AMPOL Lawyers Make Rookie Error When Seeking Interlocutory Injunction Against CALTEX
EG FuelCo (Australia) Ltd v Ampol Australia Petroleum Pty Ltd [2021] NSWSC 989 (9 August 2021)
The applicant seeks an interlocutory mandatory injunction for the plaintiff to allow defendant access to 87 of its sites to allow rebadging. The defendant asserts that it can compel plaintiff to rebadge its sites using Ampol marks. The Court in making its orders relied on Naoum v Dannawi (2009) 75 NSWLR 216; [2009] NSWCA 253 at [36].
Facts:
Chevron Global Energy Inc owns the "Caltex Marks". By a Trade Mark Licence Agreement "TMLA", Chevron granted Ampol exclusive licence to use the Caltex Marks in Australia.
Ampol supplies fuel to EG pursuant to a Fuel Supply Agreement originally made between Caltex and Woolworths but has now been novated by Woolworths to EG.
EG’s entitlement to use the Caltex Marks derives from a further agreement being a Trade Mark Licence Deed between Caltex and Woolworths.
Chevron terminated the TMLA on 20 December 2019, with effect on 30 June 2020.
The defendant’s entitlement to use Caltex marks to expire at the end of 2022.
Ampol wishes to rebrand the 1,900 sites to which it supplies fuel, including the 540 sites operated by EG, as “Ampol” sites and to substitute Ampol marks for the Caltex marks.
Ampol Australia Petroleum Pty Ltd, seeks an interlocutory mandatory injunction requiring EG FuelCo (Australia) Ltd, to allow it access to 87 of EG’s 540 “Caltex” branded retail service stations throughout Australia for the purpose of permitting Ampol to “rebadge” those service stations as “Ampol” service stations.
Issue:
Whether or not an injunction should issue compelling plaintiff to allow defendant access to 87 of its sites to allow such rebadging.
Applicable law:
Competition and Consumer Act 2010 (Cth) - provides for competition, fair trading, and consumer protection.
Naoum v Dannawi (2009) 75 NSWLR 216; [2009] NSWCA 253 at [36] - held that an injunction which is granted in aid of legal or equitable rights should bear upon the case alleged and to be proved against the defendant and should indicate the conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected of him or her as a matter of fact.
Analysis:
An injunction should specify clearly what the party to whom it is directed should do or not do. Ampol seeks an order that EG “take all steps necessary” to allow Ampol to “access” the 74 sites “for the purpose of permitting [Ampol] to effect changes” to “remove” the Caltex Marks and “add” the Ampol Marks. However, the proposed order does not specify what, as a matter of fact, EG must do or not do.
Conclusion:
The Court declined to grant the interlocutory mandatory injunction sought by Ampol. The defendant/cross-claimant’s Amended Notice of Motion filed in Court on 21 July 2021 is dismissed with costs.
