1st Fleet Pty Ltd v Australian Cooperative Foods Ltd

CATCHWORDS : CONTRACTS - Formation - Plaintiff and defendant in negotiations concerning contracts for provision of cartage services - Agent of defendant allegedly made representations suggesting contracts had been successfully negotiated - Whether serious question to be tried that parties had concluded binding contracts - Whether serious question to be tried that parties intended to be bound irrespective of absence of writing - ESTOPPEL - Plaintiff and defendant in negotiations concerning contracts for provision of cartage services - Agent of defendant allegedly made representations suggesting contracts had been successfully negotiated - Whether serious question to be tried that defendant estopped from denying that contracts had been made or would be entered into - Plaintiff's claim for interlocutory injunction refused.

LEGISLATION CITED : Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (NSW)

Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 Films Rover International Ltd v Cannon Film Sales Pty Ltd [1986] 3 All ER 772 Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia No. 3 (1998) 195 CLR 1 Magna Alloys & Research Pty Limited v Coffey [1981] VR 23 CASES CITED : Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387 The Commonwealth v Verwayen (1990) 170 CLR 394

1st Fleet Pty Ltd PARTIES : v Australian Cooperative Foods Ltd (t/as Dairy Farmers

COUNSEL : Plaintiff: M B Oakes SC, J A Soars Defendant: T G R Parker SC

SOLICITORS : Plaintiff: Hayden Fowler Corbett Jessop Solicitors Defendant: Allens Arthur Robinson

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4369/06 1st Fleet Pty Ltd v Australian Cooperative Foods Limited (t/as Dairy Farmers) JUDGMENT 1 HIS HONOUR: The plaintiff provides cartage services for the defendant's dairy products. It seeks an interlocutory injunction to restrain the defendant until the final determination of these proceedings, or further order, from acting on what the plaintiff describes as the purported termination of agreements for the carriage of the defendant's dairy products. 2 The defendant says that those agreements will shortly expire. The plaintiff claims that they have been renewed or extended for two years. 3 The issues on the present application are whether there is a serious question to be tried that the agreements have been renewed or extended for two years, or that the defendant is estopped from denying that they have been so renewed or extended, or is estopped from acting contrary to an alleged representation that it would extend those contracts for two years. If so, the question is whether the balance of convenience favours the granting of interlocutory injunctive relief or, to put it another way, it is a matter of determining whether the granting or the withholding of interlocutory relief carries the lower risk of doing an injustice to one party or the other, or to third parties (Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; Films Rover International Ltd v Cannon Film Sales Pty Ltd [1986] 3 All ER 772 at 780-781; Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia No. 3 (1998) 195 CLR 1 at 41-42 [65]-[66]). 4 The apparent strength of the plaintiff's claim for final relief is a relevant consideration in that determination (Magna Alloys & Research Pty Limited v Coffey [1981] VR 23 at 27). 5 However, the Court's task is not to conduct a preliminary trial of the action. It does not seek to resolve conflicts of evidence. The parties have not had the benefit of cross-examination or been able to deploy all other relevant evidence that may be available at a final hearing. The evidence adduced by the defendant is to be taken into account in determining whether on all the evidence the plaintiff has demonstrated that there is a serious question to be tried. That formulation of the question mandates that any conflict between the evidence of the plaintiff's witnesses and the defendant's witnesses is not to be resolved, but rather it is to be assumed that any such conflict would be resolved in the plaintiff's favour (Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 at 724). Distribution Deed 6 On 1 November 2000, the parties entered into an agreement contained in a deed called the NSW Distribution Deed. It covered the distribution of milk throughout New South Wales from the defendant's depots at Lidcombe and five other locations. The milk was to be distributed to seventy-two depots throughout New South Wales and the Australian Capital Territory. The agreement was for a term of five years commencing on 25 November 2000. 7 Clause 23.2 provided: "No amendment to this deed shall be binding on the parties unless in writing signed by the parties." 8 The agreement contemplated that it might be renewed for a further term of five years at the election of the defendant. Such an election was to be made in writing (clause 4.3). 9 Clause 4.4 provided: "In the event 1st Fleet (the plaintiff) continues to transport the Dairy Farmers Products to some or of all of the Depots at the expiration of the Term or the Further Term with the approval of Dairy Farmers, (the defendant) such continuation shall be strictly on a month to month basis and under the terms and conditions of this Deed."

