NUTRIEN AG SOLUTIONS LTD -v- KAYE LORRAINE ANDREWS AND TERRY COLIN ANDREWS... [2023] WASC 96 | Case summary

Supreme Court of WA|2023-03-28|Before: Archer J

For the reasons given above, I consider that Nutrien has shown a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. Nutrien has established a prima facie case that cl 24.1 is enforceable. An injunction would prevent the Andrews from acting in breach of that clause.
I consider that the injury Nutrien would be likely to suffer if an injunction were refused outweighs the injury that the defendants would suffer if an injunction were granted. In my view, it would not be just to confine Nutrien to a remedy in damages.

Accordingly, I consider that the interim injunction should remain in place until after the trial in this matter or further order. I will hear from the parties as to the form of the final orders and as to costs.

[1] Affidavit of Justin Ryan Lynn dated 14 February 2023 (Lynn Affidavit) [8].

[3] Lynn Affidavit [25] - [28]. See also Lynn Affidavit, Attachment JRL-2 (Affiliate Agreement) Part 4 cl 5.7 (Lynn Affidavit page 109) and cl 6 (Lynn Affidavit page 111).

[4] Lynn Affidavit [9(c)], [17] and [25] - [28].

[5] Formerly called 'Landmark Operations Limited' - see Lynn Affidavit [6].

[6] Lynn Affidavit [50]. Although Mr Lynn said 'west', this was plainly a typographical error.

[7] Lynn Affidavit [53] - [58] and affidavit of Terry Andrews filed on 21 February 2023 (Andrews Affidavit) [9].

[8] Andrews Affidavit [9] - [12]. See also Lynn Affidavit [53] ‑ [64].

[9] Affiliate Agreement (Lynn Affidavit page 94).

[10] Affiliate Agreement Part 1 item 2 (Lynn Affidavit page 93), Part 2 (page 94) and Part 4 cl 13 (page 117).

[11] Affiliate Agreement Part 1 Item 1 and Part 2 cl 1 (Lynn Affidavit pages 93 and 94).

[12] Affiliate Agreement Part 1 item 8 (Lynn Affidavit page 93).

[13] Affiliate Agreement Part 2 cl 1 (Lynn Affidavit page 94).

[14] Affiliate Agreement Part 4 cl 2 (Lynn Affidavit page 105).

[15] Affiliate Agreement Part 4 cl 1.1 (Lynn Affidavit page 104).

[16] See under the heading 'Has Nutrien made out a prima facie case?'

[17] Affiliate Agreement Part 4 cl 21.11 (Lynn Affidavit page 125).

[18] Affiliate Agreement Part 4 cl 3.4 (Lynn Affidavit page 106).

[19] Lynn Affidavit [20]. Strictly, the evidence was that one of Nutrien's key competitors is 'Elders Limited and the Elders group of companies'. However, the parties proceeded on the basis that the fourth defendant itself was one of Nutrien's key competitors.

[24] See Nutrien's oral submissions at ts 52, to which the defendants did not respond.

[26] Lynn Affidavit, Attachment JRL‑7, pages 166 - 167.

[29] See Lynn Affidavit, Attachment JRL‑19 (Canola Orders Email), page 182.

[30] See Lynn Affidavit [121] - [139].

[31] Canola Orders Email (Lynn Affidavit page 182).

[32] See under the heading 'The evidence'.

[33] Affidavit of Jessica Sarah Chapman filed 24 February 2023 (Chapman Affidavit) page 4 (Elders Agreement).

[34] See the definition of 'Post Completion Business' in the Elders Agreement (Chapman Affidavit page 12).

[35] From the unredacted parts of the Elders Agreement and from the evidence of Mr Andrews.

[36] Andrews Affidavit [28] - [30].

[37] Clause 4 of the Elders Agreement (Chapman Affidavit page 14).

[38] Lynn Affidavit, Attachment JRL‑13, page 176.

