Federal Court of Australia

United Petroleum Pty Ltd v Bomma [2026] FCA 1055

ORDERS

THE COURT ORDERS THAT:

1. The applicant’s interlocutory application dated 8 April 2026 for leave to file a further amended originating application and a further amended statement of claim is dismissed.

2. The applicant’s amended statement of claim is struck out.

3. The respondents’ interlocutory application dated 10 April 2026 is otherwise adjourned to a date to be fixed.

4. By 4.00 pm 11 August 2026 the solicitors for the parties are to confer in relation to the future of this proceeding.

5. Any further application by the applicant for leave to file a further amended originating application and a further amended statement of claim shall be filed by 4.00 pm on 25 August 2026.

6. Any further application by the applicant as provided for in order 5 above must be supported by –

(a) an outline of submissions not exceeding five pages in 12 point font and 1.5 spacing; and

(b) one or more affidavits deposing to the basis of the applicant’s proposed claims and which annexes –

(i) a copy of the draft further amended originating application and further amended statement of claim;

(ii) a certificate signed by a partner of the applicant’s firm of solicitors which certifies that the factual and legal material available to the partner provides a proper basis for each allegation and claim for relief in the proposed pleading and originating application.

7. If the applicant does not file a further application for leave to amend by the time stipulated in order 5 above, then the proceeding shall stand dismissed with costs.

8. The applicant pay the respondents’ costs of its interlocutory application dated 8 April 2026.

9. The applicant pay the respondents’ costs to date of their interlocutory application dated 10 April 2026.

10. The further case management of this proceeding otherwise be stood over to a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

1 This proceeding has languished under the weight of the applicant’s unsuccessful attempts to plead a viable case. As I remarked at the hearing, the matter has the appearance of a set of allegations in search of a cause of action.

2 These reasons concern the applicant’s interlocutory application for leave to file a further amended statement of claim and a further amended originating application, and the respondents’ cross application to strike out the applicant’s amended statement of claim and for summary dismissal of the applicant’s claims.

3 During the course of the hearing of the interlocutory applications, the issues narrowed considerably. After the luncheon adjournment the applicant (United) accepted that the amended statement of claim should be struck out and did not press its application to file a further amended statement of claim in the form then before the Court. Were it not for this concession, I would likely have entertained striking out much if not all of the existing claim and disallowing the proposed further amended statement of claim and proposed further amended originating application.

4 The residual issues are therefore whether United should be given another opportunity to plead any, and if so which, of its claims, and if not whether summary judgment should be given in favour of the respondents. United submitted that it had at least a “germ of a case” that it should be permitted to replead: see Takemoto v Moody’s Investors Service Pty Ltd [2014] FCA 1081 at [89] (Flick J). The respondents maintained, with some force, their application for summary dismissal.

5 It is very tempting to make an order that will bring an end to this proceeding. If one sees that an applicant’s lawyers are experiencing extreme difficulty in formulating with clarity and particularity their client’s causes of action, then that is often a very good indication that there is no cause of action: see Trau v University of Sydney (1989) 34 IR 466 at 475 (Gleeson CJ, Mahoney JA and Priestley JA agreeing). The history of the present matter creates the strong impression that such a problem exists.

6 For the reasons that follow, I will not give United leave to replead at this point. However, I will give United an opportunity to make an interlocutory application to replead, based on proper material. My reasons for declining to give summary judgment at this point are that this is the first occasion on which the respondents have challenged the applicant’s pleadings. In relation to whether United has suffered any actual damage – which is an issue that troubles me – although the respondents maintained in correspondence that the pleadings are deficient, they did not seek further and better particulars in circumstances where particulars were foreshadowed in the pleadings, and United has not been called upon to furnish any affidavit evidence on an interlocutory application that would support its claim of damage. Further, the respondents did not apply to strike out the amended statement of claim when it was amended without leave on 6 November 2024, and the respondents did not apply to strike out the applicant’s reply to their defence, which took the unusual course of pleading fresh causes of action. I am not persuaded to take the extreme course of shutting United out of pleading any viable cause of action that is properly available to it when this is the first occasion on which its pleadings have been challenged in Court.

