Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd and anor

CITATION : Gough & Gilmour Holdings Pty Ltd and ors v Caterpillar of Australia Ltd and anor (No. 9) [2001] NSWIRComm 260 FIRST APPLICANT Gough & Gilmour Holdings Pty Ltd

SECOND APPLICANT Harcourt David Gough

PARTIES : THIRD APPLICANT Anthony Lansley Gilmour

FIRST RESPONDENT Caterpillar of Australia Ltd

SECOND RESPONDENT Caterpillar Inc. FILE NUMBER: IRC 5227 of 2000 CORAM: Boland J Unfair Contract - Interlocutory proceedings - Whether jurisdiction to order interim injunctive relief - Applicability of equity law principles under s 106 of the Industrial Relations Act 1996 - Promissory estoppel - Specific performance - Whether question of law should be decided at interlocutory stage - Commercial contract - Whether serious question to be tried - Balance of convenience - Application for interim relief granted. CATCHWORDS : Practice and Procedure - Power of Industrial Relations Commission of New South Wales in Court Session to grant interlocutory relief under s 106 of the Industrial Relations Act 1996 LEGISLATION CITED : Industrial Relations Act 1996 Trade Practices Act 1974 (Cth) Agro Holdings Ltd v Flexi-Coil (Australia) Pty Ltd (unreported, Nicholson J, 26 November 1999, [1999] FCA 1658) American Cyanamid Co v Ethicon Ltd [1975] AC 396 Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 Barclays Australia Investment Services Ltd v Nordby (1995) 99 IR 258 Barclay Mowlem Construction Ltd v Simon Engineering (Australia) Pty Ltd (1991) 23 NSWLR 451 Bowker v Prophecy Technologies Pty Ltd (unreported, Marks J, 26 May 1999 Brigitte Lipman v AG Lifestyle Management Pty Limited [2001] NSWIRComm 115 Brown v Rezitis (1970) 127 CLR 157 Canberra Star Motors Pty Ltd v Chrysler Jeep Automotive Distributors Australia Pty Ltd [1999] NSWIRComm 310 Canizales v Microsoft Corporation (2000) 99 IR 426 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Cardile v LED Builders Pty Limited (1998) 198 CLR494 Cocker v Tempest (1841) 7 MW 502 Collison v Hewston [2001] 103 IR 403 Cooper v Sithe Energies Australia Pty Limited [2000] NSWIRComm 132 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 Darvall v NZI Securities Australia Ltd (1990) 21 NSWLR 36, (1990) 39 IR 215 Dataforce Pty Ltd v Brambles Holdings Ltd (1988) VR 771 Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 Dickins v Gibb Nominee Services Pty Ltd (1991) 43 IR 276 Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (unreported, Finkelstein J, 2 July 1999, [1999] FCA 903) Gough & Gilmour Holdings Pty Ltd and Ors v Caterpillar of Australia Ltd [2001] NSWIRComm 92 Grassby v The Queen (1989) 168 CLR 1 Henville v Walker [2001] HCA 52 Harcourt Brace & Co (Australia) Pty Limited v Cory (1998) 81 IR 321 CASES CITED : Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545 Heavener v Loomes (1924) 34 CLR 306 Jackson v Sterling Industries Limited (1987) 162 CLR 612 Kenoss Contractors Pty Limited v Allied Constructions Pty Limited (2001) 104 IR 66 Kurt Keller Pty Ltd v BMW Australia Ltd (1984) 1 NSWLR 353 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Loupos v Basa (1995) 62 IR 397 Maharaj v 7-Eleven Stores Pty Ltd (unreported,Peterson J, 4 April 1997)) Maiden v New Zealand Natural Pty Ltd (unreported, Hungerford J, 20 June 1997) Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 New South Wales v Health and Research Employees' Association of New South Wales (unreported, NSW Industrial Relations Commission, 31 March 1993) Parsons v Martin (1984) 5 FCR 235 Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 Patrick Stevedores Operations (No.2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Port Macquarie Golf Club v Stead (1996) 64 IR 53 Reich v Client Server Professionals of Australia Pty Limited (Administrator Appointed) (2000) 99 IR 69 Sanderson Motors (Sales) Pty Ltd v Yorkstar Motors Pty Ltd [1983] 1 NSWLR 513 Scanruby v Caltex [2001] NSWIRComm 8 Sea Acres Rainforest Centre Pty Limited v The State of New South Wales [2001] NSWIRComm 207 Stevenson v Barham (1977) 136 CLR 190 Starkey v Mitchforce Pty Ltd [2000] NSWIRComm 216 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Teletech International Pty Limited v Medical Benefits Fund of Australia (No.3) (unreported, Peterson J, 30 November 1998) Transport Workers' Union of Australia, NSW Branch & Ors v Boral Resources (NSW) Pty Ltd (unreported, Peterson J, 3 December 1992) Walker v Industrial Court of New South Wales (1994) 53 IR 121 Wheeler v Selbon Pty Ltd t/as Parklands Nursery [1984] 1 NSWLR 555, (1984) 7 IR 383 Zakrzewski v Rodgers (2001) 106 IR 1 HEARING DATES: 09/27/2001; 09/28/2001; 10/02/2001 DATE OF JUDGMENT: 10/23/2001

APPLICANTS Mr M J Kimber S.C. with Mr I Taylor and Mr A B Gotting of counsel Solicitor: Mr J Robinson Harmers Workplace Lawyers LEGAL REPRESENTATIVES: RESPONDENTS Mr P M Hall Q.C. with Mr W.T. Houghton Q.C. and Mr M Connock of counsel Solicitor: Mr A Gooch Mallesons Stephen Jaques

JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J 23 October, 2001 Matter No IRC 5227 of 2000 Gough & Gilmour Holdings Pty Limited & ors v Caterpillar of Australia Limited & ANOR Application under s 106 of the Industrial Relations Act 1996 Interlocutory Judgment No. 9

1 The applicants in the substantive proceedings operate a large dealership in New South Wales and the Australian Capital Territory that sells and services machinery and equipment under the well-known Caterpillar brand name. Mr Gough, the second applicant, owns 90 per cent of the shares in Gough & Gilmour Holdings Pty Ltd ("the first applicant"), whilst Mr Gilmour, the third applicant, owns 10 per cent. The dealership operates under three core agreements between the applicants and Caterpillar of Australia Limited ("the first respondent"), namely a sales and service agreement, a distribution agreement and a product support agreement ("the dealership agreements"). Caterpillar Inc., the second respondent, is the parent company of the first respondent.

2 In early 1989 the second and third applicants applied for and were successful in obtaining approval from the respondents to conduct the Caterpillar dealership in NSW and the ACT. Subsequently, the second and third applicants purchased the shares of Waugh & Josephson Pty Ltd who, at the time, held the dealership. Mr Gough and Mr Gilmour have operated the business ever since. The business employs over 800 employees and sales revenue for 2000 was $360,280,000.

3 On 8 June 1999 the managing director of the first respondent advised the second applicant that the relationship between the parties was over and that the second applicant should sell his shares in the business. The second applicant did not wish to sell his interests in the business and said that he only agreed to do so on the basis of an assurance that the sale would be conducted on an amicable and reasonable basis without duress and would provide an opportunity for the second and third applicants to receive a fair value for the shares; that the first respondent would assist the applicants to achieve such an outcome; and, by implication, that if no agreement for a sale at fair value could be reached the applicants would retain the dealership. In December 1999 the first respondent nominated a potential purchaser for the first applicant's assets and goodwill that it was prepared to appoint as the new dealer for NSW and the ACT, namely, Westrac Equipment Pty Limited, which operates the Caterpillar dealership in Western Australia.

4 From about December 1999 to September 2000 the second and third applicants reluctantly conducted negotiations with Westrac for the sale of their shares in the first applicant. The negotiations were unsuccessful and Westrac terminated the negotiations in September 2000.

5 On 26 October 2000 the first respondent served notices upon the first applicant giving 90 days' notice of the termination of the dealership agreements.

6 On 27 October 2000 the applicants filed a summons for relief under ss 106 and 107 of the Industrial Relations Act 1996. That summons was amended and in its final form is the third further amended summons filed in the proceedings. On the same day, the applicants moved by way of notice of motion for urgent interlocutory relief on an ex parte basis. Orders were made providing limited interlocutory relief to the applicants to the effect that the first respondent was to refrain from informing, advising or otherwise communicating to any person that the respondent had given or intended to give notice to terminate the dealership agreements.

7 The notice of motion seeking interlocutory relief came back before the Court on 10 November 2000 for hearing on an inter partes basis when the Court was informed that the parties had reached an agreed position in relation to the issues raised in the notice of motion. The agreed position included an undertaking by the first respondent that the effective termination date to terminate the dealership agreements would be extended to 25 October 2001. Subsequently, directions were issued in relation to the preparation and conduct of the case and dates were set for hearing.

8 In accordance with a further interlocutory judgment issued on 23 November 2000 it was determined that the applicants' summons for relief would be heard in two parts. The first part would address the alleged unfairness of the contracts between the first applicant and the first respondent and whether they should be varied in the terms sought. The second part would deal with issues of compensation but only in the event that unfairness had been found and the primary relief sought, that is variation of the contracts, was refused.

9 The proceedings have thus far consumed 37 hearing days and there have been eight substantial interlocutory issues that the Court has been required to determine. There are a further 18 hearing days scheduled, the last of these being 11 February 2002. It should be noted that in Gough & Gilmour Holdings Pty Ltd and Ors v Caterpillar of Australia Ltd [2001] NSWIRComm 92, Caterpillar Inc. was joined as the second respondent.

