on the plaintiff. In February 2003, a routine site audit of BP Cabramatta revealed in the cool room a baking trolley carrying trays of pastries that had mould growing on their surface. The food preparation area was dismantled to reveal a large amount of old food scraps, dead cockroaches and the strong smell of spoilt food. A further breach notice was served on the plaintiff and Rudy Wongso, another brother of Edy Wongso, was dismissed from his position as site manager. 127 The infractions gave rise to breaches of the OH&S Act, the OH&S Reg, the Food Act 1989 and regulations thereunder, punishable by fines in excess of $500. 128 In my view, the evidence established the grounds set forth in par 1 and par 2 of the notices of termination. 129 It is unnecessary for me to itemise and reject those events that occurred before the renewed franchise agreement that constituted breaches of the original franchise agreement with respect to the service stations other than BP Express Warwick Farm. The evidence revealed that some events occurred during the currency of the renewed franchise agreement with the consequence that the third ground was also established. 130 For the reasons earlier expressed and by reason of the repetition of site infractions and the indifference of the plaintiff to such pattern of repetition, the lack of understanding of staff of the significance of health and safety issues and the lack of control and supervision of them, I am of the view that it is just and equitable that the renewed franchise agreement should be terminated and the original franchise agreement held over with respect to BP Express Warwick Farm should also be terminated. 131 In terms of the PRMF Act, s 16(5)(b) I propose to declare that the first notice of termination terminated the renewed franchise agreement with respect to the service station sites other than BP Express Warwick Farm on 8 February 2004 and that the third notice of termination terminated the held over original franchise agreement with respect to BP Express Warwick Farm on 13 April 2004. I will hear the parties on costs. I direct the parties to bring in short minutes of orders reflecting these reasons. ********** Last Modified: 08/12/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.