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[2025] NSWDC 483
General information, not legal advice.
District Court of NSW
2025-11-25
Catsanos SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Park Pty Ltd v Jaggi Pty Ltd [2025] NSWDC 483
Hearing dates: 4 - 5, 12 March 2025
Date of orders: 25 November 2025
Decision date: 25 November 2025
Jurisdiction: Civil
Before: Catsanos SC DCJ
Decision: (1) Judgment for the plaintiff against the defendants in the sum of $109,778.24.
(2) On the crossclaim, judgment for the cross-claimant against the cross-defendant in the sum of $27,199.
(3) I reserve all questions of costs and interest.
(4) If the parties are able to agree on costs and/or interest, Short Minutes of Proposed Order are to be emailed to my Associate by 2 December 2025. To the extent that agreement is not reached in relation to appropriate orders, I make the following Directions:
(a) The plaintiff/cross-defendant is to provide written submissions to my Associate by 2 December 2025 not exceeding five pages as to the orders contended for costs and/or interest.
(b) The defendants/cross-claimant are to provide written submissions to my Associate by 9 December 2025 not exceeding five pages as to the orders contended for costs and/or interest.
(5) Unless further submissions are required, I will determine questions in relation to costs and interest in Chambers.
Catchwords: CONTRACTS – construction of commercial contracts – whether earlier agreement superseded by subsequent agreements – whether defendant liable for ongoing fees pursuant to the terms of the contract after the contract was terminated – construction of contractual provisions governing freight charges – construction of contractual provisions for payment of cost of signage and equipment following termination
GUARANTEE – whether director’s guarantee in earlier agreement extends to liability in subsequent agreement between same parties – interpretation of all monies clause – alternatively whether guarantee in earlier agreement incorporated into later agreement between same parties
CONTRACTS – crossclaim – whether cross-claimant establishes breach of contractual term to provide equipment – whether cross-claimant proves loss based on cash payments – whether cross-claimant establishes cross-defendant acted unconscionably within meaning of s 21 Australian Consumer Law – whether cross-claimant establishes entitlement to damages for detinue and conversion
Legislation Cited: Competition and Consumer Act 2010 (Cth) Sch 2 – Australian Consumer Law, ss 21, 22
Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
Electricity Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Lavigne v Kumar [2020] NSWSC 1120
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5
Category: Principal judgment
Parties: Park Pty Ltd (Plaintiff/Cross-Defendant)
Jaggi Pty Ltd (First Defendant/Cross-Claimant)
Akshit Jaggi (Second Defendant)
Representation: Counsel:
M Barnes (Plaintiff/Cross-Defendant)
D Parish / L McIntyre (Defendants/Cross-Claimant)
Solicitors:
Heard McEwan Legal (Plaintiff/Cross-Defendant)
Brander Smith McKnight Lawyers (Defendants/Cross-Claimant)
File Number(s): 2023/00124003
Publication restriction: Nil
The plaintiff, Park Pty Ltd (Park) is a wholesale supplier of petroleum products. The first defendant, Jaggi Pty Ltd (JPL) was the proprietor of a service station at Berridale in New South Wales. The second defendant, Akshit Jaggi (Mr Jaggi), is the sole director of JPL.
Broadly speaking, these proceedings involve a dispute arising out of commercial agreements between the parties relating to the supply of fuel and equipment by Park to JPL.
Whilst there are some areas of factual contest, as it distilled, the case is predominantly concerned with issues of contractual construction.
On 14 August 2018, soon after JPL commenced operating the Berridale service station, Park and JPL entered into a commercial arrangement pursuant to which Park agreed to provide JPL with credit for the purchase of fuel. That agreement was embodied in a document described as “Application for Commercial Credit” (the Credit Application). Attached to the Credit Application were Terms and Conditions of Trade and a personal guarantee executed by Mr Jaggi.
At that time, the Berridale service station was branded as a “Caltex” service station.
Over the months that followed there was a course of dealings between the parties reflecting the commercial arrangements provided for in the Credit Application.
On 19 June 2019 Park and JPL entered into three separate but related agreements which were described as:
Fuel Supply Contract (FSC).
Park Supply Agreement (the Supply Agreement).
Signage Agreement (the Signage Agreement).
These three agreements, which I will refer to collectively as the “2019 Contracts”, broadly speaking, put in place and regulated arrangements whereby the Berridale service station would be rebranded as a “Mobil” service station, selling Mobil branded petroleum products supplied by Park, with Park to also supply certain equipment and signage as part of the rebranding process.
Park claims damages from JPL for alleged breaches of the 2019 Contracts. Park also seeks damages from Mr Jaggi as guarantor of JPL’s liabilities.
The defendants mount various arguments against the claims advanced by Park and resist the operation of the guarantee provided with the Credit Application. JPL also brings a crossclaim for alleged breaches by Park of the 2019 Contracts, as well as claims under the Competition and Consumer Act 2010 (Cth) Sch 2 - Australian Consumer Law (ACL), and claims in detinue, conversion and trespass to goods related to certain Caltex signage and equipment removed by Park to facilitate the rebranding of the Berridale service station.
In the running of the trial the parties refined many of the issues, with some of the pleaded claims ultimately not being pressed, or otherwise significantly narrowed. It is unnecessary in the circumstances to outline the facts and evidence in more detail, as the disposition of Park’s claims, and in turn the crossclaim, will expose the issues which divide the parties. In determining those issues, I will refer to the substance of the parties’ positions without necessarily repeating all of their submissions.
Park seeks damages reflecting a contractual obligation on JPL under the FSC to pay what is described as a “Low Volume Fee” in circumstances where JPL failed to buy a prescribed amount of fuel.
Clause 4.1.1 of the FSC provides:
“Except as otherwise provided in this Contract, Park must supply to the Customer and the Customer must purchase from Park in each Volume Period during the Term, at least the Minimum Volume Amount of each Petroleum Product specified for that Volume Period.”
“If the Customer fails to purchase the Minimum Total Volume for a Volume Period, the Customer must pay Park the Low Volume Fee, if Park (in its absolute discretion) gives the Customer a notice requiring it to do so.”
“Volume Period” is defined in clause 1 to mean each month during the Term.
“Minimum Volume Amount” and “Minimum Total Volume” are also defined in clause 1 in terms of prescribed formula for their respective calculations.
Clause 4.7 provides the formula for calculating the Low Volume Fee.
Park claims an amount of $74,618.62 as the Low Volume Fee payable in accordance with clause 4.6.1.
The Low Volume Fee claimed can be divided into two amounts:
The sum of $33,038.62 in respect of the period up to 14 December 2022 when Park terminated the 2019 Contracts.
The sum of $41,580 in respect of the period from the date of termination until the conclusion of the (five-year) prescribed Term of the contract (being the period to 30 June 2025).
The defendants dispute the latter amount of the claimed Low Volume Fee and contend that Park is only entitled to $33,038.62, being restricted to the period up to the date of termination.
Park argues that, as a matter of construction, the position is clear and simple, namely JPL, in accordance with clause 4.1.1, is bound to purchase the Minimum Volume Amount “during the Term” (emphasis added).
“Term” is defined in clause 1 as the “Initial Term and any Subsequent Term(s) as provided by Clause 2.2”.
“Initial Term” is defined to mean “the period specified in Item 3”, and “Item” is defined to mean “an item in the Reference Schedule” of the contract.