10 With the date of 25 October 2001 drawing closer, and it being obvious the proceedings would not be completed by that date, the parties conferred privately as to an extension of the termination date. No agreement was reached.

11 On 27 September 2001 the applicants filed a notice of motion in Court the substantive effect of which, if granted, would be to further postpone the termination date of the dealership agreements until the applicants' application under ss 106 and 107 had been heard and determined and in that period to prevent the respondents taking any steps inconsistent with or prejudicial to the ongoing operation of the dealership. The respondents strongly opposed the orders sought in the notice of motion.

12 Importantly, in their third further amended summons for relief, the applicants sought relief at two alternative levels. The primary relief sought was continuation of the dealership agreements, albeit with substantial variations. In summary, the applicants seek to insert provisions in the agreements that:

1. Require the first respondent to disclose the particulars of any complaints or concerns that they may have about the applicants' performance in the dealership or about any other matter of relevance to whether the relationship should continue or be terminated; 2) Will then provide the applicants with an opportunity to consider, answer and where appropriate rectify identified shortcomings or otherwise meet the first respondent's legitimate concerns and thereby facilitate the continuation of the relationship; 3) Provide for a suitable dispute resolution procedure (involving third parties) to operate in the event that the parties do not agree that the first respondent has a legitimate concern(s) and/or cannot agree as to how the matter(s) need to be addressed or rectified; 4) Provide that any notice of termination cannot be given until all the above steps have been exhausted and then ensure that any notice period is reasonable in all the circumstances; 5) Will enable the applicants to have a fair and reasonable opportunity to sell the business into the market or, failing that, to have a respondent acquire the business for fair value as a buyer of last resort.

13 The alternative relief sought by the applicants in the event the agreements are varied by the Court but not in the manner sought by the applicants, is compensation.

14 The implication of not granting the injunctive relief sought by the applicants is that the dealership agreements will terminate on 25 October 2001. If the respondents were successful in respect of their proposition contended in opposition to the granting of injunctive relief, that there is no serious question to be tried because there is no unfairness in the contracts between the first applicant and first respondent, it would mean the end of any prospect of the applicants achieving the final relief they seek in these proceedings.

15 The applicants' claims for final relief have been strongly opposed by the respondents. This was also the case with the motion to further postpone the termination date of the dealership agreements until the applicants' claims had been heard and determined. The issues raised by the notice of motion are as follows:

1. Whether the Commission in Court Session has jurisdiction to make the orders sought by the applicants in their notice of motion; 2) Whether the Commission in Court Session should exercise power to make the orders sought; 3) Whether there was a serious question to be tried; 4) Whether the Commission in Court Session should exercise its discretion in the applicants' favour having regard to the balance of convenience and other discretionary factors.

Jurisdiction 16 The first issue that arises for consideration is whether it is within the jurisdiction of the Commission in Court Session to grant the injunctive relief sought. Mr M Kimber SC with Mr A B Gotting and Mr I Taylor of counsel submitted that whilst the Commission in Court Session does not have an express power under the Industrial Relations Act 1996 to grant interim injunctions in s 106 proceedings, it has an implied power to do so by virtue of its constitution as a "superior court of record". Mr P M Hall QC with Mr W T Houghton QC and Mr M Connock of counsel submitted that whilst the Court had power to make asset preservation orders, it did not have an express or implied power to grant injunctive remedies, whether they be interim or final.

17 Whilst I adhere to the view I expressed in Collison v Hewston [2001] 103 IR 403 that the Court possesses a general implied power to grant interlocutory relief whenever the administration of justice demanded it: see Gaudron J in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 639, cited with approval by Kirby J in Cardile v LED Builders Pty Limited (1998) 198 CLR 494 at 423, I intend to deal with the current application in a narrower fashion, that is, whether the Court has an implied power to grant interim injunctive relief to ensure that any final relief that might be open to the Court to grant is not frustrated or put at naught. In other words, whether the Court has the power to postpone the termination date of the dealership agreements until it has heard and determined the applicants' claims for final relief, it being noted that if the interim orders sought by the applicants are not granted the dealership agreements will terminate on 25 October 2001 and the primary relief sought by the applicants, namely, variation of the extant agreements, would no longer be available. As I have already noted, if the respondents' contention were upheld that there is no serious issue to be tried because there was no unfairness then, of course, that would effectively put an end to the entire proceedings.

18 In a recent judgment, Haylen J had occasion to consider the Court's power to grant interlocutory relief in Sea Acres Rainforest Centre Pty Limited v The State of New South Wales [2001] NSWIRComm 207. At [49], his Honour said: 49 The High Court in Jackson v Stirling Industries Ltd and Hungerford J in Darvall pointed to the necessity to protect the Court's jurisdiction to enable it to act effectively within its jurisdiction. The cases have expressed the approach to be adopted in a number of ways: to protect against the frustration of the court's remedies; the need for the court to be given by implication whatever jurisdictional power that may be necessary for the exercise of those powers expressly conferred; to defeat any attempt at thwarting the court's process; the possession of powers which are necessary to enable the court to act effectively within such jurisdiction as is conferred upon it; referrable to the power of a court over its own process which is unlimited; (from Jackson v Sterling ); to prevent rendering less effective any judgment or order which may be obtained (Polly Peck ); to ensure that any final order that may be made will not be frustrated or put at nought ( Darvall ); to take such steps as are necessary to ensure the court is not denuded of the capacity to make an effective order ( Maharaj ); to prevent the denial to a successful litigant of the right to receive the amount of orders which the court considers just and reasonable in all the circumstances of the case ( Maiden ); and to protect the integrity of the processes of the court once those processes are set in motion ( CSR Ltd v Sigma ; Cardile ). The approach in these cases speak of preserving the whole of the jurisdiction to make orders - they do not contemplate a situation where some available orders or relief are removed from consideration or otherwise rendered inapplicable. The protection, understandably, is of the entire jurisdiction of the court: an interlocutory order will be made if a party takes some step which will render less effective any judgment or order which may be obtained or to overcome any attempted thwarting of the court's process (my emphasis). 19 I respectfully agree with his Honour's reasoning and conclusion. I think it is appropriate, however, given the importance of the issue and without repeating the analyses in Sea Acres and Collison v Hewston (2001) 103 IR 403, to summarise the basis for holding that the Commission in Court Session has an implied power under s 106 to provide injunctive relief "if a party takes some step which will render less effective any judgment or order which may be obtained or to overcome any attempted thwarting of the court's process": 1) The Commission in Court Session is a superior court of record: s 152(1) of the Industrial Relations Act 1996. The judicial functions of the Commission are those prescribed by s 153(1) and include proceedings under Pt 9 of Ch 2 of the Act. The Commission's general functions are those prescribed by s 146(1) of the Act. 2) The Act does not confer an express power on the Court to grant interim injunctions in s 106 proceedings: Darvall v NZI Securities Australia Ltd (1990) 21 NSWLR 36 at 41; (1990) 39 IR 215 at 220; Collison at 409. 3) It is well settled, however, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise: Grassby v The Queen (1989) 168 CLR 1 at 16 per Dawson J. A statutory court, which is expressly given certain jurisdiction and powers must be taken to be given, by implication, whatever jurisdictional powers may be necessary for the exercise of those expressly conferred. The implied power to prevent abuse of process, is similar to, if not identical with, inherent power: Jackson at 623-624; Parsons v Martin (1984) 5 FCR 235 at 240-241. The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 391. Statutory provisions conferring jurisdiction or power on a court are not construed as subject to any limitation which is not strictly required by their language and purpose. Where a court is endowed with a particular jurisdiction, it enjoys the powers necessary to enable it to act effectively within that jurisdiction. Its powers are not ordinarily construed as restricted to defined or closed categories. This is because of the infinite variety of circumstances that may come before a court and require "appropriate orders": Cardile per Kirby J at 423. The power of each Court over its own processes is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own processes abused for the purpose of injustice: Cocker v Tempest (1841) 7 MW 502 at 503-504 per Alderson B. 4) The High Court in Cardile at 400-401 adopted the following statement from Patrick Stevedores Operations (No.2) Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 33: The general principle which informs the exercise of the power to grant interlocutory relief is that the court may make such orders, at least against the parties to the proceedings against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked: see Tait v The Queen (1962) 108 CLR 620.

5. In Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 16 Kirby P said: I am fully prepared to concede that the Land and Environment Court as a superior Court of record created as such by Parliament, has an implied authority to uphold, protect and fulfil the judicial function so afforded to it in the way McHugh JA described in John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476. To that extent, the difference between powers which are implied from the statute and those which are inherent in the Court is of no significance to this case. Indeed, the difference which arises from the nature of a Court, has been described as 'metaphysical': see Civil and Criminal Contempt in the Federal Courts (1947) 57 Yale LJ 83 at 85. I accept that in some recent authority (including that of McHugh JA in John Fairfax & Sons ) the use of the word 'inherent' has slipped in where clearly what was intended was 'implied'. It can scarcely be accepted, for example, that the Police Tribunal has inherent jurisdiction. It is simply the creature of statute. Its jurisdiction, and its powers, derive from the statute. They arise from the express words used and the implications from those words or from implications from the very fact that Parliament has established a Tribunal and contemplated that it will exercise powers to achieve certain ends. 6) In Dickins v Gibb Nominee Services Pty Ltd (1991) 43 IR 276 a Full Bench of the Commission in Court Session held that as a superior court of record it was "empowered to grant, in appropriate proceedings, a Mareva type injunction." The Full Bench rejected the contention that as the Commission in Court Session had not been declared a court of law and equity it was not empowered to grant a Mareva injunction.