[39] Being three months from the termination notice of 16 November 2022: see Affiliate Agreement cl 3.4 (Lynn Affidavit page 106). The holding over clause applied as the term expired on 28 February 2021: see Affiliate Agreement Part 1 items 4 and 5 (Lynn Affidavit page 93).

[40] Lynn Affidavit [106] and Attachment JRL-14 page 177 (Customer Letter).

[41] See under the heading 'The evidence'.

[44] Affidavit of Penelope Helen Ford (Ford Affidavit) pages 7 and 30.

[47] Put into list form, with the relevant case cited in the footnote to each paragraph.

[48] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87].

[51] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 [131]. See also the cases cited in footnote 160 and Bedshed Franchising Pty Ltd v Battersby [2015] WASC 224 [69].

[52] In Sino Iron [131], it was said that, 'in an interlocutory injunction application in equity's exclusive jurisdiction [ie its jurisdiction over matters in which a court of equity alone has jurisdiction to grant relief], the question of whether damages or other remedies at law are adequate does not arise'.

[55] Put into list form, with the relevant case cited in the footnote to each paragraph.

[58] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [11].

[60] Perron Investments Pty Ltd v Tim Davies Landscaping Pty Ltd [2009] WASCA 171 (Newnes JA, with whom McLure JA, as her Honour then was, and Pullin JA agreed), quoted in Bedshed Franchising [67].

[63] Bedshed Franchising [72], citing Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729, 734.

[64] The First, Second and Third Defendants' Submissions for the Setting Aside of Interim Orders filed 24 February 2023 (Andrews' Submissions) [14].

[65] Supplementary Affidavit of Justin Ryan Lynn filed 24 February 2023 [16] - [21].

[68] Lynn Affidavit, Attachment JRL-20, page 185.

[69] Lynn Affidavit, Attachment JRL-20, pages 184 ‑ 185.

[70] Lynn Affidavit, Attachment JRL-20, page 183.

[71] ts 115 and ts 123. See also ts 139.

[72] Canola Orders Email (Lynn Affidavit page 182).

[73] Andrews Affidavit [22(s) ‑ (u)].

[74] Lynn Affidavit [106] and Customer Letter (Lynn Affidavit, Attachment JRL‑14, page 177).

[77] See Lynn Affidavit [106] - [109] and Attachment JRL‑15 page 178.

[79] Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169 [6] and [8] (McLure JA, as her Honour then was, with whom Buss JA, as his Honour then was, agreed).

[80] Smith [7] (McLure JA, as her Honour then was, with whom Buss JA, as his Honour then was, agreed). See also Southern Cross Computer Systems Pty Ltd v Palmer (No 2) [2017] VSC 460 [4].

[81] Andrews' Submissions [10], ts 97 and ts 100.

[82] Outline of Submissions in support of Plaintiff's Application for Interlocutory Injunction filed 15 February 2023 (Nutrien's Submissions) [30(c)].

[83] Nutrien's Submissions [31], citing Fitzgerald v Masters [1956] HCA 53; (1953) 95 CLR 420, 426 ‑ 427 (Dixon CJ & Fullagar J).

[85] Tokio Marine & Nichido Fire Insurance Co Ltd v Hans Bo Kristian Holgersson trading as Holgerssons Complete Home Service [2019] WASCA 114 [63].

[86] Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11; (2019) 99 NSWLR 317, 322 [6] - [10] (Leeming JA, with whom Payne & White JJA agreed).

[87] Gourmania Holdings Pty Ltd v Schlegel [2021] WASCA 28 (Mitchell JA & Hill J) [191]. See also [67] (Buss P).

[88] Gourmania Holdings (Mitchell JA & Hill J) [192].

[94] Black Box Control Pty Ltd v Terravision Pty Ltd [2016] WASCA 219 [42(9)], citations omitted. See also Electricity Generation and Retail Corporation trading as Synergy v EIT Kwinana Partner Ptd Ltd [2022] WASCA 3 [230].

[96] Citing Geraghty v Minter (1979) 142 CLR 177, 180 ‑ 181 (Gibbs J).

[97] Andrews' Submissions footnote 16 to [10(d)].