The Initial Term is specified in the Reference Schedule as five years.
Otherwise, clause 2.1 provides:
“This Contract commences on the Effective Date and, unless sooner terminated in accordance with this Contract, continues for the Initial Term.”
Clause 2.2 provides the mechanism for implementing Subsequent Terms.
In support of its position, Park relies on an agreement between it and Mobil dated 4 February 2019 (Mobil Agreement), which is attached to the Signage Agreement. Park points out that the Mobil Agreement demonstrates Park has obligations to purchase a quota of petroleum products from Mobil over a period of 10 years. This, Park argues, puts the Low Volume Fee in context as a commercial arrangement aimed at safeguarding Park’s exposure to Mobil by imposing an obligation on JPL to pay the Low Volume Fee for the Term of the agreement, irrespective of termination of the agreement.
JPL refers to clause 4.1.2 which provides:
“If Clauses 3.6, 10.6, 14.4 or 14.8 operate to impact on the ability of the Customer during a Volume Period to meet its volume obligations under this Contract for a particular type of Petroleum Product, then the Customer’s obligation to purchase the Minimum Volume Amount of that Petroleum Product during that Volume Period will be reduced on a pro rata basis having regard to the number of days during that Volume Period which Park and the Customer agree (each acting reasonably) that any volume obligation could not be met.”
JPL observes that clause 10.6 excludes losses and liability on the part of Park for delay in the supply of petroleum products. It says the effect of incorporating clause 10.6 into clause 4.1.2 is to acknowledge that delay or lack of completion will reduce the obligation to purchase the Minimum Volume Amount on a pro rata basis, and reflects an intention that the Low Volume Fee will yield to circumstances where the ability to purchase fuel is compromised.
Otherwise, in support of its position, JPL advances the following propositions:
Consistent with common law principles, upon termination of a contract the parties are discharged from obligations of further performance. It would be commercial nonsense if liability to pay the Low Volume Fee survived the termination of the contract. Pursuant to clause 4.1.1 Park was under an obligation to supply petroleum as much as JPL was under an obligation to purchase it. Once the contract was terminated, it was impossible for either party to comply with the requirements that triggered payment of the Low Volume Fee.
On a proper construction of clause 4.6, Park is only entitled to charge a Low Volume Fee after the Volume Period (a month) has elapsed.
The Minimum Volume Amount is based on the Estimated Annual Volume, which is susceptible to change, so Park’s assumptions as to the Minimum Volume Amount are not sustainable.
The Mobil Agreement is of no relevance to the construction issues at play. JPL was not a party to the Mobil agreement and that agreement does not inform the construction of the agreement between the parties.
I accept in point of principle that with the termination of a contract comes the termination of future obligations under the contract. This is consistent with the approach taken by Darke J in Lavigne v Kumar [2020] NSWSC 1120 at [120] – [123] and the authorities discussed therein, which was relied upon by JPL in submissions.
The rationale for that approach is highlighted by the facts of this case. With the FSC at an end, there is no obligation on Park to supply petroleum products and thus it is impossible for JPL to comply with the Minimum Volume requirements. The natural outcome of Park’s argument is that JPL is liable for breaches of the contract, not only when the contract was on foot but after the contract was terminated. Absent some express contractual provision, I do not see how a party can breach a contract that is no longer operative.
Were it the imperative, the payment of lost future revenue could have been easily accommodated by a term which gave rise to a remedy for Park in the nature of liquidated damages at the time of breach. In my view, absent some express contractual provision, it is not open to Park to claim damages for breach of contract as a result of events occurring after there is no contract on foot to breach.
For those reasons, I find Park is entitled to damages reflecting the Low Volume Fee only for the period up to the date of termination of the FSC on 14 December 2022.
Against the contingency that I am wrong in that conclusion, it is necessary to consider the construction of the contract contended for by Park.
As noted, clause 4.1.1 imposes an obligation to purchase the Minimum Volume Amount each month during the Term (emphasis added).
Here, in accordance with the Reference Schedule, “Term” means the Initial Term, which is five years.
In considering the construction points raised in the present dispute, I am mindful of the guidance provided in the authorities advanced by the parties, from which can be extracted the following general propositions:
The contract is to be construed by reference to what a reasonable person would understand by the language adopted by the parties, having regard to the context in which the words are used and the purpose and object of the transaction. [1]
Commercial contracts are to be given a business-like interpretation, namely what a reasonable businessperson would have understood the terms to mean, having regard to the language used by the parties, the surrounding circumstances and the purpose of the contract. [2]
The Court should approach the interpretation fairly and broadly without an eye for defects. [3]
Park’s interpretation is a literal one. However, I do not consider it to be a business-like outcome to impose ongoing liability for Low Volume Fees in circumstances where it is impossible to take any steps to avoid those fees.
Park brings a claim for freight charges totalling $23,996.56.
The basis of that claim is that JPL is liable to pay freight costs incurred by Park when delivering petroleum products. Park alleges that in late February 2021, JPL directed Park that it would pay its own freight costs. As a result, Park for the period between 21 March 2021 and 1 November 2021, rendered invoices which did not include any freight charges.
In fact, the cartage companies continued to charge Park for the delivery costs between 21 March 2021 and 1 November 2021, which Park says it paid in error and did not pass on to JPL at that time.
JPL has refused to pay those freight charges, arguing the burden for that rests with Park.
Park relies upon clause 25 of the Credit Application which provided:
“The Customer shall pay to Park packing, crating and delivery charges in accordance with Park’s current rates as at the date of dispatch. If there is no current rate, then a reasonable delivery charge shall be paid by the Customer.”
“The cartage cost Park incurs in the delivery to the Customer is to be included in the delivered price”.
Vikki Wheatley, an accounts clerk employed by Park, gave evidence that in early 2021 she had a conversation with Riya Arora, the manager of the Berridale service station and the wife of Mr Jaggi, in which Ms Arora said JPL would arrange and pay for its own freight in order to save money.
Ms Arora disputed the evidence given by Ms Wheatley in this respect and said the conversations with Ms Wheatley around freight fees resulted in Ms Wheatley saying Ms Arora could place her orders with the cartage company known as Datona and Park would charge the freight within the delivered prices and issue invoices including the freight charge.
In cross-examination Ms Arora agreed that prior to January 2021, JPL was paying a company by the name of XTS directly for delivery costs of fuel. She agreed that from March 2021 to August 2021, Datona was the company that delivered the fuel and from August 2021 to November 2021 another company called Jettz delivered fuel.
Ms Arora gave evidence that from March to August 2021 JPL was not invoiced by Datona for deliveries of fuel and similarly did not pay Jettz for fuel delivered between August and November 2021. Ms Arora said that delivery adds four to five cents (per litre) depending on market price. Ms Arora maintained that Ms Wheatley had told her the invoices would include freight within the delivered price.
Ms Wheatley said that in November 2021, following a conversation with Gary Wiley of Datona, she discovered the delivery charges were being paid by Park, which was contrary to her understanding of the payment arrangements. She notified Park’s Chief Financial Officer, Mr Bourke of the error.
Notwithstanding the differences in the evidence given by Ms Wheatley and Ms Arora on this issue, it is unnecessary to explore that evidence in any detail. This is because in submissions both parties approached the claim for freight charges as turning on how the relevant contractual provisions are construed.