7. In Patrick Stevedores, Brennan CJ, McHugh , Gummow , Kirby and Hayne JJ noted at 32-33 that the Mareva injunction is the paradigm example of an order to prevent the frustration of a court's process but other examples may be found.

8. There is now a developed line of authority as to the issue of the power of the Commission in Court Session to grant interlocutory relief or interim relief in proceedings initiated under s 106 of the Act: Kenoss Contractors Pty Limited v Allied Constructions Pty Limited (2001) 104 IR 66 at 76. These authorities refer to the power not only to grant Mareva or asset preservation orders ( Wheeler v Selbon Pty Ltd t/as Parklands Nursery [1984] 1 NSWLR 555; (1984) 7 IR 383; Dickins; Loupos v Basa (1995) 62 IR 397 at 401 ; Cooper v Sithe Energies Australia Pty Limited [2000] NSWIRComm 132; Brigitte Lipman v AG Lifestyle Management Pty Limited [2001] NSWIRComm 115 at [8]) but also to the power of the Court: "to make interlocutory orders in the protection of its process and so as to ensure that any final orders made may not be frustrated or put at naught" ( Darvall at 43); "to take steps as are necessary step (sic) to ensure that the court is not denuded of the capacity to make an effective order" ( Maharaj v 7-Eleven Stores Pty Ltd (unreported, Peterson J, 4 April 1997)); to maintain the efficacy of the final relief sought ( Transport Workers' Union of Australia, NSW Branch & Ors v Boral Resources (NSW) Pty Ltd (unreported, Peterson J, 3 December 1992)); to prevent the denial to a successful litigant of the right to receive the amount of orders which the court considers just and reasonable in all the circumstances of the case ( Maiden v New Zealand Natural Pty Ltd (unreported, Hungerford J, 20 June 1997)); to grant interlocutory relief in the nature of injunctive orders provided that any order made is issued consistent with the inherent or implied power of the Court to protect its own processes ( Bowker v Prophecy Technologies Pty Ltd (unreported, Marks J, 26 May 1999)); to make an interlocutory order if a party takes some step which will render less effective any judgment or order which may be obtained or to overcome any attempted thwarting of the court's process ( Sea Acres at [49].

9. Whether the Court has an implied power to grant interlocutory relief under s 106 depends on the construction of that section and in the context in which it appears in the Act as to whether the particular interlocutory relief is necessary for the exercise of the jurisdiction otherwise conferred by the section in the sense of being incidental thereto, or either express or implied by the language used: Darvall at 41; 221.

10. The Court's jurisdiction under s 106 (and its predecessors) is very wide: Stevenson v Barham (1977) 136 CLR 190 at 195, 199, 201; Walker v Industrial Court of New South Wales (1994) 53 IR 121 at 135 per Kirby P; Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 at 374 per Sheldon J. A contract may not only be unfair by its operation but it may also be unfair because of any conduct of the parties: Reich v Client Server Professionals of Australia Pty Limited (Administrator Appointed) (2000) 99 IR 69 at 83.

11. The Court has the power to set aside or vary an unfair contract: s 106(1). This is the primary remedy under the section. A contract may be unfair because it is against the public interest: s 105(b). The Court also has power to award a sum of money that the Court considers just in the circumstances of the case: s 106(5). The power to make an order for the payment of money is a discretionary power to make such an order as can reasonably be thought to have a real connection with the making, variation or avoidance of the contract or arrangement which has been varied or avoided: Brown v Rezitis (1970) 127 CLR 157 at 164-165 per Barwick CJ.

12. Section 106 contemplates the Court having power to vary contracts while they are on foot: Davies v General Transport Development Pty Ltd (1967) A R (NSW) 371 at 373-374; Port Macquarie Golf Club v Stead (1996) 64 IR 53 at 59-60; Starkey v Mitchforce Pty Ltd [2000] NSWIRComm 216 at [69].

13. The power of the Court to grant interlocutory relief is not shaped or conditioned by the nature of the relief sought ( Maharaj ). However, where a party seeks by way of final relief the variation of an extant contract in order to remedy unfairness and arising out of interlocutory proceedings the Court considers that such relief might ultimately be granted, it would be "highly unsatisfactory" to refuse interlocutory relief aimed at keeping the contract on foot. To refuse such relief would be to effectively reduce the width of the Court's jurisdiction to make suitable orders; the Court would be left with the only significant power being to order the payment of money in compensation for any unfairness in circumstances where money may not satisfactorily recompense the applicant: see for example, Sea Acres at pars 49-50 and Bowker.

14. The making of interlocutory orders to maintain the status quo, for example, until a final determination has been made only involves a preliminary consideration of the issues, that is, whether there is a serious question to be tried and discretionary issues including the balance of convenience. In the absence of clear words of limitation in the statute the Court may make such orders, at least against the parties to the proceedings against whom final relief might be granted, as are needed to ensure the effective exercise of the jurisdiction invoked: Cardile ; Patrick Stevedores . It follows that in considering whether or not, for example, to keep a contract on foot until the nature and extent of final relief under s 106 is determined, it is unnecessary to determine as a pre-condition to granting interlocutory relief that there has been relevant unfairness within the meaning of the section. If it were right that unfairness had to be found before any interlocutory relief could be ordered then it would seem to follow that there would be no power to make an asset preservation order until such a finding had been made: see Collison at 412. This would be inconsistent with the approach adopted by the High Court to considerations of implied power to grant interlocutory relief and contrary to the decision of the Full Bench in Dickins and other decisions of single members of the Court.

15. There is no basis in law or logic for the proposition that, on the one hand, the Court has power to make a Mareva type order to prevent frustration of its process by ensuring that any money order the Court might make will be effective but, on the other hand, it does not have power to make an interlocutory order to prevent frustration of its process by ensuring that a contract stays on foot so that any final variation order that the Court may regard as appropriate will be effective.

20 In these interlocutory proceedings the applicants have sought certain orders the effect of which would be to postpone the termination date of the dealership agreements until the substantive proceedings have been heard and determined. The primary relief that the applicants seek is to keep the dealership agreements on foot, subject to variation. I do not consider there is any doubt that I have the jurisdiction to grant the final relief sought. If the Court does not grant the interlocutory relief the dealership agreements will terminate on 25 October 2001. The consequence of that would be that the Court would be deprived of the opportunity to consider whether final relief in the form sought should be granted.

21 That the Court has the power to make money orders that it considers just in the circumstances is not, in my opinion, a basis in this case for concluding that there could be no frustration of the Court's processes. It may be that compensation is not an appropriate remedy and, indeed, it is not the primary relief sought by the applicants. There is no warrant, in my opinion, to simply convert a primary claim for a contractual variation into a claim for money. Moreover, the case has been split into two parts; the first part is to consider the primary relief of variation sought by the applicants and the second part is to consider issues of compensation. The purpose of splitting the case was that if the applicants were successful in achieving their primary relief it would obviate the need to consider compensation and there would be no need to proceed to the second part of the case. If I were to find that there was no jurisdiction because an order for compensation would avoid any frustration of the Court's processes, I would, in effect, be abandoning the first part of the case mid-stream and preventing the applicants making out their case for primary relief even before all the evidence had been heard.

22 In Teletech International Pty Limited v Medical Benefits Fund of Australia (No.3) (unreported, Peterson J, 30 November 1998), the Court, whilst part heard in the final expedited hearing of the matter, was asked to discharge the injunction earlier granted by Maidment J so that the contract in question could be terminated. His Honour declined to do so, saying: The resolution of these issues is, I consider, not straightforward. I accept that the stage of proceedings have reached may have caused the prospect of the applicant succeeding in respect of its primary claim for relief to appear less likely than it may have at the earlier interlocutory stage. However, it seems to me that to dissolve the order at this stage would be tantamount to finding that there was no prospect that Teletech could succeed in its primary claim. Such a finding should not, I consider, be made before all the evidence is in, particularly having regard to the fact that credit is a factor, possibly as a critical one in the resolution of the proceedings.

23 In Teletech (No.4) (unreported, Peterson J, 18 December 1998) his Honour was again invited to discharge the interlocutory injunction. He said: I consider that the interlocutory order should remain on foot only in circumstances where I am either persuaded that I should ultimately grant the primary relief sought or alternatively where I am undecided in that respect and the prospect of the grant of the primary relief remains open as an alternative.

24 In my opinion, and based on the foregoing analysis and summary of the law, I consider that the Court possesses an implied power under s 106 to keep the dealership agreements on foot until the Court has heard and determined the applicants' claims for final relief. To allow the dealership agreements to be terminated on 25 October 2001 would frustrate the Court's processes.

Power 25 The respondents in the interlocutory proceedings have raised a number of significant objections to the Court exercising power to grant the interlocutory relief sought by the applicants. The respondents put their submissions on the basis that the Court did not have the power to make the interlocutory orders sought.

26 The first contention by the respondents in this regard was that what the Court is concerned with in these proceedings are commercial contracts from which the applicants have gained very significant benefit from initially relatively small investments and which have made the applicants, especially Mr Gough, millionaires many times over. The respondents submitted that what the applicants, in effect, contended was that they had entered into the contracts and made significant investments to expand the dealership in the expectation, based on assurances given by the respondents, that these beneficial contracts would, subject only to the remotest possibility of termination, continue in perpetuity; that the applicants had relied on these alleged assurances or representations to their detriment and that what the applicants now seek from the Court in the face of termination of the contracts, is fulfilment of their expectation that the contracts would remain on foot in perpetuity. It was submitted that to grant the relief sought would be to enable wealthy persons to unjustly enrich themselves and this was not something equity should permit.