[98] See Carter on Contract (online version) [27‑330].

[99] See Just Group Ltd v Peck [2016] VSCA 334; (2016) 344 ALR 162 [38(b)].

[100] See Birdanco Nominees Pty Ltd [2012] VSCA 64 [37] and Findex Group Limited v McKay [2020] FCAFC 182 [76] ‑ [87].

[101] Gourmania Holdings (Mitchell JA & Hill J) [192].

[102] For an analogous example, see Just Group [40] ‑ [42], setting out the construction of the trial judge (which was not challenged in the appeal).

[103] Carter on Contract (online version) [27-370] and [27-380].

[104] See generally Carter on Contract (online version) [27-360].

[109] Lynn Affidavit [50] - [52] and [64] - [68].

[110] Nutrien's Submissions [41] - [42].

[114] This did not appear to be in dispute. See for example ts 119.

[115] This did not appear to be in dispute. See for example ts 119.

[117] Fourth Defendant's Outline of Submissions filed 24 February 2023 (Elders' Submissions) [14].

[127] The first seven factors are listed in Carter on Contract (online version) [27‑380]. In relation to the last, see Stacks Taree Pty Ltd v Marshall [No 2] [2010] NSWSC 77 [44(e)].

[132] Affiliate Agreement cl 24.1 (Lynn Affidavit page 128).

[134] See the discussion under the sub‑heading 'Financial interests/customer connections'.

[136] See the discussion under the sub‑heading 'Financial interests/customer connections'.

[137] Affiliate Agreement cl 24.1 (Lynn Affidavit page 128).

[138] See the discussion under the sub-heading 'Financial interests/customer connections'.

[140] And see, as cited by Nutrien at ts 143, Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd [1973] HCA 40; (1973) 133 CLR 288, 320. See also Extraman (NT) Pty Ltd v Blenkinship [2008] NTSC 31; (2008) 23 NTLR 77 [79].

[142] Fourth Defendant's Further Written Submissions (Elders' Further Submissions) [11].

[144] Stacks Taree [44(e)]. See also Habitat 1 Pty Ltd v Formby (No 2) [2017] WASC 331 [74] and [182] and Vision Eye Institute Ltd v Kitchen [2014] QSC 260 [266].

[145] See Black Box Control [42(3)-(5), (7) and (8)].

[146] ts 132 ‑ 133. The Andrews made a similar submission - see ts 100.

[147] Compare Elders' Further Submissions [12] ‑ [13] and [22] with the second sentence in [15]. I note that the cases cited in the footnote to [15] do not support the proposition that a clause 'must state' this.

[148] Hanna v OAMPS Insurance Brokers Ltd [2010] NSWCA 267 [11] ‑ [12].

[149] And see Rentokil Pty Ltd v Lee [1995] SASC 5318; (1995) 66 SASR 301, 306 ‑ 307 (Doyle CJ), 327 (Matheson J) and 341 (Debelle J).

[150] Elders' Further Submissions on uncertainty dealt with restraint clauses that imposed a single covenant. See [22] - [25].

[151] Elders' Further Submissions [26].

[153] Findex Group [144] and [147].

[154] Elders' Further Submissions [26].

[155] Submissions in Response to Fourth Defendant's Further Written Submissions filed 8 March 2023 [22] ‑ [24].

[156] Sear v Invocare Australia Pty Ltd [2007] WASC 30 [40] - [41].

[157] Elders' Further Submissions [24].

[158] In Lloyds Ships Holdings Pty Ltd v Davros Pty Ltd [1987] FCA 70; (1987) 17 FCR 505, a covenant with 120 combinations was upheld.

[159] By way of example, see Extraman [43] ‑ [46], in which the court considered the proper construction of the clause in determining the number of alternatives.

[160] See Findex [83] ‑ [87], [98] ‑ [100] and [112] ‑ [113].

[161] Findex Group [144] ‑ [147]. See also Habitat 1 [169] ‑ [181].