Master Transport Agreement 10 In March 2002, the parties entered into an agreement for the distribution of yoghurts, cheeses and similar dairy products throughout regional New South Wales. This agreement was called the Master Transport Agreement. It commenced on 4 March 2002 and was due to expire on 30 October 2005. 11 Clause 12.2 of that agreement provided: " The parties may only amend this Agreement if each party signs the written amendment. " 12 Clause 2.2 provided: "If the Contractor continues to provide the Services with Dairy Farmers' consent following expiry of the term (otherwise than pursuant to the entry into a further written agreement), the Contractor shall do so on the same terms and conditions as are contained in this Agreement except that either party may bring such arrangement to an end upon giving the other party 90 days' written notice expiring at any time." Request for Proposals

13 Prior to the expiry of these agreements the defendant called for tenders for the provision of cartage services. In anticipation of the delays expected to arise from a consideration of the tenders, the term of the distribution deed and the master transport agreement was extended to 29 January 2006. 14 On 28 November 2005, the plaintiff confirmed that it intended to participate in the defendant's tender. It signed a form "Expression Of Interest Acknowledgment Form, Confirmation To Participate". It thereby agreed to the following: "... you agree on behalf of your company as follows: (a) If your company is not selected in the final solution to be a service provider, your company will continue to provide the services on the same terms and conditions as your company is currently providing the services until the earlier of completion of the migration to the replacement service provider and 6 months from the announcement of the replacement service provider."

15 The defendant's Request for Proposal stated that its target date for notifying the successful suppliers was 1 March 2006. The conditions for the tender included the following: "Unless Dairy Farmers expressly agrees otherwise, of the tender price of any other Tenderer (sic) : (a) (No Acceptance Until Formal Acceptance) no proposal shall be taken to be accepted until a "Notice of Acceptance of Tender" signed by Dairy Farmers has been given to the Tenderer or Dairy Farmers has formally executed the Services Agreement; … (c) (Execution of Services Agreement) if it has not previously done so, the successful Tenderer shall execute and return to Dairy Farmers a formal contract for the supply of the Services within fourteen (14) days of Dairy Farmers providing the same for execution; and (d) (Agreement Until Formal Execution) without affecting the successful Tenderer's obligations under the last preceding subclause after the formal acceptance of a proposal, until a contract for the supply of the Services has been formally executed by the parties, Dairy Farmers shall not be bound to a contract for the carrying out of the supply of the Services. " 16 The defendant also provided a draft logistic services agreement setting out the terms of the agreement which it proposed to enter into with successful tenderers. The draft bore a note in the following terms: "Note to tenderers: This draft agreement is submitted to tenderers to enable tenderers to provide proposals based on this agreement. Australian Co-operative Foods Limited ("ACF") will not have any obligations in respect of this agreement and the agreement will not be binding on ACF unless and until ACF signs the agreement. "

