FEDERAL COURT OF AUSTRALIA

AA Shi Pty Ltd v Avbar Pty Ltd (No 3) [2010] FCA 440

Upon the applicant and David Yahalom giving:

1.                  The usual undertaking as to damages; and

2.                  The undertakings set out in paragraph 6 of the affidavit of David Yahalom sworn 28 April 2010; and

3.                  Undertakings to permit the respondents to:

(a)               conduct monthly spot checks;

(b)               of each of the service stations identified in Order 2 hereof (“the service stations”);

(c)               no more than once per calendar month per service station;

(d)               by a person adequately qualified to undertake such spot checks;

(e)               between the hours of 9.30 am and 12.00 pm;

(f)                 with a minimum of disruption to staff at the particular service station site; and

(g)               by a person who must, prior to commencing the spot check, identify themselves to the manager on duty at the relevant service station; and

4.                  Undertakings to permit the respondents to:

(a)               visit each of the service station sites;

(b)               no more than once per week per service station;

(c)               with a minimum of disruption to staff at the particular service station site;

(d)               at which visits the respondents may observe the whole of the service station site; and

(e)               test the equipment thereon;

(f)                 provided that upon such visits the respondents may not test the cash registers, safes and gas storage equipment on the site; and

(g)               that any testing of the petrol bowsers be conducted by an appropriately qualified person (save to the extent that qualifications are not necessary for the testing being carried out); and

(h)               that the person performing such visits on behalf of the respondents identify themselves to the manager on duty at the relevant service station, prior to the visit commencing; and

Upon the respondents giving:

1.                  An undertaking that they will provide to the applicant a written report as to the findings of any spot checks they conduct within five (5) working days of the day on which the spot check is conducted.

THE COURT ORDERS THAT:

1.                  Until the trial of this proceeding or further order of this Honourable Court, each of the first and second respondents be restrained whether by itself, its agents or howsoever otherwise from:

(a)                entering upon; or

(b)               causing or procuring any other person to enter upon:

                                                (i)                      235 Flemington Road, North Melbourne, Victoria; or

                                              (ii)                      2282 Cunningham Highway, Yamanto, Queensland; or

                                             (iii)                      414 Warrego Highway, Hatton Vale, Queensland; or

                                            (iv)                      655 Deception Bay Road, Deception Bay, Queensland;

other than as is necessary to conduct the spot checks and visits permitted by the undertakings given by the applicant and David Yahalom set out above.

2.                  Until the trial of this proceeding or further order of this Honourable Court, each of the first and second respondents be restrained whether by itself, its agents or howsoever otherwise from acting upon or implementing the following purported notices of termination of agreements between the applicant and the first and second respondents:

(a)                notice dated 12 April 2010 from the first respondent to the applicant, in respect of the “Oz Fuel” service station located at 2282 Cunningham Highway, Yamanto in the State of Queensland;

(b)               notice dated 12 April 2010 from the first respondent to the applicant, in respect of the “Oz Fuel” service station located at 235 Flemington Road, North Melbourne in the State of Victoria;

(c)                notice dated 12 April 2010 from the first respondent to the applicant, in respect of the “Oz Fuel” service station located at 4114 Warrego Highway, Hatton Vale in the State of Queensland;

(d)               notice dated 12 April 2010 from the second respondent to the applicant, in respect of the “Liberty” service station located at 655 Deception Bay Road, Deception Bay in the State of Queensland.

3.                  The costs of and incidental to the application are reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     The orthodox approach in relation to costs following judgment is that costs follow the event. As a general proposition an unsuccessful party needs to demonstrate a case justifying why this approach should not be adopted in individual circumstances. In this case, the applicant has been successful in obtaining interlocutory relief. It follows that as a general proposition the applicant should be entitled to its costs. Mr Dunning SC for the respondents has asked that I vary my order awarding costs to the applicant because in the case of the interlocutory relief courts commonly order that costs be either reserved or be in the proceedings. In Mr Dunning SC’s submission, the rationale for the second form of order is that if the respondents are in the final analysis successful, their position is vindicated and it is at the very least arguable that the interlocutory relief obtained ought not to have been granted at all.

2                     I am not so confident that this is the position. The fact is that in respect of an application for interlocutory relief the principles explained by the High Court in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 are considered and applied. Was there a serious question to be tried and where did the balance of convenience lie? In this case, I was satisfied that there were serious questions to be tried as submitted by the applicant and that the balance of convenience favoured the applicant. Very different questions arise in relation to determination of the substantive relief sought in this matter. It raises separate issues for argument and judgment. Mr O’Donnell QC for the applicant has submitted that the interlocutory relief in this case was disputed and that the matter has no “unique features” which would mean anything other than costs following the event.

3                     Nonetheless, I consider that there is some merit in the submission of Mr Dunning SC that costs be reserved at this stage. I take this view because:

(a)               I am persuaded that the court would have a more complete understanding of the matter and where costs should lie across the proceeding when the substantive issues are determined;

(b)               the applicant specifically sought costs in respect of the interlocutory relief in its application. Although the respondents were at liberty to make submissions as to costs at the hearing, they did not do so. Nevertheless, at the end of the day, I consider that the respondents should not be denied an opportunity to make submissions as to costs following the delivery of judgment or an opportunity to ask the court to vary its order as to costs at that point;

(c)               Finally, I take the view that the respondent’s dispute of the interlocutory relief sought was not without merit in the sense that reasonable grounds and arguments were advanced by the respondents in contesting the application.

4                     It follows that I am prepared to vary the costs order I have made and order that costs of and incidental to the application for interlocutory relief be reserved.

Associate:

Dated:         10 May 2010