Ampol Petroleum (Q'land) Pty Ltd v Guazzo & Ors [1993] QSC 156

() C) __ / (_ IN THE SUPREME COURT OF QUEENSLAND No. 321 of 1993 Brisbane Before Mr. Justice Ambrose [Ampol Petroleum (Q'land) PL v. Guazzo & Ors] BETWEEN: AND: AND: AND: AND: AND: AMPOL PETROLEUM (Q'LAND) PTY. LTD. (Plaintiff) ROBERT GUAZZO (First Defendant) LAVEINE MARY GUAZZO (Second Defendant) ERIC STEVEN 'POPPI (Third Defendant) HELEN GLENDA POPPI (Fourth Defendant) MICHAEL DILLON (Third Party) REASONS FOR JUDGMENT - B. W. AMBROSE J. Judgment delivered 20th May 1993 Counsel: A.B. Crowe for Ui:e: Plaintiff/Applicant. P. Sacre for the Defendant/Respondent. Solicitors: Bennett & Philp for the Plaintiff/Applicant. Mcinnes Wilson & Jensen t/a for Wilson Ryan & Grose for the Defendant/Respondent. Hearing date: 17th May 1993. -- 1 of 8 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: No. 321 of 1993 AMPOL PETROLEUM (Q'LAND) PTY. LTD. (Plaintiff) AND: ROBERT GUAZZO (First Defendant) () AND: () () ( ) LAVEINE MARY GUAZZO (Second Defendant) ERIC STEVEN POPPI (Third Defendant) AND: HELEN GLENDA POPPI (Fourth Defendant) MICHAEL DILLON (Third Party) REASONS FOR JUDGMENT - B. W. AMBROSE J. Judgment delivered 20th May 1993. This is an application by the plaintiff pursuant to R.S.C. 0. 64 r. 1A and 1B for a declaration that: Two agreements between the plaintiff and the defendants do not, whether read separately or together, constitute a "franchise agreement" within -- 2 of 8 -- 2 the meaning of s . 3 ( i) and 6 ( i ) of the Petroleum Retail Marketing Franchise Act 1980 (Cth) and for consequential orders relating to matters pleaded in the defences of the defendants in answer to the plaintiff's claims for relief for alleged breaches of one of those agreements. The plaintiff is a supplier of motor fuel. The defendants are: i) "Purchasers" under a "Dealer Owned Retail Site Agreement" between the plaintiff as "company" and the defendants as "purchaser" made on 6th June 1991. ii) "Users" under a "Trade Mark Licence Agreement" between the plaintiff "Ampol" and the defendants dated 1st April 1991. . . : The plaintiff commenced action against the defendants by . ; writ of summons issued 2nd March 1993; in its statement of claim delivered ·in that action, damages are claimed against the defendants for breach of the agreement of 6th June·1991. Ih the defence of the first and second defendants delivered on 21st April 1993, it is pleaded that s. 11(3) of the Petroleum Retail Marketing Franchise Act 1980 applies because of the nature of the agreement upon which the plaintiff sues. In the defe.nce of the third and fourth defendants, it is alleged that ·the agreement upon.which the plaintiff sues is a "franchise agreement" .within the meaning of that term used in the Act to which I have referred. It is the contention of· the· plaintiff that the agreement upon which it sues the defendants, .. whether read with the agreement of. 1 s.t· April 1991 (to which the. defendants do not refer 0 0 0 0 -- 3 of 8 -- () c) 3 in their defences) or whether read alone, does not on its face and upon the facts which are not really in dispute, come within the term "franchise agreement" within the meaning of that term as defined in s. 3 of the Petroleum Retail Marketing Franchise Act 1980. Under s. 3 of that Act, "franchise agreement" is defined as follows: "'franchise agreement' means an agreement containing - (a) provisions, whether express or implied, under or by virtue of which a corporation (in this Act referred to as the 'franchiser') authorizes,permits or requires aiperson, being another party to the agreement (in this Act referred to as the 'franchisee'), to use, in connection with the retail sale of motor fuel by that person at thepremises to which the agreement relates, a mark identifying, commonly associated with, or controlled by, that· corporation or a related corporation; (b) provisions, whether express or implied, under or by virtue of which a corporation (in this Act referred to as the 'franchiser') grants a rightto, or otherwise authorizes or permits, a person, being another party to the agreement (in this Act referred to as the 'franchisee' ) , to possess, occupy or use the premises to which the agreement relates· in connection with the retail.. sale of motor fuel by that person at those premises; or (c) provisions, whether express or implied, under or by virtue of which ~ (i) a corporation (in this Act referred toas the 'franchiser') is accustomed, entitled or required to supply motor fuel to a person, being another party to the agreement (in this Act referred to as the 'franchisee'), for retailsale by that person at. the premises to which the agreement relates; or (ii) a person (in this Act referred to as the 'franchisee' ) agrees with a corporation (in this Act referred to as the· '·franchiser' ) to acquire motor fuelfrom another person . (whether a party to the agreement or riot) for retail sale -- 4 of 8 -- 4 by the first-menti'oned person at the premises to which the agreement relates." It is contended on behalf of the plaintiff that the agreement of 6th June 1991 does not contain provisions to the effect of those dealt with in (b) of the definition of franchise agreement. On the other hand, it is contended for the defendants that that agreement does contain provisions to that effect. The application was argued on the basis that if the plaintiff's contention is correct then various parts of the defences delivered in this action, ought be struck out. On the other hand, if the defendants' contention be accepted, their defences will stand. The point is a short one. It is clear upon the material that the plaintiff has no title or interest, either direct or indirect, in the premises in Ingham to which the agreement in issue refers. The defendants however contend that, in spite of that fact, c 0 0 the agreement, nevertheless