17 The defendant responded to the request for proposal on 25 January 2006. It submitted rates at which it was prepared to supply certain of the services put out for tender. It continued to provide the services under the New South Wales Distribution Agreement and the Master Transport Agreement. Meeting of 23 May 2006 18 The plaintiff was not notified by 1 March 2006 whether its tender had been successful. On 27 February 2006, the defendant advised that it expected to be in a position to announce details of the new arrangements in early April. On 5 April 2006, it advised that it expected to be able to announce the results of one component of the tender in early May 2006. 19 On 23 May 2006, a meeting was held between three officers of the plaintiff, Messrs Brown, White and Wissell, and Mr Barry Nikas of the defendant. Mr Nikas is the defendant's national logistics manager. The plaintiff says that it was at this meeting that an agreement was made for the extension of the existing agreements for two years. 20 According to Mr Wissell, a conversation to the following effect took place: "Barry Nikas 'Dairy Farmers are offering 1st Fleet 2 years at Lidcombe and Wetherill Park at the original tender rates'. Stephen Brown 'What happened to the 5 years in the tender'. Barry Nikas 'Dairy Farmers has revisited its thinking and is not going to take the tender any further. 2 years is all that is on offer.' Stephen Brown 'In the tender the rates were held firm for 2 years'. Barry Nikas 'Yes but we are offering the 2 years at the original tendered rates.' Evan Wissell 'Is it possible to get 3 years?' Stephen Brown 'Most of our equipment is less than 3 years old and another 3 years would aid in a full recovery of the investment in the equipment.' Barry Nikas 'I don't know whether that's possible or not but I will forward the request to Gordon Buxton.' [Gordon Buxton is the General Manager, Supply Chain, for Dairy Farmers] Stephen Brown 'If 2 years is all that's on offer that's acceptable to 1st Fleet. We would prefer 3 years for the reasons stated.' Barry Nikas 'Great, I'll come back to you about 3 years.' " 21 Mr Brown deposed that during the course of the meeting he had a conversation with Mr Nikas to the following effect: " Barry Nikas 'We have operational improvements to make so Dairy Farmers only wants to offer 1st Fleet a 2 year contract for NSW.' Stephen Brown 'That's fabulous mate, thanks very much. Barry, we have a lot of equipment, is it possible that we could look at 3 years because of our current high capital costs, trucks under lease etc.? However, if you can't do that we are happy with the 2 years. What rates will apply?' Barry Nikas 'The tender rates.' Stephen Brown 'That's fine.' Barry Nikas 'I'll come back to you on the 3 year bit.' " 22 The plaintiff says that the effect of these conversations was that the parties orally agreed to extend the terms of the existing distribution agreement and master transport agreement for two years at the rates submitted by the plaintiff in response to the request for tender for new agreements. 23 Mr Nikas disputed that a conversation occurred to the effect deposed to. However, for the purposes of considering whether there is a serious question to be tried that the plaintiff is entitled to the final relief it seeks, I proceed on the assumption that the evidence of Mr Brown and Mr Wissell, taken at the highest from the plaintiff's perspective, will be accepted at a final hearing. 24 I turn then to the question whether it is seriously arguable that the parties made a contract at the 23 May meeting.

Contractual Claim 25 Two questions arise in relation to this. The first is whether it is seriously arguable that the parties had agreed on the terms of the contract at that meeting, as distinct from their still being in negotiation. If yes, the second question is whether it is seriously arguable that the parties intended to be immediately bound by those terms notwithstanding that there was no signed written agreement. 26 If the parties were discussing a new contract to be entered into pursuant to the request to submit proposals, it is clear that, objectively considered, they did not intend to enter into such a contract by way of oral discussion. The tender documents were explicit that no new contract would come into existence except pursuant to signed written contracts. 27 However, it was submitted for the plaintiff that there was a serious question to be tried that the parties had simply agreed that they would extend the existing contracts for two years on the new tendered rates. Reliance was placed upon the evidence of Mr Wissell that Mr Nikas had said that Dairy Farmers, that is, the defendant, was not going to take the tender any further. 28 Nonetheless, it is noteworthy that none of the plaintiff's witnesses say there was any express reference to extending the terms of the existing contracts. The question which then arises is what were to be the terms of the new two year contracts. Were they to be on the same terms as the old contracts modified only by the new tender rates which the plaintiff had submitted, and thereby incorporating the new services for which the tender had been submitted? On the other hand, were they to be on the terms of the proposed new agreements? 29 Even on the plaintiff's evidence, that question was not expressly resolved, although it might be implied from Mr Nikas' statement that the defendant was not going to take the tender further, that the new contracts were to be on the terms of the old contracts, subject to those modifications. 30 However, if the terms of the old contracts were to continue, then, what was proposed were amendments to the existing contracts, by substituting new rates and a new term. There would also be the addition of new services to be included under the existing contracts. However, those contracts provide that no amendment of them will be effective unless the amendment is made in writing and signed by the parties. 31 The question of whether the parties intended to be bound by terms to which they had agreed is a question to be determined objectively by what they have said and done. The question is not what they subjectively intended, but whether reasonable persons would regard them as bound by what they said and did having regard to the surrounding circumstances known to them, the subject matter of the contract and the purpose and object of the transaction (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40]; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]; Australian Broadcasting Commission v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 459-550). 32 Here, the parties expressly stipulated how they intended to be bound by agreed terms. In the case of amendments to the existing agreements, they would be bound only by signed writing. In the case of a new agreement entered into pursuant to the tender process, the defendant also stipulated that it would be bound only by a signed written contract. 33 This is not surprising. The parties had operated under detailed signed contracts. The amounts involved in the contracts are substantial. Annual revenues earned by the plaintiff to 30 June 2006, under the two agreements, exceeds $18,000,000. 34 Even if the parties had agreed on terms at the meeting on 23 May 2006, the evidence adduced on this application clearly points to their not having intended that they would be bound by those terms until a written and signed agreement was entered into. 35 The evidence of Messrs Brown and Wissell of the meeting of 23 May 2006 also points to the parties still being in negotiation as to whether the term being offered was two years or three years. Events After 23 May 2006 36 Events after 23 May 2006 also point to the parties either not having finally agreed upon terms at that time, or not intending that they would be bound by what had then been agreed. 37 On 9 June 2006, the plaintiff, through its General Manager, Commercial Development, Mr White, sent an email to the defendant. In it Mr White said: "(1) The RFP rates were submitted based on 19/12/05 fuel costs at that point and this would need to be amended accordingly to reflect the current market.