27 The respondents submitted that as a question of law, based on promissory estoppel principles, the Court would not grant the final relief sought by the applicants: The Commonwealth of Australia v Verwayen (1990) 170 CLR 394. Nor would the Court order that a contract should remain on foot, virtually in perpetuity, when the evidence disclosed that there was no mutual trust and confidence now existing between the parties to the contract; to do so would be tantamount to ordering specific performance and the courts are most reluctant to make such orders other than in the most exceptional circumstances: Dataforce Pty Ltd v Brambles Holdings Ltd (1988) VR 771 at 784-785. All this being the case, it was submitted the Court should decide this question of law at the interlocutory stage with the effect that if the Court accepted the respondents' submission in this regard, the applicants' claims for final relief would be knocked out: Heavener v Loomes (1924) 34 CLR 306; Hortico (Australia) Pty Ltd v Energy Equipment Co (Australia) Pty Ltd (1985) 1 NSWLR 545; Barclay Mowlem Construction Ltd v Simon Engineering (Australia) Pty Ltd (1991) 23 NSWLR 451.

28 Mr Hall, for the respondents, submitted that while the Court's powers under s 106 were broad in nature, the claim for relief in this case: …. is not viable and should not be allowed to be used as the basis for injunctive relief which, as the authorities we will take the Court to, is not granted lightly, particularly where it forces one party who is unwilling to stay in a contractual relationship with the other, where the orders are in essence and in substance mandatory and require specific performance of a contract. 29 Mr Hall referred to the comments by Kirby P in Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 at 585 where his Honour said: We are not dealing here with ordinary individuals invoking the protection of equity from the unconscionable operation of a rigid rule of the common law. Nor are we dealing with parties which were unequal in bargaining power. Nor were the parties lacking in advice either of a legal character or of technical expertise. The Court has before it two groupings of substantial commercial enterprises, well resourced and advised, dealing in a commercial transaction having great value. As has been found, they did not reach the point of formulating their agreement in terms which would be enforced by the law of contract. This is not, of itself, a reason for denying them the beneficial application of the principles developed by equity. But it is a reason for scrutinising carefully the circumstances which are said to give rise to the conclusion that an insistence by the appellants on their legal rights would be so unconscionable that the Court will provide relief from it.

At least in circumstances such as the present, courts should be careful to conserve relief so that they do not, in commercial matters, substitute lawyerly conscience for the hard-headed decisions of business people: cf State Rail Authority of New South Wales v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170 at 177 and Geftakis v Maritime Services Board of New South Wales (Court of Appeal, 20 November 1987, unreported). If courts do not show caution here they will effectively force on commercial parties terms which the court may think to be reasonable and as ought commonly to govern such a contract but which the parties have themselves held back from concluding. Moreover, the contract then enforced will not be that which the parties have concurred in but a different one, determined by the court: cf Kitto J in Whitlock at 457. 30 Mr Hall also referred to the decision of Peterson J in Scanruby v Caltex [2001] NSWIRComm 8 where his Honour said at [66], [67] and [85]: 66 I have formed the opinion that the expectation of Scanruby was not totally unjustified or a fabrication but that it never crystallised as even an informal offer, let alone an agreement. The tenure to be finally offered was hoped by Scanruby to be, but never actually confirmed as, a nine or ten year term, including option periods. While the circumstances of the provision of the initial agreements and leases left Scanruby in a position where it felt little if any alternative could be taken to execute them, there remains in the evidence a conundrum I have found extremely difficult to understand, if Scanruby's position was then as it is now claimed. That is that neither then nor at any stage thereafter in all the sequence of events and discussions through 1993 to 1998 that I have summarised, did Mr Dimis, or anybody else on Scanruby's behalf, including Mr Zacharatos, ever mention to a Caltex representative that Caltex had failed to honour a promise that Scanruby would have at least nine or ten years at the F3 site. If the expectation was grounded in some positive statement on behalf of Caltex to that effect, I find it impossible to understand how it could not have been identified repeatedly by Scanruby in the many discussions I have referred to. Equally how could that understanding of the parties' intention not be the subject of a note, letter or minute. Where there is to be found any such reference it is oblique and, taking into account the minutes from which I have extracted parts, suggestive of a desire rather than a perceived right. For example, there seems to me to be a world of difference between the minutes recording Mr Dimis having said "We need long tenure" and an alternative postulation such as "We need the long tenure we were promised at the outset by X on behalf of Caltex".

67 In the context of a multi-million dollar enterprise, as was the F3 site, I consider the absence of these observations, indications or complaints in effect at all times during the subsistence of the parties' relationship to speak powerfully against the proposition that the applicant has been denied something which was intended by Caltex that it have, namely, a total period of occupancy of up to 10 years. In my opinion, where the complaint made by the applicant in proceedings such as this relates to a lucrative business and the respondent has exercised the contractual rights to terminate conferred upon it by the legal instruments utilised by the parties to create their relationship, after having otherwise satisfied those terms, then a clear case ought to be demonstrated that the exercise of those rights diverged from the mutual understanding of the parties on the matter of tenure. I am unable to find on the evidence that such a mutuality ever existed in this case.

85 The consequences of Scanruby's approach was to maintain the overall operation in the form in which it had been contracted. While the losses in the gift shop were substantial their effect was to reduce overall the profit otherwise achievable by Scanruby. In circumstances where Mr Dimis contemplated at the outset that the gift shop could be made viable and where, in the face of losses, Caltex and Scanruby attempted jointly to find a suitable alternative, there seems to me no reason to isolate the gift shop losses from the overall profitability of the operation. There is no element of unfairness inherent in the specification of use accepted by Scanruby which happened to be unprofitable. To do otherwise would be to make what was a profitable venture more profitable. That is not the purpose, as I apprehend it, of s 106 in the absence of some other feature which attracts relief.

31 Mr Hall submitted that there was no record of any assurances of the type alleged and that to grant the relief sought by the applicants would be to make an already very profitable business even more profitable.

32 Three other cases referred to by Mr Hall as supporting his contentions were: Kurt Keller Pty Ltd v BMW Australia Ltd (1984) 1 NSWLR 353; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (unreported, Finkelstein J, 2 July 1999; [1999] FCA 903); Agro Holdings Ltd v Flexi-Coil (Australia) Pty Ltd (unreported, Nicholson J, 26 November 1999; [1999] FCA 1658). In Kurt Keller the plaintiffs sought interlocutory relief in the nature of an injunction to restrain the defendants from terminating a franchise agreement involving a motor vehicle dealership in accordance with the terms of the agreement on the basis that the doctrine of equitable estoppel was available or, alternatively, that there was an implied negative stipulation not to terminate the franchise agreement except for breach. Powell J said (by way of obiter) that a party to a contract who seeks to rely upon the doctrine of equitable estoppel (or promissory estoppel) must be able to point to either a statement which constitutes, or conduct from which a reasonable man would infer, a clear and unequivocal representation by the person having the particular legal power, or discretion, either, that, in the future he would not exercise the power or discretion at all, or that, for a time, the power would be suspended. Mr Hall submitted that there were no representations made by the respondents to the applicants of the type alleged by the applicants, namely that:

· the applicants could reasonably expect to be secure in the dealership provided good PINS (percentage of industry net sales) and good profit were maintained ("the first assurance"); · the 90 day notice of termination provision of the dealership agreements would only operate in the event of serious and wilful misconduct or sustained and significant poor performance ("the second assurance"); · there was no proper basis for the allegations contained in the draft 1997 report by the first respondent on the applicant's business and that the applicants did not need to comment on the allegations in the report and that the matter was closed ("the third assurance"); · if the second and third applicants agreed to sell their shares in the first applicant the sale would be conducted on an amicable and reasonable basis without duress and would provide an opportunity for the second and third applicants to receive a fair value for the shares; that the first respondent would assist the applicants to achieve such an outcome; and, by implication, that if no agreement for a sale at fair value could be reached the applicants would retain the dealership ("the fourth assurance").

33 Mr Hall submitted that the applicants could point to no "clear and unequivocal representation" by a person acting with the authority of the respondents as to any of the alleged assurances. As the applicants' case was based squarely on promissory estoppel, Mr Hall submitted, the applicants could not succeed in the absence of any such representation.

34 I note, however, that in Sanderson Motors (Sales) Pty Ltd v Yorkstar Motors Pty Ltd [1983] 1 NSWLR 513, where the plaintiff sought an injunction to restrain the defendant from terminating a dealer agreement in breach of a contract between the parties, Yeldham J said: The plaintiff has spent considerable sums of money in order to establish and maintain its position as a Mercedes-Benz dealer in the eastern suburbs of Sydney. Plainly it was entitled to expect that the agreement would be a "self renewing agreement" and would not in normal circumstances be terminated. The future rights and obligations of the parties controlled and determined by the dealership agreement and do not require the supervision of the Court. Hence I see no reason why an injunction should not be granted and every reason why it should be. Damages in my view would not be adequate compensation. The true principle is: "Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?" (per Sachs LJ in Evans Marshall & Co Ltd v Bertola SA [1973] 1WLR 349 at 379; [1973] 1 All ER 992 at 1005). My answer to this question is in the negative.

35 Agro Holdings involved an application for a permanent injunction preventing the respondent from terminating certain Dealer Agreements either until the expiration of five years from 18 March 1998 or, alternatively, the year 2002 or, alternatively, a reasonable period the Court considered appropriate. It was alleged by the applicant that certain representations had been made that were such as to give the applicant dealer security of tenure for five years. As to this, Nicholson J said: I reject the submission for the applicant that the alleged representations were such as to give the applicant as a dealer security of tenure for five years…I accept that whether there is a serious case to be tried concerning the representations arises in the context that the representations were directed to whether or not there would be interference by New Holland in the business of the respondent so as to occasion it to change its dealerships. I made commercial sense for Mr Dorval to have made his statement at the Conference without limiting the respondent's general right of termination which I consider arises under cl 9.