Effectively, submissions proceeded on the basis that, during the period in question, each party was of the belief that the freight charges would be paid by the other party. The outcomes contended for were based on contractual interpretations as to which party was in fact liable to pay freight charges, rather than how the conflicting evidence of Ms Wheatley and Ms Arora should be resolved.
That is a sensible approach and aligns with the factual conclusions I drew, that ultimately each witness was proceeding on a conflicting but genuinely held belief as to who would be paying the freight charges at the relevant time.
The defendants’ position is that under the FSC, freight charges were to be included in the “delivered price”. The defendants say the invoices for the period in question could thus be taken to have included the cost of delivery. The defendants rely upon the evidence of Ms Wheatley which confirms it is not possible, on the face of Park’s invoices, to discern from the amounts charged whether there is a component for freight.
“Park has paid the freight charges mistakenly and hasn’t received consideration in return from the promisee and there’s been a failure of consideration in that respect, or alternatively the defendants have been unjustly enriched but, in any event the obligation to pay the freight charges is not altered by clause 3.6, it remains at all times at the feet of the first defendant.”
“19.2 Entire Understanding
19.2.1 This Contract contains the entire understanding between the parties concerning the subject matter of the Contract and supersedes all prior communications between the parties.
19.2.2 For the avoidance of doubt any purchase order that is submitted to Park by the Customer with terms and conditions that purport to add to or vary this Contract will only be accepted as to quantity and product type. In all other respects this Contract applies to, and governs, all supplies of Petroleum Products to the Customer.”
The FSC provides a comprehensive framework regulating the purchase and supply of fuel. In the circumstances, I accept the defendants’ submission that, as a matter of construction, and having regard to the entire agreement provisions of the FSC, the Credit Application, and in particular clause 25, is superseded by the FSC.
In any event, if clause 25 of the Credit Application were to survive, in my view, it would be subject to the operation of the FSC and would not affect the construction of that agreement which follows.
I consider the words “delivered price” in clause 3.6 of the FSC to be pivotal in the determination of this issue.
The scheme of the FSC includes the regulation of the commercial dealings between the parties relating to the supply of fuel. It could hardly be disputed that it is an important part of those commercial dealings that JPL be able to order its affairs and set its price for the sale of the petrol it receives based upon the price it pays for that petrol. It takes little imagination to contemplate how a retrospective change in the price paid for the petrol could seriously undermine JPL’s operations. Notably, the system in place, and the context in which clause 3.6 is to be considered, involved invoices from Park that did not include details of freight charges within the delivered price.
In my view, applying an objective business-like interpretation, having regard to the context of the FSC, the words “delivered price” refer to a price at a point in time, namely when the fuel is delivered. “Delivered price” is not a defined term under the FSC and so should be given its ordinary meaning.
I consider that clause 3.6 operates such that the delivered price is taken to include freight costs incurred by Park, and it is not open to Park to subsequently charge for those freight costs.
Were the parties to have contemplated backdated charges for delivery, the clause could have provided some mechanism for that.
The defendants are correct that unjust enrichment/monies had and received do not arise on the pleadings. However, as the defendants submitted, such claims would be answered by a defence of changed position in the circumstances.
For those reasons, I do not allow the freight charges claimed by Park.
“12. Consequences of Termination
12.1 If this Agreement is terminated or ends due to the breach of this Agreement by the Purchaser:
(1) The Purchaser must immediately:
(a) Pay to Park the Signage & Equipment Cost;
(b) Pay to Park all amounts then owing by the Purchaser to Park, whether or not under this Agreement or otherwise;
(c) cease using the Intellectual Property and at its cost, alter the Premises and remove or change any signs, fixtures, fittings, colours and layout as requested by Park to ensure that the appearance of the Premises cannot be confused as being associated with Park/Enhance Brand; and
(d) Return the Signage Equipment to Park.
(2) Park:
(a) May exercise its rights under the Security;
(b) Retains the rights it had against the Purchaser in respect of any past breach, in addition to any other rights, powers or securities provided by law;
(c) May enter the Premises and:
(i) Remove the Signage and Equipment; and
(ii) otherwise alter the Premises and remove or change any signs, fixtures, fittings, colours and layout to ensure that the appearance of the Premises cannot be confused as being associated with Park,
and the Purchaser must not obstruct Park from doing so”.
The evidence establishes the 2019 Contracts were terminated by Park on 14 December 2022. The defendants do not challenge Park’s entitlement to terminate.
In accordance with clause 12.1, JPL became immediately liable on termination to pay the signage and equipment cost. Signage and equipment cost is defined in clause 1.1 to be “the amount calculated in item 10 of the first schedule”.
Item 10 of the First Schedule provided as follows:
“Item 10 Signage and Equipment Cost
Park, in association with Mobil, will provide the Bellingen location listed in item 5 a Site Conversion Assistance contribution.
The SCA Contribution for Berridale is $72,000 (GST Incl) based on a monthly volume of 150,000 litres as itemised by product in the Supply Agreement. Mobil Forecourt Branding is the first item to be committed for payment from this SCA. The remainder can be committed to additional site works as agreed with Park and the Purchaser.
The Amount to be paid by the Purchaser for the Signage and Equipment is determined as follows. It is used if there is early exit from the Signage Agreements provided by 180 days written notice by the Purchaser to Park Pty Ltd at its registered address.
The SCA cost to Park of Purchasing and installing the Signage and Equipment is as per Park invoice provided by Signage and Equipment suppliers. Park will write off this cost on a monthly basis over 120 calendar months from the Commencement Date (Write-off Period) so the amount to be paid by the Purchaser is:
B x (C/D)
where:
B = cost of installing the Signage and Equipment;
C = number of months left in the Write-off Period; and
D = total number of months in the Write-off Period.”
Park submits the commercial purpose of these provisions is obvious, namely that Park recovers its investment in signage and equipment in the event that agreement did not proceed for its full term.
The defendants argue no signage and equipment costs are payable because Item 10 of the Schedule ought be interpreted as providing that such costs will only arise in the event that there is early exit and 180 days of written notice provided by JPL to Park.
I do not accept that is a reasonable objective interpretation of Item 10, although I readily acknowledge that Item 10 is far from a study in clarity. As the defendants observe, there appears to be in Item 10 a remnant from some other contract concerning a Bellingen location. The reference to the formula being used “if there is early exit from the Signage Agreement provided by 180 days written notice by the Purchaser…” is also anomalous. In my view, that reference is not reconcilable with any term related to termination of the contract. Clause 11 does refer to 180 days’ notice but does not speak of the purchaser exiting early. In any event, the present case does not involve an early exit by JPL.
As I read Item 10, the anomalies to which I have referred can be put to one side as irrelevant in the present case. The formula which follows can readily be applied to termination of the agreement in accordance with clause 12. Whilst clumsy, in my view, it is clear enough that the agreement objectively reached between the parties was that there would be a signage and equipment cost in the event of termination triggered by clause 12. In short, I accept Park’s submission that whatever the 180-day notice reference relates to, it does not arise here and is not a pre-requisite for the operation of Item 10.
Otherwise, the defendants argue that if a signage and equipment cost is payable, the amount claimed, namely $93,126.44, is excessive. In support of that position the defendants point to the fact, which is common ground, that Mobil paid the sum of $52,110.92 to the suppliers of the equipment and signage on behalf of Park. The defendants contend those amounts ought be deducted from any damages payable in accordance with Item 10 of the Schedule.