(3) The RFP rates submitted were based on the stated five (5) year agreement offered, any alteration to this will require further discussion.

(4) Due to the delay in finalisation we may require a cost movement in addition to the fuel component."

38 On 27 June 2006, Mr White advised the defendant of an upward movement in the plaintiff's costs of certain indices. He said: "I trust you will find this cost movement acceptable and on receipt of your confirmation, the new rate file will be provided." 39 It appears that these rates related to the rates for the NSW Regional Lanes (Milk) for distribution from the week commencing 3 July 2006. The defendant said that it would respond formally by 17 July 2006. 40 On 17 July, Mr White wrote again saying: "Barry, Would you please indicate by responding to this email the following (1) You intend to accept our rate increase effective 3/7/06 Or (2) You wish to implement the RFP rates and accept the term as offered in the RFP document. As you verbally informed us we have retained the NSW distribution that we currently do from Lidcombe and Wetherill Park, my concerns about the lack of communication from you are somewhat lessened although we anguish that the RFP process has not been officially finalised allowing us both to go forward with cost reduction plans and Effective distribution. " 41 Like the email of 9 June 2006, the email of 17 July 2006 is not consistent with the parties having contractually agreed to an extension of the existing contracts for two years, but on the rates in the plaintiff's RFP document. The implementation of the RFP rates is said to depend on the defendant's election. It is also said the defendant could only elect to implement those rates if it accepted the term of five years. 42 On 19 July 2006, the plaintiff was told that the defendant did not propose to use its services after 1 September 2006 and that Linfox would get the work. This was confirmed on 3 August 2006. 43 I accept that there is a serious question to be tried that a representation was made to the plaintiff on 23 May 2006 that the plaintiff would be offered a two-year contract at the tendered rates. However, it is not seriously arguable that, objectively considered, the parties intended to be immediately contractually bound by what was discussed at that meeting. All of the evidence on the application points to the parties only intending to be contractually bound on the signing of formal contracts. The evidence also suggests that the plaintiff did not consider that a binding contract had come into existence on 23 May 2006, as there was later continued bargaining on rates. Estoppel 44 In a letter dated 7 August 2006, the plaintiff's solicitors contended that at the meeting of 23 May 2006 Mr Nikas had made representations that:

(a) Dairy Farmers would not be taking the tender process further and would not be looking to enter into a contract for a period of five years as indicated in its tender documents;