36 His Honour went on to say: … it is to be borne in mind that even if the applicant succeeds in establishing the making of either of the representations and that they were misleading and deceptive, that is not inconsistent with the right of either party to terminate the dealer Agreements by giving notice pursuant to cl 9 of the agreement. That is, even if the representations are established they must be understood in the context as defeasible by the exercise of rights under that clause. This position arises because I do not consider that either in the case as pleaded or on the evidence the representations are that the Dealer Agreements between the applicant and the respondent would not be terminated before the year 2002.

It follows that while the applicants case raises a serious issue to be tried (namely whether the representations were made) the remedies which may follow from that in relation to the exercise of the right of termination by the respondent arising under cl 9 may be minimal. The case on the representations cannot be regarded as strong.

37 Mr Hall submitted that in the present proceedings the evidence did not support the giving of assurances as pleaded but even if there were some utterings or conduct in that direction they were so weak they must be understood as "defeasible" by the exercise of (termination) rights under cl 29 of the dealership agreements.

38 In Garry Rogers Motors the applicant sought an interlocutory injunction restraining the first respondent giving effect to a provision in the dealership agreement allowing the first respondent to terminate the agreement by notice. In finding that the first respondent was not estopped from relying on its notice of termination and, therefore, there was no serious issue to be tried, Finkelstein J said: To found such an estoppel the applicant must show that the first respondent has, by its conduct, led the applicant to suppose that the strict rights under the dealership agreement would not be enforced and that, in the circumstances, an enforcement of those rights would be inequitable having regard to the dealings between the parties. It would be inequitable to enforce those rights if the applicant had acted, or refrained from acting, to its detriment in reliance on the first respondent's conduct. There is no serious issue to be tried here because there is no conduct of the first respondent that could have led the applicant to believe that the termination would not proceed in accordance with the notice. There is no serious issue because no act or failure to act by the applicant would result in any relevant detriment if the termination proceeds.

39 Finkelstein J referred to a "Six-Star program" that the first respondent had requested its dealers to participate in: The applicant had been a dealer for seven or eight years. Whilst it was no obliged to adopt the Six-Star Program, that is, it was not contractually obliged to do so, its failure to adopt the program and its criticism of certain aspects of the program, could reasonably be regarded by the first respondent as an indication that the applicant was not willing to act in the best interests of the first respondent and of the dealership group as a whole. No doubt this led to a loss of confidence in the applicant. The loss of confidence would not necessarily be overcome by a change in attitude on the part of the applicant. Many relationships can only operate satisfactorily if there is mutual confidence and trust. Once that confidence and trust has broken down the position is not easily restored. It is not unconscionable to terminate a relationship where that trust and confidence has been undermined.

40 Mr Hall submitted that the evidence revealed a complete absence of trust and confidence between the applicants and the respondents, indeed, that the relationship was "riddled with mistrust" and that in those circumstances it was not unconscionable for the first respondent to have terminated the dealership agreements.

41 In summary then, what Mr Hall submitted on this issue of the Court's power to grant the orders sought by the applicants was:

1. The dealership agreements between the first applicant and the first respondent are commercial contracts in respect of which the applicants are seeking by way of primary final relief what is, in effect, a permanent mandatory injunction to keep the dealership agreements on foot. The effect of granting the primary relief sought would be to maintain the dealership agreements in perpetuity and to unjustly enrich the second and third applicants. 2) The applicants claim that the respondents made certain pre and post contractual representations upon which the applicants relied to their detriment. The applicants' claim is, in effect, that in relying on these representations they were induced to buy the dealership, to invest in expanding the dealership and to expect that the dealership would continue unless their performance was unsatisfactory or they were guilty of serious and wilful misconduct. 3) It is appropriate for the Court to deal with the applicants' claims by applying relevant equity law principles, in particular, promissory estoppel. That is, a court of common law or equity may do what is required, but no more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs which assumption the other party has induced him or her to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. 4) Given that: a. The evidence is that there were no clear and unequivocal representations made as alleged in the pleadings; b. There is a complete absence of trust and confidence between the applicants and the respondents; c. Promissory estoppel principles prevent the Court from providing final relief the effect of which would be to fulfil the applicants' expectations; d. The relief sought is in the nature of specific performance; there is no power to make the variation orders on a final basis. 5) On an application for an interlocutory injunction that raises question of law, the Court should proceed to decide those questions unless the determination requires a factual matrix that is not available until the facts in the entire proceedings have been proved. The Court has all the relevant facts necessary to make a determination at this interlocutory stage and that given there is no power to make the final variation orders by virtue of the principles of promissory estoppel the Court should so decide.

42 Provided, of course, that the contract in issue is a contract whereby work is performed in an industry, the fact that it might be characterised as a commercial contract does not put it beyond the Court's jurisdiction: Loupos at 398; Zakrzewski v Rodgers (2001) 106 IR 1 at 10. In referring to the dealership agreements as commercial contracts, Mr Hall was, I think, seeking to strengthen the analogy between what this Court is required to determine in the context of s 106 proceedings and what the Supreme Court or the Federal Court might be called on determine as courts of common law and equity in relation to a commercial contract case. The essence of Mr Hall's submission regarding power was that if this case had come before an equity court it would have been bound by equity principles, including promissory estoppel. Hence, in determining the claims in this case, this Court should, indeed must, follow the well-trodden equity path.

43 This is undoubtedly a powerful argument. However, I think that if the Legislature had wanted the Court to determine claims under s 106 according to equitable principles it would have said so in plain language. It has not done that. What it has done, however, is invest the Court with very wide powers. Barwick CJ in Stevenson v Barham referred to the language of s 88F as "intractable" and that it must be given effect according to its width and generality. In Walker v Industrial Court of New South Wales (1994) 53 IR 121 at 135 Kirby P said: The High Court of Australia, and this Court, have repeatedly stressed the very wide discretion conferred by s 88F upon the former Industrial Commission (and now the Court). Once s 88F(1) attaches, the remedies which are then at the disposal of the Commission (now the Court) are also extremely wide. There is no warrant for confining this very large power, or for narrowing the circumstances of its exercise, except as the statute provides. See Stevenson v Barham (1977) 136 CLR 190 at 195,199,201.

44 In Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 the High Court considered whether the amount recoverable under s 82(1) of the Trade Practices Act 1974 (Cth) or the orders that might be made under s 87 of that Act were limited by analogy with breach of contract, tort or equitable remedies. The Court held that it was not.

Once it is appreciated that references to the "established measures of damages ... [for] contract and tort", as in Gates ((1986) 160 CLR 1 at 11, per Mason, Wilson and Dawson JJ) signify different kinds of loss and not different methods by which loss is measured, it is irrelevant to inquire as to the appropriate measure of damages for the purposes of ss 82 and 87 of the Act. Rather, the task is simply to identify the loss or damage suffered or likely to be suffered and, then, to make orders for recovery of that amount under s 82 or to compensate for or prevent or reduce that loss or damage under s 87 of the Act. Moreover, once it is appreciated that, for the purposes of the law of contract "expectation" loss signifies the loss of a valuable right, namely, the contractual promise, it is irrelevant and quite misleading to ask whether, in the case of misleading and deceptive conduct under s 52 of the Act, ss 82 and 87 allow for "expectation" loss or "consequential" loss. It is irrelevant, because, if the misrepresentation is not contractual, there can be no loss of a contractual promise. It is misleading because it tends to suggest that if "expectation" loss is not recoverable, the claimant can never be compensated in an amount equivalent to that which would be payable if the representation were contractual. Not only is it misleading to speak of "expectation" loss and "reliance" loss in the context of s 82, but there is no basis for thinking that relief under s 82 is to be confined by analogy either with actions in contract or in tort. With regard to that last matter, all members of the Court are agreed. We differ only in our approach to the question whether, in the circumstances, the appellants suffered or were likely to suffer loss or damage.

46 Similarly, at 510, McHugh, Hayne and Callinan JJ said: It can be seen, therefore, that both ss 82 and 87 require examination of whether a person has suffered (or, in the case of s 87, is likely to suffer) loss or damage "by conduct of another person" that was engaged in the contravention of one of the identified provisions of the Act. That inquiry is one that seeks to identify a causal connection between the loss or damage that it is alleged has been or is likely to be suffered and the contravening conduct. But once that causal connection is established, there is nothing in s 82 or s 87 (or elsewhere in the Act) which suggests either that the amount that may be recovered under s 82(1), or that the orders that may be made under s 87, should be limited by drawing some analogy with the law of contract, tort or equitable remedies. Indeed, the very fact that ss 82 and 87 may be applied to widely differing contraventions of the Act, some of which can be seen as inviting analogies with torts such as deceit (eg, s 52) or with equity (eg, s 51AA) but others of which find no ready analogies in the common law or equity, shows that it is wrong to limit the apparently clear words of the Act by reference to one or other of these analogies.

47 Gummow J took essentially the same view as the other members of the Court where he said at 529: These considerations, reflecting the apparent scope and purpose of the statute, militate against the presence of any legislative intention that before the court comes to assess the amount for which applicants are to be compensated under s 82 it first must identify any relevant general common law rules or analogies, understand the reasons that led to their development, and then seek to adapt or adopt them consistently with the scope and purpose of the legislation. As I have indicated earlier in these reasons, what was said by this Court in Gates (1986) 160 CLR1 at 11-12, 14-15 (and Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 at 290 does not determine that the measure of compensation which is recoverable in an action under s 82 is confined by analogies with tort or otherwise. The measure of damages recoverable in actions of a varied nature for which s 82 provides is not to be determined on the basis that the appropriate guide in most cases will be found by asking what would have been the measure if the common law did what it does not do, namely treat as a tort any facts which happen to give rise to an action under s 82. Analogy, like the rules of procedure, is a servant not a master.

