Commonwealth Numbered Acts

PETROLEUM RETAIL MARKETING FRANCHISE AMENDMENT ACT 1984 No. 122, 1984 - SECT 21

21. Sections 21 and 22 of the Principal Act are repealed and the following
sections are substituted: Interpretation

"20A. In this Part, unless the contrary intention appears, 'franchise
agreement' means a franchise agreement in relation to which this Act applies,
and 'franchisee' and 'franchisor' shall be construed accordingly. Injunctions

"21. (1) Where, on the application of a party to a franchise agreement, a
court is satisfied that a person has engaged, or is proposing to engage, in
conduct that constitutes or would constitute-

   (a)  a contravention of a provision of this Act or the regulations;

   (b)  attempting to contravene such a provision;

   (c)  aiding, abetting, counselling or procuring a person to contravene such
        a provision;

   (d)  inducing, or attempting to induce, whether by threats, promises or
        otherwise, a person to contravene such a provision;

   (e)  being in any way, directly or indirectly, knowingly concerned in, or
        party to, the contravention by a person of such a provision; or

   (f)  conspiring with others to contravene such a provision, or conduct that
        otherwise defeats or prejudices, or is likely to defeat or prejudice,
        any right or remedy of or available to the applicant under this Act,
        the court may grant an injunction in such terms as the court
        determines to be appropriate.

"(2) Without limiting the generality of sub-section (1), the power to grant
injunctions under that sub-section includes the power to grant injunctions for
the purpose of setting aside any instrument or disposition, but the court
shall not grant such an injunction that would adversely affect the interests
of a bona fide purchaser or assignee or other bona fide person interested (not
being the defendant or an associate of the defendant).

"(3) Where in the opinion of the court it is desirable to do so, the court may
grant an interim injunction pending determination of an application under
sub-section (1).

"(4) The court may rescind or vary, or suspend the operation of, an injunction
granted under sub-section (1) or (3).

"(5) The power of the court to grant an injunction restraining a person from
engaging in conduct may be exercised-

   (a)  whether or not it appears to the court that the person intends to
        engage again, or to continue to engage, in conduct of that kind;

   (b)  whether or not the person has previously engaged in conduct of that
        kind; and

   (c)  whether or not there is an imminent danger of substantial damage to
        any person if the first-mentioned person engages in conduct of that
        kind.



"(6) The power of the court to grant an injunction requiring a person to do an
act or thing may be exercised-

   (a)  whether or not it appears to the court that the person intends to
        refuse or fail again, or to continue to refuse or fail, to do that act
        or thing;

   (b)  whether or not the person has previously refused or failed to do that
        act or thing; and

   (c)  whether or not there is an imminent danger of substantial damage to
        any person if the first-mentioned person refuses or fails to do that
        act or thing.



"(7) Without limiting the generality of sub-section 3 (2), a reference in this
section to a party to an agreement includes a reference to a person who has
been a party to an agreement. Compensation

"22. (1) Where a party to a franchise agreement suffers loss or damage by
reason of the other party to the agreement contravening a provision of this
Act or of the regulations, that other party is liable to compensate the
first-mentioned party for the loss or damage.

"(2) Where a franchisee avoids the franchise agreement under sub-section 9 (4)
or 15 (5), the franchisor is liable to pay to the franchisee such amount of
compensation as is necessary to put the franchisee in the same position as the
franchisee would have been in if the agreement had not been entered into.

"(3) Where-

   (a)  the marketing premises to which a franchise agreement relates are held
        by the franchisor (in this sub-section referred to as the 'original
        franchisor') under a lease (in this sub-section referred to as the
        'head lease');

   (b)  the head lease is terminated in such circumstances that the
        franchisee-

        (i)    continues to have the same right to possess, occupy or use the
               premises as the franchisee had before the termination of the
               head lease; or

        (ii)   obtains, or is entitled to seek, that right by way of relief
               against the termination of the head lease;

   (c)  that right is or will be held, as the case may be, from a person who
        is neither the original franchisor nor a corporation related to the
        original franchisor; and

   (d)  by reason of the operation of paragraph 6 (1) (a) or sub-paragraph 6
        (1) (b) (ii), this Act (other than this section) does not, or will
        not, as the case may be, apply in relation to any agreement under or
        by virtue of which that right is or will be held, then, if the
        franchisee surrenders that right, or the entitlement to seek that
        right, as the case may be, together with all other rights held in
        respect of the premises under or by virtue of any franchise agreement,
        the original franchisor is liable to pay to the franchisee such amount
        of compensation as is necessary to put the franchisee in the same
        position as the franchisee would have been in if the head lease had
        not been terminated.

"(4) Without limiting the generality of sub-sections (2) and (3), where-

   (a)  compensation is payable to a franchisee under either of those
        sub-sections;

   (b)  after 3 days' notice in writing served on the franchisor, the
        franchisee leaves on the marketing premises, and abandons his rights
        to, any motor fuel or other goods sold to the franchisee by the
        franchisor; and

   (c)  the motor fuel or other goods are unadulterated and undamaged, the
        compensation payable to the franchisee includes an amount equal to the
        sum of all amounts paid by the franchisee to the franchisor in respect
        of the motor fuel or other goods (including any amount so paid at a
        time when this Act did not apply in relation to the franchise
        agreement or at a time before the commencement of that agreement).

"(5) Without limiting the generality of sub-sections (1) and (3), in assessing
any compensation payable to the franchisee, regard shall be had to any
goodwill in respect of the marketing premises attributable to the franchisee.

"(6) Where, in accordance with sub-section (3), a corporation is liable to pay
compensation, then, if the corporation is related to one or more other
corporations, both, or all, as the case may be, of those corporations are
jointly and severally liable to pay the compensation and, where one of those
corporations has paid any of the compensation, it may recover, by way of
contribution and as a debt, from the other corporation or any of the other
corporations, as the case may be, such part of the amount paid as the court
considers just and equitable.

"(7) A corporation is not liable to pay compensation to a franchisee by virtue
of sub-section (6) unless it is the franchisor in relation to a franchise
agreement under or by virtue of which rights have been surrendered by the
franchisee under sub-section (3).

"(8) Compensation may be recovered under this section by action in a court,
commenced at any time within 6 years after the day on which the liability to
pay the compensation arose.".