(b) that 1st Fleet would continue to provide the services to Dairy Farmers provided it was at the revised rates contained in the 1st Fleet proposal; and

(c) the term of the new arrangement would be two years. 45 The plaintiff's solicitor contended that in reliance on those representations:

(a) since 23 May 2006 the plaintiff has continued to supply the Services;

(b) it took steps to ensure that it would be in a position to continue to utilise its trucking fleet to meet Dairy Farmers' needs and continued to maintain and proceeded to refinance its trucking fleet to ensure that it could continue to supply the Services and to meet Dairy Farmers' needs for the extended two year term; and

(c) 1st Fleet did not pursue other possible opportunities for utilising its trucking fleet. 46 The plaintiff submitted that the defendant is estopped from "resiling from its representations". However, the plaintiff needs to go further. It needs to show that it is seriously arguable that the defendant is estopped from denying that a contract was made at the meeting of 23 May 2006, or that it is estopped from denying that a contract would be entered into for a term of two years at the revised rates contained in the plaintiff's tender proposal, and otherwise on the terms of either the existing agreements or the agreement put forward in the tender process. 47 For such a claim to be tenable, the plaintiff would have to show, at a minimum, that it adopted the assumption that such a contract had been entered into, or would be entered into, and that it would be unconscionable for the defendant to depart from the assumption which it induced the plaintiff to adopt. Given my conclusion that it is not seriously arguable that a contract was entered into in the course of the meeting on 23 May 2006, it is also not seriously arguable that the defendant is estopped from departing from the assumption the plaintiff adopted on the ground that the plaintiff was induced to adopt the assumption by the defendant's representations at that meeting. Something more would be required for the claim to be seriously arguable. 48 In the circumstances of this case, for such a claim to be seriously arguable, the plaintiff would have to show, at a minimum, that the defendant knew it proposed to take such steps in reliance on the assumption that such a contract had been, or would be, entered into. Its silence in failing to correct the assumption would then, arguably, make it unconscionable for it to depart from the assumption it knew the plaintiff had adopted (Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387 at 406, 429; Verwayen v The Commonwealth (1990) 170 CLR 394 at 444). 49 There is no evidence that the defendant knew that the plaintiff was continuing to supply services in reliance on an assumption that the plaintiff had entered into a two-year contract with the defendant, or that the defendant would enter into such a contract with it. 50 Indeed, by signing the expression of interest document, the plaintiff was obliged to continue to provide such services until the completion of the migration to a replacement service provider, or for six months from the announcement of the replacement service provider. In other words, the continued provision of services was not an act of detrimental reliance on the alleged representations, as it was something which the plaintiff was contractually obliged to do. 51 There is no evidence about what the plaintiff has done in relation to refinancing its fleet, or as to what opportunities it has forgone in the expectation of being able to provide services to the defendant for a further two years. It is required to continue to provide services to the defendant up to the expiry of the first of the periods stated in paragraph (a) of the Expression of Interest document. Nor is there evidence that the defendant knew that whatever the plaintiff did, or abstained from doing, in these respects, was in reliance on an assumption that a new contract had been entered into, or that the defendant would enter into such a new contract for two years. 52 For these reasons I do not consider that the plaintiff has demonstrated a serious question to be tried that it is entitled to final relief based on principles of estoppel of a kind which could support an interlocutory injunction. Misleading and Deceptive Conduct 53 The plaintiff also submitted that it was seriously arguable that the defendant engaged in misleading and deceptive conduct by making the alleged representations at the meeting of 23 May 2006. Its summons claims damages and unspecified orders under section 80 or section 87 of the Trade Practices Act 1974 (Cth) in respect of an alleged contravention of section 52 of the Trade Practices Act. It also claims relief under equivalent sections of the Fair Trading Act 1987 (NSW). 54 If the claim for misleading and deceptive conduct is made good, the plaintiff will be entitled to damages to compensate it for the loss suffered by such conduct. That could extend to any loss suffered by reason of action taken by the plaintiff, or which it abstained from taking, in reliance on the alleged representation that it would be offered a two-year contract at the tendered rates. Prima facie that would include loss suffered by its having refinanced its fleet, or which it suffered by abstaining from taking up other opportunities to utilise that fleet because it expected to have a two-year contract with the defendant. 