Factual allegations

7 The following account is based upon the underlying factual allegations that were made by the applicant in its pleadings together with some of the contractual documents that were in evidence on the interlocutory applications.

8 United conducts a business of selling fuel and other products through a network of service stations across Australia. About 400 of its service stations are operated by third parties under agreements titled “Commission Agency Agreement”. Under one such agreement entered into in 2018 United appointed the second respondent (Reliance) as its agent to receive, store and sell motor spirit and other products which United consigned to the agent from a United service station in Cairns. For that purpose, Reliance was given a licence to enter and occupy the premises during the term of the agreement. Although Reliance was referred to in the agreement as an “agent”, the terms of the agency were circumscribed by detailed provisions in the agreement. The first respondent (Mr Bomma) guaranteed Reliance’s performance of the Cairns agreement. United alleges that it terminated its agreement with Reliance on 24 February 2024 with immediate effect.

9 United advanced allegations about the conduct of Mr Bomma towards other United agents, which are disputed by the respondents. The allegations fall into three categories.

10 The first category of allegations is that Mr Bomma made demands for money and the transfer to him of a shareholding interest from individuals associated with the agent for the United service station at San Remo in Victoria. One of the demands was alleged to be an oral demand to pay Mr Bomma $6,000 in cash each month in exchange for assistance in passing audits conducted by United from time to time. Another allegation was that Mr Bomma threatened to increase the rent payable by the agent to United and to reduce the amount of fuel commission payable to the agent if his demands were not met. Other threats were alleged to have been made to employees working at the San Remo premises. United did not particularise its allegation of threats to the employees. For their part, the respondents claimed that Mr Bomma entered into a verbal loan and investment agreement under which Mr Bomma, or friends or family of Mr Bomma, advanced moneys to the agent appointed to the San Remo service station and that the communications relied on by United related to the loan and investment agreement.

11 The second category is a claim that Mr Bomma directed the United manager for Tasmania to attend the Claremont service station and conduct a site visit during which the manager communicated a demand that a sum of money be paid to Mr Bomma, or the manager, or another employee, and that if the demands were not met the Claremont agency agreement would be terminated. These allegations are disputed by the respondents. The pleadings of both sides in relation to the underlying facts concerning the Claremont agency lack precision.

12 The third category of claims commenced with the following somewhat vague allegation in paragraph 30A of the proposed further amended statement of claim which United no longer presses –

30A.     Bomma and/or Reliance had an interest in, association with or influence over the commission agents for the following United service station sites that was not authorised by, or otherwise disclosed to, United:

a.    San Remo;

b.    Claremont;

c.    Mornington;

d.    Geelong Central;

e.    Gheringhap;

f.    Camperdown;

g.    Pooraka;

h.    Vasse; and

i.    Woree.

13 United alleged that these matters were to be inferred from the fact that Mr Bomma on his own behalf or on behalf of Reliance had made and received payments from persons alleged to be associated with the relevant agents. The alleged payments were the subject of the draft further amended statement of claim.

The claimed causes of action

14 Previous versions of United’s pleadings featured prominently and at length claims of misuse of confidential information, but these claims have now been abandoned.

15 United alleged one contractual cause of action against Reliance and Mr Bomma. At [51AD] and [51AE] of the proposed further amended statement of claim United alleged that by reason of all the matters that it had pleaded at [19] to [30A], being the factual allegations summarised above, Reliance and Mr Bomma were in breach of their obligation “to act in a proper and safe manner” in the performance of obligations under the Cairns agreement. It is far from clear how the subject matter of United’s claims could relate to the performance of obligations under the Cairns agreement, and it is far from clear how Mr Bomma could be liable for any such breaches as a principal when he was a guarantor. A real question arises as to whether there is a proper basis for these claims and the applicant did not advance any submissions at the hearing to suggest that there is.