[163] And see Rentokil (306 ‑ 307) (Doyle CJ), 327 (Matheson J) and 341 (Debelle J).

[164] Elders' Submissions [25]. See also ts 132 and ts 134.

[166] See under the heading 'Is clause 24.1 uncertain (and therefore void)?'

[168] Elders' Further Submissions [27], citing Habitat 1 [170]. In that case, Banks‑Smith J severed the words 'and Melbourne' from the smallest of the restraint areas defined as 'Perth and Melbourne' - see [29] and [179] ‑ [180].

[169] Elders' Further Submissions [28], citing, among other cases, Findex [149].

[170] Elders' Further Submissions [28].

[171] Elders' Further Submissions [30].

[175] See the discussion under the sub-heading 'Financial interests/customer connections'.

[178] Nutrien's Submissions [49] - [55].

[179] Ford Affidavit, Attachment PHF‑7, page 30 [42].

[180] Lynn Affidavit, Attachment JRL‑14, page 177.

[181] And see Emeco International Pty Ltd v O'Shea [2012] WASC 282 [20] ‑ [22] (Edelman J), cited in North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [2023] WASC 73 [45].

[182] Andrews Affidavit [27] - [30].

[183] Andrews' Submissions [11] - [12]

[184] Clause 5 of the Elders Agreement (Chapman Affidavit pages 15 - 16).

[192] Supplementary Outline of Submissions in support of Plaintiff's Application for Interlocutory Injunction filed 24 February 2023 (Nutrien's Further Submissions) [15].

Examples may be found in linguistic errors, such as 'inconsistent' being read as 'consistent' in Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 53, or conceptual errors, such as 'lessor' being read as 'lessee' in McHugh Holdings Pty Ltd v Newtown Colonial Hotel Pty Ltd (2008) 73 NSWLR 53; [2008] NSWSC 542. The language of a contract is not read like a computer program, such that any slip is fatal.
Two conditions are necessary in order to correct the contractual language in this manner: (a) that the literal meaning of the contractual words is an absurdity and (b) that it is self‑evident what the objective intention is to be taken to have been: see Mainteck Services Pty Ltd v Stein Heurtey SA (2014) 89 NSWLR 633; [2014] NSWCA 184 at [117] ‑ [119], approving National Australia Bank Ltd v Clowes [2013] NSWCA 179; 8 BFRA 600, where it was stated at [34]:

Likewise, in the United Kingdom, the court must be satisfied both as to the mistake and the nature of the correction: Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429; [2011] 1 WLR 770 at [21] (Lord Neuberger); Arnold v Britton [2015] AC 1619; [2015] UKSC 36 at [78] (Lord Hodge).
The court must be satisfied of those matters to a high level of conviction. To use the language of Dixon CJ and Fullagar J in Fitzgerald v Masters at 426 ‑ 427, it must be 'clearly necessary in order to avoid absurdity or inconsistency'. As this Court said in Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297 at [18], the test of absurdity is not easily satisfied. Any question of absurdity or inconsistency must be identified according to established principles, by reference to the text of the agreement as understood in its factual and legal context: Wyllie v Tarrison Pty Ltd [2007] NSWCA 184 at [46]; Newey v Westpac Banking Corporation [2014] NSWCA 319 at [85]. Courts which are asked to delete, insert or rewrite part of a contract because of what is said to be an obvious error should bear steadily in mind that imperfections and infelicities and ambiguities in contractual language commonly reflect the give and take of negotiations, or the parties' appreciation that some obscurities are incapable of resolution. As Lord Hoffmann explained, the court does 'not readily accept that people have made mistakes in formal documents': Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101; [2009] UKHL 38 at [23].
These observations were endorsed by the Court of Appeal in Gourmania Holdings Pty Ltd v Schlegel.[87] The Court went on to observe:[88]

NUTRIEN AG SOLUTIONS LTD -v- KAYE LORRAINE ANDREWS AND TERRY COLIN ANDREWS as trustees for THE ANDREWS FAMILY TRUST [2023] WASC 96 (28 March 2023)

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