Park argues the payments by Mobil ought not be taken into account because, under the Mobil Agreement, Park is liable to repay payments made by Mobil.
The defendants reject that proposition and argue there is no obligation on Park under the Mobil Agreement to repay amounts paid by Mobil towards equipment and signage. On my reading of the Mobil Agreement, the defendants’ position appears to be correct.
One is thrown back to the words of Item 10. The formula in Item 10 specifically refers to the “cost of installing the signage and equipment”. On any view of it, the cost to Park of installing the equipment in question was reduced by the amount paid by Mobil. I am not satisfied Park has established it is liable to repay those amounts to Mobil.
In those circumstances, applying the formula provided for in Item 10, I consider the amounts paid by Mobil toward the signage and equipment ought be deducted from the amounts claimed by Park. This leaves the mathematically agreed sum of $54,911.77 payable by JPL for signage and equipment in accordance with clause 12.1 of the Supply Agreement.
For the reasons outlined above, Park has established an entitlement to damages against JPL in the sum of $109,778.24, made up as follows:
Low Volume Fee: $33,038.62.
Signage and Equipment Cost: $54,911.77.
Removal Fees: $21,827.85.
Mr Jaggi is sued pursuant to two personal guarantees provided in respect of JPL’s obligations.
As mentioned earlier, one of those guarantees was attached to the Credit Application. As will be seen, this is the guarantee surrounded by controversy in these proceedings.
The other guarantee is found in clause 33 of the Supply Agreement. It is not controversial and is accepted to apply to the obligations contained in that agreement.
As the issues have crystalised, the controversy around the guarantee attached to the Credit Application (which I will refer to as “the Guarantee”) is whether it extends to guarantee JPL’s liability under the FSC, which for the reasons I have provided, translate to whether the Guarantee covers liability to pay the Low Volume Fee of $33,038.62.
The Guarantee commences with the following Recital:
“In consideration of Park and/or its Related Bodies Corporate or their respective assigns trading under various firm names or styles (‘Park’) agreeing at the request of the Guarantor (which request is testified by the Guarantor’s execution of this document) to commence or continue to supply to the Customer on credit or otherwise goods and/or services from time to time on the terms and conditions imposed from time to time by Park on the Customer the Guarantor (jointly and severally if more than one) agrees with Park as follows:”
“all monies which are now or may from time to time hereafter be owing or remain unpaid by the Customer to Park on all accounts whatsoever…”
“To Guarantee the due performance of the Customer or any other obligations owed by it to Park.”
Clause 2 stipulated that the Guarantee “shall be a continuing Guarantee”.
Park argues the Guarantee extends to JPL’s obligations under the FSC.
The starting point in Park’s submission is that clause 1(b) of the Guarantee, which guarantees performance of any “other obligations” owed by JPL, is clear and unambiguous. Park argues the work that clause has to do is to guarantee obligations other than those under the Credit Application. Whilst Park does not contend it is a guarantee at large, it argues the Guarantee nonetheless extends to liabilities related to the subject matter of the Credit Application, being the provision of credit for the supply and delivery of fuel.
In support of its claim made under the Guarantee, Park also invokes clause 9 of the FSC which deals with “Security” and, in clause 9.1, says:
“If any Securities are detailed in Schedule 4, the Customer must, as security for its obligations under this Contract, procure that each of the Securities are given to Park in the manner and form required by Park”.
“Security documents to be provided in respect of Customer’s indebtedness, obligations and liabilities (actual, contingent, defined or undefined) or other outstanding’s to Park:
1. Money outstanding from Customer to Park under this Retail Supply Contract (as may be varied or extended or shortened at any time or terminated in accordance with the Contract) are, at the effective date of this Contract, covered by the Personal Guarantee referenced in the Park Credit Account Application.”
Not only does the Guarantee in its terms extend to the FSC, says Park, but Schedule 4 of the FSC leaves the issue beyond doubt because it evinces an objective intention to incorporate the scope of Mr Jaggi’s personal guarantee into the FSC.
Mr Jaggi argues that Schedule 4 does no more than reflect the fact that two parties have agreed to construe a previous document in a certain way. However, in Mr Jaggi’s submission, this does not determine how the document is in fact construed.
Park on the contrary submits that Schedule 4 is meant to be an operative provision. Park says the contract needs to be interpreted in a common sense, business-like way. In essence, I understand Park to argue:
Mr Jaggi was a director of JPL.
Mr Jaggi clearly provided a personal guarantee under the Credit Application.
Mr Jaggi also provided an express personal guarantee in clause 33 of the Supply Agreement.
Interpreted objectively, Schedule 4 of the FSC is plain in its terms in incorporating into that agreement the personal guarantee provided with the Credit Application.
It would make no commercial sense that the other substantive agreements between Park and JPL were supported by a personal guarantee of its director Mr Jaggi, but Park contracted with JPL as a propriety limited company for the purposes of the FSC without the protection of a personal guarantee being in place.
Mr Jaggi says the Guarantee is extremely broad and objectively the clause ought not be interpreted to extend to things that were unknown and non-existent when the Guarantee was provided.
Mr Jaggi says the FSC was not objectively in the contemplation of the parties at the time the Guarantee was executed.
Mr Jaggi emphasises the fact the execution clause for the Guarantee under the Credit Application speaks of it being a continuing guarantee “for all of the Customer’s obligations under the Application for Credit Facilities…”
Mr Jaggi says the reference to “other obligations” owed to Park in clause 1(b) of the Guarantee is a reference to obligations under the Credit Application other than the payment of money and ought not be interpreted more broadly to include obligations under other agreements.
While Mr Jaggi does not take any point in relation to the fact he signed the FSC only in his capacity as a director, he says the FSC simply does not operate to incorporate a personal guarantee.
Business efficacy only goes so far, in Mr Jaggi’s submission. In the context of guarantees, Mr Jaggi argues that, consistent with established authority, any doubt should be resolved in favour of the surety.
Clearly the Guarantee is broad, and obviously the FSC was not in existence at the time the Guarantee was executed. Whether something in the nature of the FSC coming into existence in the future was in the contemplation of the parties is a matter of speculation, although the terms of the Guarantee perhaps anticipate there may be further agreements brought into existence to regulate the purchase and supply of petroleum products when it refers to “from time to time on the terms and conditions imposed from time to time by Park on the Customer…”
The Credit Application said little in relation to the details of the product to be supplied, noting only that there was a monthly requirement of a certain dollar amount and otherwise set out standard form Terms and Conditions of Trade.
The FSC dealt with supply in far more comprehensive terms, imposing various obligations on JPL and more closely regulating the dealings between the parties.
The Guarantee is capable of being read either narrowly as confined to all monies payable in accordance with JPL’s obligations under the Credit Application, or more broadly as applying to all monies payable in respect of subsequent agreements between the parties in relation to the supply of petroleum products.
When determining the construction point, one cannot ignore the clear words of the execution clause in the search for the objective intention of the parties. That clause is explicit in providing “that this guarantee will be a continuing guarantee (subject to its terms) for all of the Customer’s obligations under the A****pplication for C****redit F****acilities…” (emphasis added).
In my view, this strongly supports the proposition that the Guarantee was, as it said, a guarantee related to the Credit Application.
On balance, as a matter of construction, I am not satisfied that the Guarantee, of itself, operates to extend to the FSC.
Nonetheless, I consider the terms of Schedule 4 of the FSC to be of great significance in determining the objective intention of the parties as to the operation of that agreement.