16 In a rolled-up way United alleged at [34] to [36] of its proposed further amended statement of claim the following causes of action in relation to all the conduct that was pleaded –

(a) breaches by Reliance of a claimed equitable duty to act in good faith and in the best interests of United; and

(b) breaches by Mr Bomma of claimed fiduciary duties to United.

17 Given that United accepted that the amended statement of claim should be struck out, and that it has abandoned its draft further amended statement of claim, it is not necessary that I pass comment on how these equitable obligations could arise within the contractual relationship that existed between United and Reliance in relation to the Cairns service station, and where Mr Bomma’s relationship with United was as guarantor of Reliance’s obligations. The applicant did not make any submissions during the hearing to suggest that there was a “germ of a case” in relation to the existence and claimed breaches of equitable and fiduciary duties that had been alleged and which it accepted had to be struck out.

18 United alleged at [39] of its proposed further amended statement of claim that in making representations that he had the ability to assist the San Remo agent in passing audits and that he had the ability to increase the amount of rent payable to United and to reduce the amount of fuel commission payable, Mr Bomma engaged in conduct that was misleading or deceptive in contravention of the Australian Consumer Law (ACL), being Sch 2 to the Competition and Consumer Act 2010 (Cth). United alleged at [39A] of its proposed further amended statement of claim that by failing to notify United that Mr Bomma or Reliance had an unauthorised or undisclosed interest in, association with or influence over service station sites Mr Bomma engaged in conduct in trade or commerce that was misleading or deceptive in contravention of s 18 of the ACL. The particulars under [39A] appeared to be an attempt to plead an obligation to disclose, but they were opaque and did not appear to support the claim. This was the only claim of contravention of the ACL where it was alleged that the conduct was directed to United. United also alleged at [40] to [42] that in making the representations to the agent of the San Remo service station Mr Bomma had engaged in conduct in trade or commerce that was in all the circumstances unconscionable in contravention of s 21 of the ACL.

19 At [42AA] to [42AB] of the proposed further amended statement of claim United sought to introduce a claim of contravention of s 21 of the ACL against Mr Bomma in relation to the representations alleged to have been made by the United manager to the agent of the Claremont service station. There is a lack of correspondence between the representations that United alleged at [30] of the proposed further amended statement of claim and the claim of unconscionable conduct at [42AA].

20 At [42A] to [51AB] of the proposed further amended statement of claim United endeavoured to make claims of inducing breach of contract against Mr Bomma. There are two features of the tort of inducing breach of contract that are important here. The first is that the gravamen of the tort is intention. It is necessary to establish an intention on the part of the alleged tortfeasor to induce a breach of contract: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd [1995] FCA 481; 58 FCR 26 at 42 to 44 (Lindgren J).

21 Rule 16.43 of the Federal Court Rules 2011 (Cth) requires that a party must state in the pleading particulars of the facts on which the party relies to support an allegation concerning a condition of the mind. In relation to the claimed breaches of contract by the various agents that United alleged were induced, United appeared to make conclusory allegations of breaches of the agency agreements without pleading any particular terms that were breached, still less was there any clear pleading that Mr Bomma intended to induce a breach of those terms. Consequently, it is far from clear what obligations were alleged to have been breached, save that there are repeated references to the agents being prohibited from acting in a manner that was inconsistent with the terms of the agreements. This begs the question. In relation to the allegation that Mr Bomma knew of the existence of these obscure contractual terms, United alleged that this arose from Mr Bomma’s understanding of the standard contractual relationship between United and its agents, which he acquired by establishing the Cairns store. However, as the respondents pointed out, the two agency agreements that were in evidence, being the agreements for the Cairns and Camperdown service stations, had different terms. For example, clause 38 of the Camperdown agreement, which United alleged was breached on inducement by the respondents, did not appear in the Cairns agreement.

22 The second important feature of the tort of inducing breach of contract is that it is not actionable per se, and that it is necessary to plead and prove actual damage. United’s claim that it suffered damage is scant. In relation to each claim of interference United alleged that it had suffered loss “being a disruption to its business”. No particulars were given. A corporation can only suffer financial loss. Actual damage to a corporation must sound in some sort of financial loss which United has not pleaded.