55 However, I see no basis on which the plaintiff, through this cause of action, could compel the defendant to extend the term of the existing contracts. To do so would go beyond compensating the plaintiff for loss sustained by the alleged misrepresentations to making good the plaintiff's expectation, even though the defendant had no contractual obligation to do so. 56 For these reasons, I do not consider that the plaintiff has demonstrated a serious question to be tried that it is entitled to final relief other than damages. Balance of Convenience 57 Had I had to consider the balance of convenience, I would have found that balance fairly even. I will address it briefly in case I am wrong in my conclusion that the plaintiff has not demonstrated a serious question to be tried sufficient to support the claim for interlocutory injunctive relief. 58 If an injunction is refused, but at a final hearing the plaintiff succeeds in establishing the contract which it asserts, then the plaintiff will be entitled to damages for the lost profit it would otherwise have earned under the contract. The calculation of lost revenue should not be difficult, as it will be known what services Linfox has carried out under its contract for which the plaintiff tendered. Having regard to the plaintiff's experience in providing the same type of services to date, there should not be great difficulty in quantifying the expenses it would have incurred in deriving that income. 59 The plaintiff's difficulty will be that it may have to dispose of part of its fleet which it cannot deploy elsewhere. It is likely that some of the sixty employees who currently service the Dairy Farmers' business will be made redundant. 60 I doubt that the loss suffered by the plaintiff as a result of its having to dispose of its specialised trucking fleet would be a recoverable head of damage for breach of contract, unless the plaintiff receives less than it would have received if it disposed of the fleet after providing services under an extended two year term. In any event, any such loss should also be quantifiable. 61 There is likely to be hardship to some of the plaintiff's employees. On the other hand, it can be expected that Linfox will be required to employ staff to provide services which the plaintiff would otherwise provide. The result of granting an interlocutory injunction would be that Linfox would not get that work. It is likely that persons who would otherwise be employed by Linfox would not be offered employment. There is evidence that Linfox has offered, or will offer, employment to 22 or 23 of the plaintiff's employees for the Dairy Farmers' work. 62 There is also hearsay evidence that Linfox has placed an order for the purchase of trailers and prime movers for the Dairy Farmers' work in New South Wales. 63 From the defendant's perspective the rates offered by Linfox are substantially cheaper than those offered by the plaintiff. On the other hand, if an interlocutory injunction were granted, but then discharged after a final hearing, the plaintiff could readily quantify those extra costs and could recover them pursuant to the plaintiff's undertaking as to damages. 64 When the position of all the affected parties, including third parties, is considered, it seems to me that the balance of convenience does not substantially point one way rather than the other. In those circumstances the weakness of the plaintiff's case that there is a contract in existence for a two-year term, or that the defendant is estopped from denying such a contract, points to the refusal of the interlocutory relief. Scope of Any Relief 65 It is unnecessary to consider the appropriate scope of any interlocutory relief. I would only say this. Had I been minded to grant such relief, it would have been on the basis that the Distribution Deed requires the defendant to provide to the plaintiff all of the carriage of Dairy Farmers' products authorised to be collected from the Distribution Centres and transported to Depots (as defined). On the other hand, the Master Transport Agreement provides for exclusivity only in relation to the route specified in Schedule 5 to that agreement and not to other Services which the parties might agree in writing, from time to time, should be provided, unless the parties also agree that such Services should be included in Schedule 5. This would have affected the scope of the interlocutory relief, had the plaintiff otherwise been entitled to it. However, on the view I have taken, it is not necessary to pursue this question further. 66 For these reasons, I order that except to the extent that orders have been made to date pursuant to the plaintiff's notice of motion filed on 21 August 2006, that notice of motion be dismissed with costs. 67 The exhibits may be returned after 28 days. 68 I stand over the proceedings to the Registrar's list at 9.30am on Friday, 8 September 2006.

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