As will be recalled, Schedule 4 speaks of obligations under the FSC being “covered by the personal guarantee referenced in the Park Credit Account Application”.
I consider Schedule 4 of the FSC to manifest a clear intention that the terms of the Guarantee were to apply to the obligations resting on JPL under that agreement. The terms of the Guarantee, in my view, readily accommodate the obligations under the FSC.
I do not consider Schedule 4, objectively read, is simply purporting to interpret the ambit of the Guarantee.
Three aspects of JPL’s crossclaim were ultimately pressed.
Firstly, JPL claims the cost of relocating and installing petrol bowsers at its Berridale service station, which it contends Park failed to supply in accordance with its obligations under the Signage Agreement.
Secondly, JPL argues that freight costs charged by Park in the period between 12 November 2021 and 21 June 2022 were rendered in breach of the FSC. Alternatively, it is alleged the freight costs charged were unconscionable within the meaning of the Australian Consumer Law.
Thirdly, JPL seeks damages for Park’s failure to deliver up certain Caltex signage and equipment which was removed to facilitate the rebranding of the Berridale service station in accordance with the 2019 Contracts.
Park admits that under the 2019 Contracts it was contractually bound to make available and install two petrol bowsers.
It is common ground the bowsers were not installed.
JPL asserts that numerous requests for the bowsers to be installed were ignored by Park. As a result, JPL obtained two petrol bowsers on loan from Mr Jaggi’s brother, Aseem Jaggi, who with his wife operated a service station at Tathra. JPL alleges it bore the costs of having those bowsers relocated and installed and claims those costs as damages caused by Park’s breach of contract.
In its submissions, Park argues that delay in the delivery of the bowsers was due to the failure of JPL expeditiously informing Park of the configuration requirements for the bowsers. JPL submits this is an opportunistic defence not reflected in the pleadings. It argues there is no evidence from Park that it would have provided the petrol pumps in any event.
This aspect of the crossclaim engages both issues of fact and construction.
Mr Jaggi deposes that after signing the 2019 Contracts in June 2019, he had an expectation that Park would provide the equipment in accordance with the Supply Agreement.
On 29 April 2020, Mr Jaggi received an email from Peter Rogers which was copied to Sam Aseem in which Mr Rogers said:
“Mobil branding looking to commence week of May 11. – Sam – have you installed the new pumps as yet”.
Mr Jaggi gave evidence that Park installed various items of signage and equipment in May 2020. The evidence shows there were communications between Park, Mr Jaggi and Ms Arora in relation to the delivery and installation of signage and equipment and that delays were encountered for various reasons.
Emails were exchanged through July 2020 which focused on issues relating to signage and a price board, with no specific reference to the bowsers.
On 27 July 2020, Ms Arora sent an email to Neil Hugglestone (who the evidence shows was associated with Mobil) and Mr Rogers, chasing up the installation of a price board. Mr Hugglestone responded to that email, expressing disappointment in relation to the delay. Later that day an email was sent by Mr Rogers to Mr Hugglestone, proposing the installation of a temporary price board.
Mr Jaggi deposed to the fact that on 7 August 2020 he received an email from Aus Petroleum Services Pty Ltd (APS) enclosing a quote for supply and installation of two bowsers.
On the same day, Mr Jaggi received an email from Mr Hugglestone providing an update on issues relating to other equipment and in particular, a canopy which had been installed but damaged when someone drove into it.
On 28 August 2020, Mr Jaggi sent an email to Mr Hugglestone in relation to the canopy and seeking an update on the price board and the suggestion that a temporary board would be installed.
On 31 August 2020, Mr Hugglestone sent an email dealing with issues related to the temporary price board and the canopy.
Mr Jaggi gave evidence that Ms Arora told him on 1 September 2020 she had left a voicemail message for Mr Rogers requesting completion of the installation of the bowsers and the price board.
Mr Jaggi next says that on 8 September 2020, Aseem Jaggi attended the Berridale service station along with representatives of APS and installed two fuel bowsers which had been relocated from Aseem Jaggi’s service station at Tathra.
In his affidavit, Mr Jaggi said that between 8 September 2020 and 1 October 2020 he received invoices from RH Jaggi Investments Pty Ltd (RH Jaggi Investments) totalling $32,200, as well as an invoice from APS for $5,000 for the relocation and installation. He exhibited those invoices, from which it is clear the APS invoice was related to installation of hoses. The claim for that amount was eventually abandoned.
Mr Jaggi said the invoices of RH Jaggi Investments were paid in cash.
Over the balance of 2020, emails were exchanged between Mr Rogers and Mr Hugglestone in relation to various issues associated with the installation of bowser decals.
Communications continued into 2021 in relation to a number of issues but not specifically in relation to the bowsers, until 6 September 2021, when Mr Jaggi wrote to a Paul Ormerod at Park saying:
“I was suppose [sic] to receive the bowsers from Mobil with the branding. Currently I am using Tathra’s bowser and now they require it back. Please let me know when are we receiving my bowers so I can give those to Tathra.”
“From an email correspondence with Peter and Neil back in September 2020 (attached) we were working on the basis there was no urgency/requirement regarding bowsers. Brendan Keegan is awaiting a response from Gilbarko regarding prices, supply and timeframes. We will keep you updated accordingly.”
“I have gone back through Peter Rogers’ email history and have come to the following:
1. Peter had sent emails on the 25-26/7/19 and again on 14/8/19 to Assem Jaggi and yourself as per attached requesting grade/pump configuration. I’ve not been able to find a reply to those requests.
2. We understand the pumps that were ordered for Tathra were installed at Berridale and the reason for this was that Tathra required linework – is this linework at Tathra complete now?
3. Once we get confirmation of point 1 above we will order the pumps for Berridale – the current lead time on new pumps is 12-16 weeks.
Please confirm where you would like the pumps delivered, Tathra or Berridale? I am thinking Tathra is the preferred location as you would not want to pay to have the pumps relocated from Berridale.”
“I have previously emailed and called many times regarding the bowsers. As per our contract we were suppose to get 2 SK700 bowsers with the branding. Peter suggested that we would receive them soon but there have been no updates. We had to rent the bowsers from Tathra site. But with current fuel pricing. I am barely selling any fuel and can’t afford to pay monthly rental on bowsers to Tathra anymore. It’s been 3 years I am paying rent for bowsers to them. My cost price is what people are selling fuel around me. I would like to get our bowsers as per my contract as soon as possible.”
“Per the attached, we are awaiting the configuration information from your side in order to proceed with ordering etc. Once you have furnished us with these details, we will be able to progress.”
“Thank you for your email. It will require the same bowsers as Tathra got delivered earlier. Best delivery would be in Tathra.”
Mr Jaggi sent emails following up on the delivery of the bowsers on 13 and 27 July 2022, emphasising that JPL had been paying rent on the temporary bowsers.
Ms Arora deposed to communications with Mr Rogers of Park in May and July 2020 relating to branding and signage. She said that on 1 September 2020 she left a voicemail message for Mr Rogers to request the completion of the installation of the two bowsers. Her account of that message is:
“We need the bowsers as soon as possible, as our current ones have almost died. Please arrange for the bowsers to be delivered and installed”.
Ms Arora said in about September 2020 she also contacted Aseem Jaggi enquiring as to whether he would be able to loan two bowsers because of the problems being experienced with the bowsers at the Berridale service station. Aseem Jaggi arranged the delivery of two bowsers.