48 The remaining member of the High Court in Marks, namely Kirby J, whilst dissenting overall, agreed with the other members on this issue that orders under s 87 of the Trade Practices Act were not limited by analogy with breach of contract, tort or equitable remedies. See also Henville v Walker [2001] HCA 52 at [18],[66], [130].

49 Arguably, the language of s 106 is even more general than that in ss 82 and 87 of the Trade Practices Act. If, on the basis of its scope and purpose, there is no foundation for limiting the language of the Trade Practices Act as expressed in ss 82 and 87 by drawing some analogy with the law of contract, tort or equitable remedies, similarly in my view, there is no basis for doing so in respect of s 106 of the Industrial Relations Act.

50 The "test", if one can put it that way, under promissory estoppel is whether a person who has relied on an assumption as to a present, past or future state of affairs, which assumption the other party has induced him or her to hold, has suffered detriment in reliance upon the assumption as a result of the denial of its correctness. If the person has suffered detriment in these circumstances, the court will do no more than is necessary to avoid the detriment. The test, however, under s 106 is not whether a person has been induced by a representation to rely on an assumption to his or her detriment. The test under s 106 is a very broad multi-tiered test, namely:

1. Is the contract or arrangement unfair? 2) If so, should the contract or arrangement be avoided or varied? 3) If it is decided that the contract or arrangement should be avoided or varied, should an order also be made for the payment of money in connection with the contract or arrangement declared void or varied? 4) If a money order is to be made, what order is just in the circumstances of the case?

51 Whilst the High Court in Marks expressly disavowed the proposition that the remedies provided by ss 82 and 87 of the Trade Practices Act are to be confined by analogies, whether with equity or otherwise, McHugh, Hayne and Callinan JJ went on to say, however, that: This is not to say that no help can be had from the common law in deciding what damages may be allowed under s 82 in cases of conduct contravening s 52. Very often, the amount of the loss or damage caused by a contravention of s 52 will coincide with what would have been allowed in an action for deceit. But that is because the inquiry in both cases is to find out what damage flowed from (in the sense of being caused by) the deceit or contravention. Leaving aside questions of remoteness of damages in assessing damages for deceit (a question that was left unresolved in Gould v Vaggelas ((1985) 157 CLR 215 at 223-224, per Gibbs CJ) the damages for deceit will be the sum representing the loss suffered by the plaintiff because the plaintiff altered its position in reliance on the defendant's misrepresentation. But the analogy cannot be pressed too far. It should not be pressed to the point of concluding that the only damages that may be allowed under s 82 are those that would be allowed in an action for deceit. The question presented by s 82 is not what would be allowed in deceit, it is what loss or damage has been caused by the conduct contravening the Act (my emphasis). 52 The difficulty of applying common law rules or principles in determining issues under s 106 was recognised by the Full Court (Fisher CJ, Bauer, Hill JJ) of the Industrial Court of New South Wales in New South Wales v Health and Research Employees' Association of New South Wales (unreported, NSW Industrial Relations Commission, 31 March 1993), at 80: It is clear that an instruction for the payment of a sum 'just in the circumstances' in s 88F(2) has a wider base than that generally available under the principles of common law damages. Indeed, the existence of s 88F indicates that the legislature found that common law remedies were not necessarily appropriate and it seems to follow, insofar as argument by analogy might be useful that, though persuasive, reliance solely upon common law rules as to damages may well be inappropriate.

53 In Harcourt Brace & Co (Australia) Pty Limited v Cory (1998) 81 IR 321 a Full Bench (Hill, Hungerford and Schmidt JJ) of the Industrial Relations Commission in Court Session, after referring to the decision in New South Wales v Health and Research Employees' Association of New South Wales, said at 337: That reasoning, which we find persuasive, as to the application of the relevant common law principles (including the concept of mitigation) in determining under s 275(3) what is "just", necessarily conflicts with the approach adopted here by Glynn J. Given, as we think is the case, that s 275(3) is wider in its operation than that available under the common law principles as to damages, we respectfully agree with their Honours that in making an appropriate monetary order under s 275(3) it is proper to have regard to the common law principles or rules, including that of mitigation, but recognising that in particular cases some of the principles or rules will be inappropriate to adopt.

54 In my opinion, there is no foundation for the contention that the Court is bound by principles of equity in determining matters under s 106 of the Industrial Relations Act 1996. There is, however, a legitimate basis for holding that in exercising its powers under s 106 it is proper for the Court to have regard to equitable principles provided it is recognised that in particular cases such principles will be inappropriate to adopt. Ultimately, the guiding principle is whether the contract or arrangement in issue is unfair within the meaning of s 106 and any consideration of legal principles derived from other branches of the law will play a subsidiary role in determining whether there has been unfairness.

55 Accordingly, I find that I do have the power to grant the final orders sought by the applicants. It follows that the matters raised by Mr Hall in connection with this issue of power are properly matters going to whether there is a serious question to be tried and to the exercise of the Court's discretion.

Serious question to be tried - unfairness 56 Where a court has jurisdiction and power to grant an interlocutory injunction, the court must be satisfied that:

1. The applicant has made out a prima facie case or that there is a serious question to be tried (of the relevant kind); 2) Relevant discretionary considerations, including balance of convenience, favour the granting of the injunction.

See: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; American Cyanamid Co v Ethicon Ltd [1975] AC 396.

57 The respondents contended that there were no serious questions to be tried in that:

1. There is no serious question to be tried as to whether the dealership agreements are unfair or have become unfair by reason of the conduct of any party; 2) Even if unfairness of the kind referred to in (1) was to be assumed, there is no serious question to be tried as to whether the applicants are entitled to variation orders. 58 Mr Connock, for the respondents, submitted that not only had the applicants failed to establish on the evidence that there was a serious issue to be tried as to whether the dealership agreements were unfair or had become unfair by reason of the conduct of any party, but also that the evidence positively established that there was no serious question to be tried in relation to unfairness. Mr Connock submitted that while the issue fell to be determined on the state of the evidence at the time of hearing the interlocutory application, all of the applicants' evidence except that of their experts, and all of the respondents' affidavit evidence, was before the Court.

59 It was submitted that the evidence showed the following: 1) The relationship between Caterpillar and its dealers is critical. At its heart lies the concept of trust, respect and cooperation. The relationship is "personal" and so close that both "manufacturer and dealer must have unbounded mutual confidence in and respect for one another." 2) The dealership agreements each contain clauses that permit either party to end the relationship with or without cause upon the giving of 90 days' notice or such further period as may be agreed. 3) At the time the second and third applicants were applying to become dealer principals in 1988/89 they were assisted by legal, financial and other advisers. 4) Prior to becoming dealer principals the second and third applicants had extensive knowledge and experience regarding the operation of Caterpillar dealerships including the nature of the relationship and the reciprocal no-cause termination clauses. 5) At the time of appointment and acquisition of assets in 1988/89 the applicants obtained the benefit of the agreements and the process about which they now complain including that termination notices had been served on Waugh & Josephson; the applicants were selected as the preferred dealer candidate pursuant to a process similar to that which resulted in the selection of Westrac as preferred dealer candidate in the present case; the applicants acquired Waugh & Josephson's shares without paying any amount for goodwill in respect of the Caterpillar dealership. 6) There is no basis for accepting that the first and second (or third and fourth) assurances were made and no evidence that the applicants relied on the assurances. 7) In 1991 the second and third applicants sought to rely upon the terms of the agreements about which they now complain in order to justify not paying goodwill in connection with asset transfers and to effect a company restructure. In the context of the restructure it was accepted by the second and third applicants and their advisers that not only were there terms of the agreements entitling parties to give 90 days' notice but that there was no impediment to Caterpillar or the applicants effecting termination in accordance with their terms. 8) At the request of the applicants, the first respondent sold its shares back to the first applicant in 1994. At that time the applicants again relied upon the termination clauses in support of their position that no goodwill existed. 9) The second applicant was warned at the outset of the relationship about his approach to people. 10) The relationship between Caterpillar and the second and third applicants, and particularly Mr Gough, is and was difficult and troubled. 11) Differences of business philosophy and strategy existed and exist between Caterpillar and the second and third applicants. 12) Despite the existence of a legitimate basis for exercising its termination rights under the dealership agreements, Caterpillar sough to achieve a dealer transition amicably. 13) The conspiracy theory that Caterpillar sought to terminate the dealership to achieve consolidation is baseless. 14) Caterpillar encouraged the second and third applicants and Westrac to see if they could reach an agreement with respect to the sale of the applicants' assets, shares and the premium that Westrac was prepared to pay above asset values. The applicants were fully advised by legal and financial advisers. 15) On any view the conduct of the second and third applicants caused or contributed substantially to the breakdown in negotiations regarding the sale. 16) Despite a continued opportunity to carry out further negotiations the applicants have continued to refuse to participate in negotiations whether contingently or otherwise. 17) If the sale to Westrac had proceeded or does proceed then all customer and employee contracts will not be affected. 18) If an agreement with Westrac is not successfully negotiated by 15 December 2001 then appropriate steps will be taken regarding customers and employees in connection with setting up the new dealership 19) Caterpillar is and continues to be hindered in the conduct of its business. 20) To the extent that the position with the dealership is impacting upon the sales and financial performance within the dealership territory, Caterpillar continues to suffer financial loss.