The relief claimed by United

23 United alleged at [52] of the proposed further amended statement of claim that it suffered its “disruption to business” by reason of the conduct of Mr Bomma and Reliance with “further” particulars to be provided after evidence. In a Delphic plea at [53] of the proposed further amended statement of claim, United alleged that by “injuring or harming the business of the commission agents engaged by United, United had suffered loss”, with particulars to be provided after discovery and the return of subpoenas.

24 By its proposed further amended originating application United sought the following relief –

A.    Damages;

B.    Equitable compensation;

C. Injunctions permanently restraining Bomma the First and Reliance Second Respondents from using the United Confidential Information;

D.    A declaration that the First and Second Respondents contravened the prohibition against misleading or deceptive conduct in s 18 of the Australian Consumer Law;

E.    An order directing the First and Second Respondents return any funds received by reason of the contravention of s 18 of the Australian Consumer Law, pursuant to s 243 of the Australian Consumer Law;

F.    Injunctions permanently restraining the First and Second Respondents from obtaining any direct or indirect interest, or having any association, with any United service station, including any commission agent licensed to operate under the United business;

G.    Interest;

H.    Costs; and

I.    Such further or other order as the Court deems fit.

25 As to the pecuniary relief sought, the state of United’s proposed pleadings brings into question whether there is any proper basis for it to bring claims for inducing breach of contract, and whether there is otherwise any proper basis for it to seek pecuniary relief in relation to its claimed causes of action for breaches of alleged equitable obligations and contravention of the ACL. As for the declaration sought, while in theory United might have standing to seek a declaration of contravention of the ACL (Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11; 200 CLR 591), courts generally show a reluctance to run up dry gullies. That is especially so when regard is had to court resources and the other considerations that inform the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). On its face, the relief sought by United in paragraph E of the prayer for relief appears to be a nonsense: to whom are the funds to be returned? And at the hearing of the interlocutory applications, United accepted that there was no cause of action that supported permanent injunctions.

Decision

26 The above observations lead me to conclude that on the material before the Court United should not have leave to replead. Rather –

(a) I will dismiss United’s interlocutory application for leave to file its proposed further amended statement of claim and further amended originating application;

(b) I will strike out the amended statement of claim; and

(c) I will otherwise adjourn the respondents’ application for summary judgment for further hearing.

27 If United wishes to have leave to file another statement of claim, then it will have to seek leave to do so. To have any prospects, the application for leave will have to be accompanied by –

(a) a draft pleading and further amended originating application;

(b) a certificate that is signed by a partner of United’s solicitors certifying that there is a proper legal and factual basis for the proposed claims;

(c) one or more affidavits in support of the application that depose to the existence of facts that would support the proposed claims; and

(d) an outline of submissions in support of the application.

28 In relation to the affidavits, it is not enough merely to annexe correspondence passing between solicitors; that will unlikely be of assistance to the Court. Given the history of this matter any affidavit would have to address the factual basis for any allegations that United seeks to advance. The issues before the Court will then be whether this proceeding has any proper basis, whether it has any utility, and whether in the exercise of its discretion the Court should allow it to proceed having regard to the overarching purpose. This last consideration brings into focus issues of resources and proportionality. Questions may in due course arise in relation to the quantum of United’s claim and whether the Court’s discretion as to costs in r 40.08 is engaged. Further, “an applicant seeking leave to amend has an independent obligation to satisfy the Court that leave should be granted, irrespective of the position that the respondent takes. That is, even if the respondent does not oppose an application for leave to amend, such leave will not automatically be granted. The person seeking to amend must come to the Court with sufficient material and submissions to persuade the Court that leave should be granted”: Media Ocean Limited v Optus Mobile Pty Limited (No 6) [2009] FCA 1319 at [34] (Jagot J).

Associate:

Dated:    4 August 2026