According to Ms Arora, on 24 December 2020 she spoke to Mr Rogers to request that the bowsers be made available and installed, and she asked when those bowsers would be available.
Ms Arora otherwise verified the various emails to be found in the evidence given by Mr Jaggi.
In cross-examination Mr Jaggi said that in September 2020 one of the existing bowsers had stopped working and his wife spoke to Mr Jaggi’s brother, Aseem, which led to the bowsers being transported from Tathra to Berridale and installed by Aseem Jaggi.
Mr Jaggi was taken to the email from Mr Ormerod dated 8 September 2021 in which Mr Ormerod had said Park was working on the basis there was no urgency regarding the bowsers and the response from Ms Arora that it had not been urgent because the bowsers had been taken from Tathra, although it was now urgent because Tathra required the bowsers back. Mr Jaggi denied he was aware of Park being told there was no urgency and said:
“Whenever they’re starting a contract – because when I signed the – like, a contract, Peter know my bowser is playing up on that time. He knows that better”.
“Okay. Because I have not much knowledge about the pumps, so I call Neil on that time as well. Sorry, Neil or Peter. I’m not remember at the moment. But I called them and tell them what I need, and they know, well aware of what, what we selling over there” (Tcpt 87.05).
Mr Jaggi gave further evidence about telling Mr Rogers he wanted the same pumps that were being sent to Tathra. At one point, Mr Jaggi said Mr Rogers told him it was going to be the same pump as that used at Tathra. He was unable to specifically recall when these conversations occurred.
Mr Jaggi said he also spoke with Mr Hugglestone after Mr Rogers told him to give Mr Hugglestone a call.
Mr Jaggi denied that the first time he had told Park of the configurations required was in June 2022.
Mr Jaggi said Mr Rogers was aware the bowsers were being transferred from Tathra to Berridale in September 2020. He said this was done verbally and thought it had been emailed as well, although he was not sure. No email verifying that conversation was before me.
The evidence established that RH Jaggi Investments was the landlord of the Berridale service station.
Mr Jaggi was questioned closely in relation to the invoices rendered by RH Jaggi Investments for the relocation of the bowsers from Tathra to Berridale. Mr Jaggi said the RH Jaggi Investment invoices, totalling $32,200, were paid in cash, “because Berridale don’t have a bank”. As that evidence developed, I understood Mr Jaggi to say payments were made by cash because that was the most preferred and convenient way of making the payments.
Mr Jaggi was asked whether the cash payments related to the payment of rent rather than relocation and installation. He denied this.
Mr Jaggi was also asked about the quote from APS dated 7 August 2020 for the supply and installation of bowsers which totalled $35,000. Mr Jaggi said he spoke to the landlord of the Berridale service station, being RH Jaggi Investments, who gave approval for the relocation.
Mr Jaggi agreed his brother, Aseem Jaggi, had no qualifications in installation of petrol bowsers.
Ms Arora echoed the evidence of Mr Jaggi in relation to the delays encountered in obtaining signage and equipment from Park. She said she raised the issue that JPL had not been provided with the things the contract required … “It’s because they would never give us the bowsers as per the contract. So any time I would have a conversation I would say, ‘I would not like to go ahead like this if you won’t give me the contractual equipment and signage’”.
Ms Arora agreed that rent was paid on the bowsers for a time but maintained JPL paid for the relocation and installation costs.
It was put to Ms Arora that no notice was given to Park of the intention to relocate bowsers from Tathra to Berridale. She said:
“I called Peter Rogers on first – early of September. I think it was when all of our bowsers stopped working. I called Peter Rogers and asked him to supply the bowsers. Yeah, and then there was – but it went into voicemail. So, there was – he was the only account manager I had at that time who I could talk to”.
Ms Arora said it was necessary to arrange something urgently because the old bowsers were not working. She considered there was no obligation to tell Park that bowsers were being arranged from somewhere else because Park had not provided the bowsers as it was obliged to do under the contract.
Ms Arora agreed an email was sent in 2019 requesting pump configuration. She said the email was responded to over the telephone, although she did not elaborate. She emphasised that the configurations were provided several times over the period in question.
It is common ground that Park was contractually bound to supply two bowsers, nominated as 2 x Gilbarco SK 700 6 hose MPP’s. There is also no controversy that those bowsers were not supplied prior to September 2020, when RH Jaggi Investments relocated two bowsers from the Tathra service station to the Berridale service station.
The arguments put against breach are that JPL refused to provide the specifications required for the petrol pumps, despite being requested to do so, and instead obtained the pumps from Tathra without giving Park notice of its intention to do so. Significant emphasis was put on the proposition that if breach was established, JPL would not be accepted as having paid the cash payments to RH Jaggi Investments because of implausible evidence about that.
The contractual provisions around the detail of the supply of the bowsers are far from comprehensive, in fact they readily accommodate dispute as to the detail.
Whilst Park was obliged to provide the bowsers, it seems to me that in terms of timeframe, the only way in which that contractual provision can have any business efficacy is if one implies a term that the bowsers would be supplied within a reasonable time with each party providing reasonable cooperation. [4]
JPL organised alternative bowsers more than 12 months after the contract was entered. On the face of it, that would appear to be an unreasonable delay in the supply of bowsers by Park. As the unchallenged evidence establishes, JPL was operating with sub-standard bowsers which clearly, in a service station where dispensing petrol is the primary function, has the potential for significant adverse consequences.
In my view, the pivotal factor in determining the question of breach is whether JPL effectively thwarted the process by failing to provide details as to the grade/pump configuration to enable the installation to go ahead.
Mr Jaggi and Ms Arora accepted that a request for pump configurations had been made in 2019, although the 2019 emails are not before me. Both Mr Jaggi and Ms Arora gave evidence that the information required as to configuration of the pumps had been provided over the telephone. Basically, Mr Jaggi said it was indicated they required the same pumps as were being sent to Tathra. This ties in with the information provided by Mr Jaggi by email on 28 June 2022 referred to earlier.
It is perhaps surprising that there is no correspondence pressing for the bowsers to be supplied prior to JPL taking matters into its own hands. In particular, as noted earlier, in April 2020 Mr Rogers sent an email to Mr Jaggi and Ms Arora, copied to Sam Asseem, saying “Sam – have you installed the new pumps as yet?” I assume that is a reference to pumps being installed at Tathra. With “pumps” having been mentioned in April, there is however no reference to pumps in the context of the Berridale service station in the emails which followed in July 2020. Rather, they were focussed on installing a price board and signage. One might consider it anomalous that the urgent need for bowsers to be installed at Berridale was not the subject of any email correspondence with Park’s representatives neither in advance, nor in the aftermath, of the installation in September 2020.
“I was supposed to receive the bowsers from Mobil with the branding. Currently I am using Tathra’s bowser and now they require it back. Please let me know when we are receiving my bowsers so I can give those to Tathra.”
However, at that time no claim was made for the relocation and installation costs of the bowsers. It was put in cross-examination that the claim for those costs was initiated by the crossclaim in these proceedings.
As noted earlier, in July 2022 Mr Jaggi was complaining he was paying monthly rent on the bowsers to the Tathra service station and called on Park to provide the bowsers required under the contract. No mention of the cash payments for relocation and installation was mentioned at that time.