60 It was submitted for the respondents that on the basis of the foregoing evidence there was no foundation for any finding of unfairness and, therefore, no serious question to be tried.

61 On the state of the evidence thus far before the Court, I consider that:

1. The second and third applicants were aware at all relevant times of the 90-day termination provision in the dealership agreements. 2) The second and third applicants understood the importance of and need for mutual trust and confidence in their relationship with Caterpillar. 3) In their dealings with the respondents involving transactions, disputes and disagreements the applicants did at all times have professional legal, financial and taxation advice available to them. 4) The second applicant, in particular, through his attitude and conduct, did sorely test the relationship between the dealership and Caterpillar. 5) The applicants did contribute to the deterioration in trust and confidence between themselves and Caterpillar. 6) Regardless of who is at fault, the respondents no longer have any trust or confidence in the applicants. 7) The applicants' conduct in the negotiations with Westrac for the sale of shares and assets did lead to significant delay in the sale process.

62 Nevertheless, I consider that there is a serious question to be tried as to whether the dealership agreements are unfair or became unfair by reason of the conduct of the respondents. The primary question, in my opinion, is whether a notice period of 90 days to terminate a dealership without cause is fair in the context of a business with over 800 employees and over $360 million in annual sales revenue in circumstances where the applicants have made significant investments in the dealership and where there is no evidence of poor performance or sustained under-performance. It seems to me in considering this issue that some of the more significant factors to be weighed up in determining whether there is unfairness are as follows:

1. Whether the applicants had proper grounds for believing that in entering the dealership agreements and investing in the business they were doing so secure in the belief that the dealership agreements would not be terminated except in the event of serious and wilful misconduct and significant poor performance. This raises the question of the alleged first and second assurances and the extent, if any, that the applicants relied on them. Although the respondents contend that these assurances were not given, and indeed, it does not appear from the evidence thus far there were any written assurances, it does seem unusual, notwithstanding the respondents' submissions as to why the applicants would have proceeded to purchase the business in the absence of the alleged assurances, that two experienced businessmen would do so and make very significant investments in that business without some confidence in the fact that they would not be tipped out, without any reason having to be given, on 90 days' notice. The fact that the no-cause termination provision was reciprocal is not in itself an answer to allegations of unfairness. The impact of termination on 90 days' notice on the applicants would, I think, be quite different to that experienced by the respondents if they had received 90 days' notice of termination from the applicants. 2) Whilst the dealership agreements provide for 90 days' notice of termination without cause, the question arises as to the conduct of the respondents in arriving at a decision to terminate the agreements. For example, the respondents contended that the core reason for terminating the dealership was that they had lost trust and confidence in the applicants. Was that corporate view formulated on a reasonable and proper basis or tainted by prejudicial or misleading information generated by one or more employees of the first respondent? If this view was formed on an improper basis, and if the applicants had a proper foundation for believing they were relatively secure in the dealership and had a long-term future, was there unfairness in the respondents' decision to terminate the dealership? 3) Whether the dealership agreements were unfair in not providing for procedures to resolve disputes between the parties and that in the absence of such procedures the respondents conducted themselves in a manner that contributed to the breakdown in relationships. Alternatively, did the applicants exploit the absence of a disputes resolution procedure and conduct themselves in an unreasonable and obstructive manner? 4) Whether there was unfairness arising out of the respondents' refusal or failure to consider, as an alternative to terminating the dealership, allowing the second and third applicants to "step back" from the day to day management of the business and install a manager who had the confidence of the respondents. 5) Whether the limitations placed on the applicants in being unable to sell the dealership in the market place to any one other than a buyer approved by Caterpillar caused unfairness. For example, in having to negotiate with Westrac as Caterpillar's approved buyer were the applicants put in a disadvantaged bargaining position vis a vis Westrac? Did Caterpillar in fact remain neutral in the negotiations between Westrac and the applicants? Did Westrac seek to unfairly exploit its bargaining position in the negotiations with the applicants in that, for example, they knew that Caterpillar would ultimately terminate the dealership if the applicants refused to accept Westrac's offer? If so, was the applicants' refusal to accept what might have been an unreasonable offer from Westrac the cause of the eventual breakdown in negotiations? Was the applicants' rejection of Westrac's offer unreasonable in the circumstances? Notwithstanding Westrac's offer to re-open negotiations, would negotiations occur on even terms? What inferences are to be drawn from the applicants' refusal to re-enter negotiations with Westrac if only on a contingency basis? 6) Whether there is any substance in the alleged fourth assurance, namely, that if the applicants agreed to sell their shares the process would be "conducted on an amicable and reasonable basis without duress and would provide an opportunity … to receive a fair value for the shares; that [Caterpillar] would assist the applicants to achieve such an outcome; and, by implication, that if no agreement for sale at a fair value could be reached the applicants would retain the dealership". 7) It appears to be the case that in June 1999 the managing director of the first respondent said to Mr Gough that the relationship between Caterpillar and Gough & Gilmour was over and that Mr Gough should sell his shares. It also appears to be the case that Mr Gough was assured that Caterpillar would assist in the sale process. Did unfairness arise out of the fact that upon being advised in September 2000 that negotiations between the applicants and Westrac had broken down that shortly thereafter the first respondent issued notices to terminate the dealership agreements without further consultation with the applicants as to the causes of the breakdown and without inquiring what assistance the first respondent might provide in accordance with the alleged assurance given by Mr Curfman in June 1999? Alternatively, was it so manifestly apparent that the applicants were engaging in tactics designed to sabotage the negotiations that nothing could have been gained from offering assistance to the applicants? 8) Whether it would be contrary to the public interest for potentially a large number of employees to be made redundant on 90 days' notice as a consequence of the respondents' decision to terminate the dealership. The respondents have offered certain assurances in this regard. However - and not through any lack of good faith on the respondents' part - the Court remains to be satisfied that that the jobs of a large number of employees are not in jeopardy. How is the Court to be certain, for example, that if the termination were to proceed that Westrac would move quickly to purchase the shares at a fair price and employ all or even the majority of the employees of the first applicant on fair and reasonable terms? What happens to the employees if no sale has been effected by 15 December 2001? There may be some force in the respondents' submission that through procrastination and the delaying tactics employed by the applicants in negotiating the sale of assets and shares to Westrac, the applicants are to blame for jeopardising the continued employment of their own employees. However, there may equally be some force in the submission that at least part of the blame lies with Westrac for the tactics it adopted in the sale process and with the respondents for allegedly failing to offer any assistance, as allegedly promised, to the applicants once the negotiations with Westrac broke down.

63 Notwithstanding the fact that the Court has received most of the evidence in the proceedings, none of the respondent's affidavits have yet been read and objections dealt with. Moreover, all of the respondents' witnesses are still to be cross-examined and in a number of respects this cross-examination may be significant. I refer particularly to the cross-examination of Mr Nitto, Mr Curfman, Mr Barrett and Mr Gammel - all who played key roles in relation to various matters in contest between the parties.

64 I consider that this is a classic case for the application of what might be considered a rule in this jurisdiction laid down by the Full Court of the Industrial Court of New South Wales (Fisher P, Hungerford and Peterson JJ) in Nagle v Tilburg (1993) 53 IR 8 at 10-12 that: …whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings, that is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, it seems to us, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made.

65 I am not satisfied that I have the necessary material to reach a clear and final decision in this matter as to whether or not the dealership agreements are unfair or have become unfair by reason of the conduct of any party. It follows that I am in no position to agree with the respondents' submission that there is no serious question to be tried because there is no unfairness. On the contrary, the Court is firmly of the view that there is such a serious question to be tried.

Serious question to be tried - contractual relief 66 Mr Connock, for the respondents, submitted that even if the Court took the view there was a serious question to be tried regarding unfairness, there was no serious question to be tried as to whether the Court would grant the contractual relief of the kind sought. Mr Connock's submissions in this respect traversed similar ground to that covered by Mr Hall in his submissions on power, albeit in a different context.

67 Essentially, it was contended for the respondents that even if it was assumed that the four assurances alleged to have been given to the applicants were in fact made and that they were relied upon, the question remained as to whether the reliance alleged caused detriment to the applicants of a kind that would justify the making of the variations to the dealership agreements as sought by the applicants in their third further amended summons. It was submitted that not only was there no serious question to be tried on this issue but that it was plain there could be no prospect of the Court granting such relief in the circumstances of the case.

68 It was submitted for the respondents that an analysis of the applicants' position showed the following:

1. If it were assumed that the applicants did in fact rely on the alleged assurances, they have benefited because they have had the opportunity to be a Caterpillar dealer and receive "vast sums of money" as a result; 2) The position that the applicants would have been in had they not so relied on the alleged assurances was one where they would not have been a Caterpillar dealer and would not have received the many millions of dollars that they did receive and would continue to receive as a result of the sale of their shares and assets; 3) Accordingly, the loss of the Caterpillar dealership: a. Is not a detriment suffered by reliance upon the alleged assurances; b. Does not give rise to unfairness of a kind justifying the variations the applicants sought to make to the dealership agreements. 69 Mr Connock submitted that insofar as reliance by the applicants on the alleged assurances was said to have resulted in the incurring of additional expense, contractual liabilities or the loss of opportunity, these were all financial matters. That is, they did not warrant the granting of contractual relief of the kind sought. Further, that with respect to these financial matters, it did not follow that they were amounts that could be recovered. Whether these amounts could be recovered would depend upon an analysis of the financial detriment (if any) that the applicants suffered by allegedly relying on the alleged assurances. As the applicants did not suffer any financial detriment there could be no compensation justified under s 106(5). Indeed, the applicants enjoyed a financial benefit by relying on the alleged assurances and to grant the relief sought would be to unjustly enrich the applicants. It was further submitted that even if there was some financial detriment suffered by the applicants it would not justify the contractual relief sought and damages would be an adequate remedy. Finally, on this issue Mr Connock contended that a Court would not, in the exercise of its discretion, make orders forcing parties to stay together in circumstances where it is acknowledged that mutual trust, respect and cooperation is at the heart of the relationship and there could be no realistic prospect of those characteristics being present.