on its face, grants a right to the ~, defendants to use the premises specified in the agreement for the purpose of selling petroleum products which the plaintiff supplies to them in those premises. In my view the agreement is more accurately described as one which envisages ··the defendants ·selling petroleum products supplied by the plaintiff from the premises specified in the agreement. Assuming·the agreement does contemplate the sale of ,., . the petroleum products by the defendants with the plaintiff's permission from the specified premises, that does not in my view -- 5 of 8 -- 5 have the effect of the plaintiff permitting the defendants to possess, occupy or use those premises in connection with the retail sale of motor fuel by those defendants at those premises. The agreement has nothing to do with the defendants possession, occupancy or use of the premises specified in it; it only contemplates their sale of the motor fuel supplied by the plaintiff from those premises. The agreement assumes that the defendants possess, occupy or use the premises specified and is c-) made upon that assumption. It does not itself purport to grant to the defendants a right to use those premises because it () (J expressly acknowledges in the first recital to the agreement that the defendants are entitled to possession of the premises "independently of" the plaintiff. : I, The fact that the agreement contemplates the sale of motor :' ; fuel from those premises does not in my view lead to the conclusion that it authorizes the possession, occupancy or use of those premises in connection with the retail sale of the motor fuel it supplies. The agreement in issue is headed "Dealer Owned Retail Site Agreement". In cl. 10(f) of the agreement (the interpretation clause) it is provided: " (f) "Reseller" means a person or corporation which purchasers products from th~ dompany for retail sale at services station premises; and includes persons orcorporations which have entered into franchiseagreements or dealer owned retail site agreements with the company." While no doubt the character of the agreement must be decided by the effect of its provisions, it is comforting to note that the terms of the agreement clearly indicate, or at least -- 6 of 8 -- 6 acknowledge, two categories of agreement into one of which the agreement in issue in this application is said to fall. While there can be little doubt from the terms of the agreement that the plaintiff agreed to supply to the defendants petroleum products at "the premises" referred to in the agreement situated at 1 Herbert Street, Ingham in the State of Queensland, it is clear on its face, that Ampol had nothing whatever to do with the defendants "possessing, occupying or using" those premises. Indeed, the recitals to the agreement state: "Whereas the purchaser is entitled to possession independently of the company of property situated at 1 Herbert Street, Ingham in the State of Queensland (hereinafter called "the premises"). " "Whereas the company and the purchaser have mutually agreed to enter into this agreement for the purpose of promoting the sales of:· the company's petroleum products and inter alia facilitating the operation of the purchasers' business at the premises." · Reference to the trade mark ·'licence agreement executed C) 0 between the plaintiff and the·· defendants on 1st April 1991 0 confirms the inference that the "Dealer Owned Retail Site Agreement" of 6th June 1991 does not come within the definition (-~ .. of franchise agreement under s. · 3 of the Act. Under cl. 1 of the \___) trade mark licence agreement it is provided: "1. Ampol hereby grants a licence to the use and the user is hereby entitled to·use the marks in respect of the sale of petroleum products supplied by Ampol or a supplier nominated by Ampol to the .. user at premises occupied and used by the user for such period." Clause 5 of that trade mark licence agreement then provides: . : ,, "5. In addition to any rights of termination at law Ampol may terminate this agreement forthwith upon commission by the user of a breach of any condition of this agreement · or any agreement relating to the granting of a licence by Ampol to the user to occupy ' and use premises for the ~purpose of the sale of Ampol' s petroleum products or an agreement between -- 7 of 8 -- 7 Ampol and the user in relation to the supply of Ampol's petroleum products at the aforesaid premises; or any agreement between Ampol and the user pursuant to the Petroleum Retail Marketing Act 1990." There are two types of agreement referred to in cl. 5. One "relating to the granting of a licence by Ampol ... to occupy and use premises for the purpose of the sale of Ampol's petroleum products" and the other, "an agreement ... in relation to the supply of Ampol's petroleum products at the aforesaid premises". There is nothing to be found in the agreement of 6th June 1991 to suggest that the plaintiff was connected in any way with the rights of the defendants to occupy and use the premises at c~ 1 Herbert Street, Ingham for the purpose of sale of the plaintiff's products. In fact, the first recital to that agreement is quite inconsistent with the existence of any such connection. I declare that the agreement headed "Dealer Owned Retail Site Agreement" between the plaintiff and the defendants bearing~-··. I, ) 11 11 '-j date 6th June 1991 is not a franchise agreement within the meaning of s. 3 of the Petroleum Retail Marketing Franchise Act ( i 1980. "-... ... In the light of the declaration made, I order that para. 5 of the defence of the first and second defendants be struck out. I also direct that paras. 2, 3, 4 and the second sentence in para. 8 of the defence of the third and fourth defendants be struck out. I will hear submissions from the parties to the application with respect to costs. -- 8 of 8 --