Inevitably the installation of the bowsers at Berridale would require specialist knowledge. I accept, given the timeframes and photographs of the work being performed, that APS was involved in some capacity in that installation. However, as the crossclaim distilled, no claim is made for fees paid or payable by JPL to APS. It is clear that RH Jaggi Investments and Aseem Jaggi were not qualified to install petrol bowsers.
When asked about this, Mr Jaggi said, “that’s why he [Aseem Jaggi] hired the Petrol Aus guys”.
Park legitimately raises issues going to the reliability of the claims made by JPL for the cost of relocating and installing the bowsers at Berridale.
However, there is no doubt bowsers were installed and that can reasonably be expected to have involved a cost, most likely borne by JPL. I know that RH Jaggi Investments was involved and that APS was at the site for the purposes of the installation. Any number of theories might be speculated to support or contest the claim for the cash payments made by JPL.
In the absence of clear evidence however, speculation is want to be a distraction. What I do have is the evidence of Mr Jaggi that Aseem Jaggi “hired the Petrol Aus guys” to do the work. This is plausible evidence in the circumstances and is consistent with RH Jaggi Investments retaining APS to provide specialist input and expertise in the installation of the bowsers. It certainly fits in with the fact that both RH Jaggi Investments and APS had a presence on site when the work was being performed.
The quote for undertaking the installation by APS dated 7 August 2020 at a cost of $35,000 referred to earlier, is generally consistent with, albeit less than, the amount invoiced and said to have been charged by RH Jaggi Investments for that work.
At the end of the day, clearly the work was done, someone had to pay for it, and the most obvious and likely party to do that was JPL.
There is no reason, on the face of it, to doubt the cash receipts provided by RH Jaggi Investments are authentic, albeit there is nothing to indicate what the payments relate to. Those payments were made fortnightly and are contemporaneous with the timeframe when the bowsers were installed. The receipts for the cash payments however amount to $27,199, being short of the $32,200 claimed by JPL. That discrepancy may be explained by the now jettisoned invoice for the $5,000 paid to APS.
JPL asserts that the freight charges of 10.35 cents per litre imposed by Park during the period between 12 November 2021 and 21 June 2022 was excessive and beyond that which was provided for under the FSC and/or was unconscionable within the meaning of s 21 of the ACL.
JPL refers to Schedule 2 Item 7 (Reference Schedule) of the FSC which provides as follows:
“Schedule 2 – Delivery Fees
As at 01.03.2019 Current Delivery Fee to Tathra ex Sydney – 5.60 cpl (GST Incl)
Delivery fee may be subject to variation over the term of the contract in response to carrier charges.”
JPL argues that although the Schedule allows for variation of the nominated fee of 5.60 cents per litre, that variation must be “in response to carrier charges”.
In support of its position JPL refers to an SMS message from Allan Scholeffel of Park to Ms Arora dated 12 November 2021 in which Mr Scholeffel says:
“I have canned [sic] your freight to 5.2 cpl ex GST to match Siman. I will work through the process and come back to you with our thoughts on the freight issue.”
The detail in Schedule 2 is anomalous. The delivery fees are said to be to “Tathra ex Sydney” as at 1 March 2019, whereas the service station in question here was at Berridale.
In any event, at the heart of the dispute here is the fact the rate of 10.35 cents per litre was well in excess of the contracted rate. However, as reflected in an SMS message from Sean Butler of Park to Mr Jaggi on 21 June 2022, this rate was for Berridale/Bombala combined deliveries.
In cross-examination Mr Jaggi confirmed that JPL operates service stations at both Berridale and Bombala. He acknowledged that, in those circumstances, the rate referred to by Mr Butler may have been for “a split load” to Berridale and Bombala.
Counsel for Park argues that, in those circumstances, the delivery charge under Schedule 2, which was for single load delivery, is not applicable.
JPL argues the contractual provision is clear. Whilst JPL says there is no way of knowing on the face of the invoice what was charged for delivery, it accepted in submissions that it was charged roughly 10 cents per litre, being significantly more than provided for in the contract.
Allowing for the anomalous reference to Tathra, in my view Schedule 2 of the FSC clearly relates only to rates for single delivery between Sydney and the service station regulated by the contract.
I accept Park’s submission that rates for “split load” delivery stand outside Schedule 2.
Apart from that of Mr Butler, who justifies the amount charged by Park, I have no evidence as to the relevant rate for delivery of split loads.
From an uninformed lay perspective, it makes sense that the rate for delivery of split loads would be more than the rates for delivery to single destinations. Greater distance would be involved, perhaps additional handling costs, and any number of other factors could be at play.
On the face of it, the split load delivery costs in this case for two destinations is less than double the cost for a single destination. Whilst I am not assisted by any evidence to make an informed assessment, I cannot conclude the delivery charge was exorbitant. I certainly cannot say that, broken down, the delivery charge for the trip to Berridale was beyond the rate prescribed in the FSC. These are not gaps to be filled in without evidence.
For those reasons, I am not satisfied on the evidence that there has been a breach of contract in terms of the rate charged for delivery.
The statutory unconscionability claim, although cast in broad terms, based on the submissions made to me rely on unconscionability said to be based upon failing to act in good faith (s 22(1)(l) ACL) and failure to disclose the charges which were unforeseen by JPL and which JPL could not reasonably resist (s 22(1)(a), (d), (i) ACL).
The crossclaim pleads that Park is liable in conversion, detinue and/or trespass as a result of its dealings with what is described as “Caltex equipment and signage” which constituted a Caltex price board, a flagpole, sign and fascia.
No submission was made in respect of the allegation of trespass, and the claim was advanced only in conversion and detinue.
As was observed in submissions, Park admits it removed and was in possession of the Caltex equipment and signage in preparation for installing signage on the Berridale site in accordance with the 2019 Contracts. Park however denies it is in possession of the Caltex equipment and signage at the present time. There is no evidence of what became of it.
JPL contends it has established a straightforward entitlement in detinue or conversion, and if the Caltex equipment and signage is not returned, as it has not been, JPL is entitled to damages. Those damages are quantified at $59,713.50, being the amount it is alleged JPL is liable to pay RH Jaggi Investments pursuant to an invoice rendered on 29 June 2023.
That invoice was issued more than six months after the termination of the 2019 Contracts and three years after the Caltex signage and equipment was removed. Park submits the claim for the Caltex equipment and signage was not made until the crossclaim was filed in November 2023.
Although it refers to an attached quote, the invoice from RH Jaggi Investments as tendered in evidence contains no detail as to how the claimed amount of $59,713.50 is made up. In my view, there is considerable force in the scepticism Park raises in relation to the legitimacy of that claim.
In submissions, counsel for JPL confirmed the invoice has not been paid but says it is nonetheless a liability that remains with JPL.
Park advances a fundamental submission going to the heart of this aspect of the crossclaim, namely that there is no evidence RH Jaggi Investments owned the signage and equipment.
Counsel for JPL candidly acknowledged that if RH Jaggi Investments does not own the Caltex signage and equipment, it is open to the Court to find there is no basis for the invoice underlying JPL’s claim and therefore no loss is established in the detinue/conversion claim. It is accepted there is no evidence before me that RH Jaggi Investments owned the Caltex equipment and signage.
In my view, absent evidence, there is no basis to infer that RH Jaggi Investments owned the equipment and signage in question. Indeed, informed by the facts of the present case, one would conclude there is a strong likelihood that property in that equipment and signage remained with Caltex.