70 Mr Connock's submissions on this point were based on the doctrine of promissory estoppel, it having been earlier contended by Mr Hall that the applicants' case was a classic example of a promissory estoppel argument. That is, the applicants claimed that in entering into the dealership agreements they relied upon an assumption that the agreements would continue, save for serious and wilful misconduct on the part of the applicants or poor performance, and this assumption was induced by the respondents by the giving of the alleged assurances described in the third further amended summons for relief. As a consequence of this reliance, the applicants claim they suffered detriment.

71 Mr Connock submitted, in effect that as the applicants' case had been run along promissory estoppel lines the doctrine of promissory estoppel dictated that any remedy was governed by the concept of 'minimum relief necessary to do justice between the parties': Verwayen at 416 per Mason CJ. This, it was submitted, did not involve fulfilling the applicants' alleged expectations of a dealership that would be ongoing unless terminated for cause. Instead, the available remedy, at least insofar as reliance on the alleged pre-contractual assurances was concerned, was one of putting the applicants in the position in which they would have been had they not relied upon the alleged assurances. And had they not relied on the alleged assurances, they would not have entered into the dealership and would not have made the millions of dollars they did. Therefore, there was no detriment.

72 As I have already stated, the relevant test to be applied under the doctrine of promissory estoppel is different from the statutory test this Court is required to apply. Nevertheless, as I earlier conceded, it may be helpful, in applying the relevant test under s 106, to have regard to equitable principles. Under s106 it is a question of whether there has been unfairness - a very broad test - which can be remedied by avoiding or varying the offending contract or arrangement and, in appropriate cases, providing for compensation that is considered just in the circumstances. Under promissory estoppel, a central question is whether a party has suffered detriment by relying on representations. If so, any relief will be such as to put the relying party in the position in which he or she would have been had the assumption relied upon never been induced. This is not to say, however, that courts will not enforce expectations as a means of protecting reliance, especially if it is the only satisfactory way in which to put the relying party in the position in which he or she would have been in had the assumption never been induced: Michael Spence, 'Australian Estoppel and the Protection of Reliance' (1997) 11 Journal of Contract Law 203 at 219.

73 On Mr Connock's analysis, even if I were to find that the applicants relied on the alleged assurances, the applicants suffered no detriment. However, if I were to find that the assurances were in fact given and the applicants relied upon those assurances in entering the dealership agreements and in making significant investments in the business in the belief that the dealership agreements would be on-going save for serious and wilful misconduct or poor performance, and such an expectation was nullified by the unconscionable conduct of the respondents, it seems to me that this has the potential to cause unfairness. On the other hand, if I were to apply promissory estoppel principles, the respondents contend I would not vary the dealership agreements in the manner sought because I would be providing disproportionate relief to the detriment suffered by going well beyond the rule of putting the relying party in the position in which he or she would have been had the assumption never been induced. Indeed, it was submitted, I would be unjustly enriching the applicants by making the dealership agreements even more profitable than hitherto had been the case.

74 The issue of whether the Court would grant the contractual relief sought by the applicants is a most difficult one. I am yet to be convinced that even if I were to find unfairness that I would grant the orders sought by the applicants, in any of their alternative forms, to vary the dealership agreements. However, I hasten to add that the issue is not closed and nor should it be until I have all of "the necessary material to reach a clear and final decision on the question".

75 Other considerations that go to whether I would grant the relief sought if there were unfairness includes the evidence that the respondents regard the relationship as having broken down and that the important elements of trust and confidence have evaporated. Should the relationship be maintained in the manner sought by the applicants where one party to the agreement regards the relationship as irreconcilable and where Mr Gough has indicated his mistrust of key people within the first and second respondents?

76 I note Mr Kimber's submissions regarding the relevance of trust and confidence in the context of a continuing relationship involving a contract for personal services and that trust and confidence are concepts of degree: See Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186. I respectfully agree with the sentiments expressed by the Full Court in Perkins that what is important is whether there is sufficient trust to make the relationship "viable and productive". This, of course, is an issue in these proceedings. What may also be relevant, however, is the view expressed by Peterson J in Teletech No. 4 regarding the relevance of trust in a contractual relationship and in the absence of that trust the inappropriateness of ordering preservation of the relationship (in that case, on existing terms). Similarly, in Garry Rogers Motors, Finkelstein J expressed the view that once confidence and trust has broken down the position is not easily restored and that "It is not unconscionable to terminate a relationship where that trust and confidence has been undermined".

77 Mr Kimber made submissions regarding the Court's power to "renovate" or "patch" existing contracts (see Davies 373-374 ; Canberra Star Motors Pty Ltd v Chrysler Jeep Automotive Distributors Australia Pty Ltd [1999] NSWIRComm 310), even beneficial contracts (see Canizales v Microsoft Corporation (2000) 99 IR 426; Barclays Australia Investment Services Ltd v Nordby (1995) 99 IR 258. However, I also note the views expressed by Peterson J in Scanruby where his Honour observed that it is not the purpose of s 106 to make a profitable venture more profitable in the absence of some other feature that attracts relief.

78 Of course, even if I found unfairness in making any orders to remedy the unfairness I would not be limited to the relief sought by the applicants in terms of variations to the dealership agreements. If, for example, the dealership agreements were found to be unfair because of what might be regarded as an unreasonable period of notice to terminate the agreements without cause, it may simply be that a longer period of notice is the appropriate remedy, together with any compensation considered to be just in the circumstances of the case. Accordingly, I find that there is a serious question to be tried, firstly, whether there was unfairness and, secondly, whether the Court would grant the contractual relief sought.

Balance of Convenience 79 The respondents contended that the balance of convenience was against the granting of the interlocutory relief for the following reasons:

1. If the second and third applicants had suffered any financial detriment by reason of the alleged reliance then this is a matter to be addressed in due course; 2) Customers and staff will not be in a worse position in the event that a sale to Westrac proceeds; 3) If agreement cannot be achieved between Westrac and Gough and Gilmour, Caterpillar will take such steps as are necessary to ensure that customers are serviced and a new dealership will be established by Westrac; 4) As the documents received by the applicants' banks on 27 and 28 September 2001 demonstrate, Gough and Gilmour have intentionally been silent about alternative plans despite informing their banks of the same; 5) If there was any basis for the alleged risks to customers and staff (which is disputed) it is caused by the applicants' conduct in refusing to continue with the negotiation process with Westrac so as to hinder the prospect of any sale. An applicant cannot seek to pray in aid of an application for interlocutory relief alleged consequences or prejudice to third parties which it has caused or contributed to; 6) The granting of interlocutory injunctions would have the effect of granting final relief in respect of the period the subject of any injunction; 7) The applicants have not come to the Court with clean hands. For example, the applicants' evidence positively misled the parties and the Court regarding the existence of legal advice and the applicants' knowledge of its legal position and available remedies. 80 An affidavit of Mr Peter William Forsyth was tendered by the respondents in relation to matters going to the balance of convenience. Mr Forsyth is the first respondent's district manager for New South Wales and the Australian Capital Territory. In his affidavit Mr Forsyth deposed that the proceedings before the Court are hindering the first respondent's ability to implement programs, initiatives and ideas within his territory and are affecting customer sales and service.

81 Notwithstanding the respondents' submissions, I consider that the balance of convenience lies with the granting of interlocutory relief to the applicants. My reasons are as follows:

1. The proceedings are two-thirds completed in terms of hearing dates. Given that there are serious questions to be tried, the balance of convenience lies with completing the trial. 2) If interlocutory relief were not granted, the applicants would be denied the opportunity of pursuing the primary relief that they seek in circumstances where the Court has not heard all of the evidence. 3) If the interlocutory relief is not granted and the dealership agreements are terminated on 25 October 2001, the applicants are likely to suffer harm and embarrassment both financially and contractually and perhaps harm to their reputations. 4) The respondents were prepared to extend the termination date to 15 December 2001 as a compromise on the question of interlocutory relief. The hearing of the case is scheduled to be completed in February 2002. 5) It may be that damages would be an adequate remedy but I do not consider myself to be in a position at this stage of the proceedings to make that judgment. 6) Whilst the business of the respondents is being hindered and to some extent disrupted by the continuation of these proceedings, I do not consider Mr Forsyth's evidence to be such as to lead me to the view that the balance of convenience lies in favour of the respondents. The applicants are continuing to perform as close to normalcy in the dealership as circumstances permit. 7) Despite the assurances given by the respondents in relation to employees of the first applicant, I have reservations about their fate if the dealership agreements were to be terminated on 25 October 2001. The history of the sale process does not engender any confidence in me that there would be a smooth transition of the dealership within a reasonable period and that jobs would not be placed in jeopardy. Orders

82 I propose to make orders the effect of which would be to keep the dealership agreements on foot until further order and in the intervening period to prevent the respondents taking any steps inconsistent with or prejudicial to the ongoing operation of the dealership. I note that the applicants have given the usual undertakings as to damages.

83 The parties are to confer on the terms of any orders. If there is no agreement, I will hear the parties as to the terms of the orders at 4.00pm today. Costs are reserved.

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.