It would have been a simple matter for an officer of RH Jaggi Investments to give evidence of ownership if that were the case.
The orders of the Court in accordance with these reasons will reflect judgment for the plaintiff in the sum of $109,778.24, for breach of both the FSC and the Supply Agreement.
Whilst foreshadowed in closing written submissions, Park’s two alternative claims for contractual interest have not been the subject of argument. That is understandable as it would necessarily have been speculative depending on the ultimate disposition of the various claims.
In the circumstances, to accord procedural fairness to the parties, I will make orders for the determination of Park’s entitlement to interest, if that cannot be agreed.
Otherwise, I will also hear from the parties in relation to the claim for interest by the cross-claimant.
Accordingly, I make the following Orders:
Judgment for the plaintiff against the defendants in the sum of $109,778.24.
On the crossclaim, judgment for the cross-claimant against the cross-defendant in the sum of $27,199.
I reserve all questions of costs and interest.
If the parties are able to agree on costs and/or interest, Short Minutes of Proposed Order are to be emailed to my Associate by 2 December 2025. To the extent that agreement is not reached in relation to appropriate orders, I make the following Directions:
(a) The plaintiff/cross-defendant is to provide written submissions to my Associate by 2 December 2025 not exceeding five pages as to the orders contended for costs and/or interest. (b) The defendants/cross-claimant are to provide written submissions to my Associate by 9 December 2025 not exceeding five pages as to the orders contended for costs and/or interest.
**********
See Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [52].
See Electricity Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [53]
See Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99; [1973] HCA 36.
See generally, BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 282-283.
Park Pty Ltd
Jaggi Pty Ltd [2025] NSWDC 483
(1973) 129 CLR 99
(1977) 180 CLR 266
(1992) 175 CLR 353
(2014) 251 CLR 640
(1987) 162 CLR 221
Additionally, I consider JPL’s point is well made, namely that the Minimum Volume Amount, which is the lynchpin to clause 4.1.1, involves a consideration of the Estimated Annual Volume, which is variable. Calculation of that amount also assumes the agreement continues in order to make the necessary calculation.
Otherwise, the contract only accommodates payments of a Low Volume Fee after each Volume Period. This is arguably inconsistent with the approach postulated by Park which effectively seeks a single payment in advance.
Also telling in my view is the wording of clause 4.1.1 which speaks of purchase of petroleum product “during” the Term.
The word “during” tends to the conclusion that for the Low Volume Fee to be triggered, the Term is continuing. This finds some symmetry with clause 2.1 which, as detailed earlier, provides that the contract continues for the Initial Term unless terminated sooner.
All things considered, in my view, as a matter of construction focussed on a business-like interpretation, clause 4.1.1 ought be construed as referring to the period during which the contract remains on foot.
Accordingly, on any view of it, I am satisfied the Low Volume Fee payable by JPL in accordance with clause 4.6.1 is $33,038.62, reflecting the period up to 14 December 2022, when the 2019 Contracts were terminated and not beyond.
Park argues the terms of clause 3.6, as outlined earlier, do not mandate a requirement to include freight charges in the invoices. Rather, it is argued that clause 3.6 is a “facilitative provision” and Park retains the right to pursue freight charges which for whatever reason were not included in invoices rendered at the time of delivery.
Park says the terms of trade under clause 25 of the Credit Application are plain and the freight charges remain the obligation of JPL.
On the principles discussed in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 and Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5, Park also argues that payments made by mistake are recoverable either on the basis of unjust enrichment or a failure of consideration. As Park puts it:
Mr Jaggi also argues that the broad wording of the Guarantee involving what is known as an “all monies clause” must be treated with caution and does not impose unlimited liability. Such clauses must be interpreted strictly, again with any ambiguity construed in favour of the guarantor.
Whilst both parties advanced authorities in support of their respective submissions, it seems clear enough that they are not divided as to the principles to be applied. Rather, the issue is one of construction on the particular facts, bearing in mind at all times the need to apply an objective measure to distil a business-like interpretation, avoiding a technical or myopic approach.
On balance, I consider the clear objective intention of Schedule 4 is to incorporate the Guarantee into the FSC. Rather than the parties’ indicating “this is what the guarantee in the Credit Application means”, I consider them objectively to be saying, “Mr Jaggi agrees to guarantee the obligations of JPL under the FSC in the terms reflected by the guarantee in the Credit Application”.
Accordingly, I consider Mr Jaggi liable under the Guarantee for the damages awarded against JPL in respect of the Low Volume Fee payable under the FSC in the sum of $33,038.62.
However, neither Mr Jaggi nor Ms Arora were effectively challenged on their evidence that information as to configurations was provided to Peter Rogers in 2019, that Mr Rogers had been followed up on requests to install the bowsers, and albeit by voicemail, had been advised of the urgency of the situation. Mr Rogers was not called to give evidence refuting the accounts given by Mr Jaggi and Ms Arora.
In all the circumstances, I am satisfied that Park breached the Supply Agreement and failed to install the bowsers as contracted within a reasonable timeframe.
This enlivens the issue squarely raised by Park as to whether JPL actually incurred the expense and thus suffered the loss claimed in relation to the relocation and installation of the bowsers from Tathra.
It is no doubt curious that, in the aftermath of having allegedly paid RH Jaggi Investments over $30,000 in cash for installation of the bowsers in circumstances where JPL considered Park to have breached its contractual obligations, there is no reference to that installation by either Mr Jaggi or Ms Arora in the correspondence which followed between them and Park until 6 September 2021 when Mr Jaggi wrote to Paul Ormerod saying:
It is consistent in my view, having regard to all the evidence, that the cash payments, which I am satisfied were made by JPL, reflected payment for the relocation and installation of the bowsers. No obvious alternative reason for those payments has been made out. Speculation in the course of cross-examination that the payments were for rent was not established as having any firm foundation.
I do not ignore the fact that JPL did not agitate claims for the relocation and installation expenses prior to the advent of the crossclaim however, that does not necessarily mean there was no basis for such a claim. Afterall, Mr Jaggi and Ms Arora advised representatives of Park that JPL was renting the bowsers but did not, as one may think they could have, make any claim for those rent expenses. In all the circumstances, the failure to pursue the installation costs is not, in my view, determinative.
Whilst, as I have endeavoured to point out, there are legitimate questions raised in relation to the genuineness of the claim for the expenses in question, they do not cause me to reject the evidence of Mr Jaggi and Ms Arora, who I found generally straightforward and credible, supported as they were by contemporaneous receipts and objective evidence that the work was performed to the benefit of JPL.
For those reasons I am satisfied JPL has established an entitlement to contractual damages for the costs of relocating and installing the bowsers at the Berridale service station. However, as outlined, the evidence only establishes cash payments of $27,199, which is the amount I allow. Whilst possibly explicable, the burden of the shortfall in the amount claimed must be borne by JPL.
Little more is put before me in support of those allegations than the contract rate for single delivery and the rate for split loads.
For the reasons I canvassed, I do not have evidence to establish any of the allegations of unconscionability. The simple assertion of unconscionability does not make it so.
Accordingly, the claim for excessive delivery charges is not made out.
Accordingly, I am not satisfied on the evidence before me that the invoice rendered by RH Jaggi Investments for the Caltex equipment and signage is legitimate and enforceable. It follows that the claim in detinue/conversion by JPL is not made out.