G & L INTERNATIONAL TRADING LIMITED v GASOLINE ALLEY SERVICES LIMITED [2021] NZHC 1614

G & L INTERNATIONAL TRADING LIMITED v GASOLINE ALLEY SERVICES LIMITED [2021] NZHC1614 [1 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000374[2021] NZHC 1614BETWEEN G & L INTERNATIONAL TRADINGLIMITEDPlaintiffAND GASOLINE ALLEY SERVICES LIMITEDDefendantHearing: 30 June 2021Appearances: K Sun for Plaintiff/ApplicantD Sheppard for Defendant/RespondentJudgment: 1 July 2021JUDGMENT OF VENNING JThis judgment was delivered by me on 1 July 2021 at 3.00 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: Capstone Law Limited, AucklandFitzherbert Rowe, Palmerston NorthApplication[1] The applicant, G & L International Trading Limited (G&L) applies for interiminjunctive orders:(a) permitting it to remain in possession of premises at 116 Carbine Road,Mt Wellington, until further order of the Court; and(b) requiring Gasoline Alley Services Limited (GAS) to continue to supplymotor fuels and petroleum products to it on the terms of a retailerSupply Agreement dated 31 July 2019, until further order of the Court.Background[2] G&L operated a petrol station and café at 116 Carbine Road, Mt Wellington.G&L's directors and shareholders are Michelle Lee and Xiang (Simon) Guo. GAS isa supplier of petroleum products to retailers throughout New Zealand and has suppliedpetrol and petroleum products to G&L for the last 14 years. It has also been thesublessor of the 116 Carbine Road premises to G&L.[3] The property at 116 Carbine Road is owned by William Eatson. Mr Eatsonleased the premises to GAS Again Supply Corporation Limited ((headlessor) (acompany controlled by him)) on 1 February 2001. On 16 March 2001 the headlessorentered a headlease with GAS. The final expiry date of the headlease was 31 March2015 with no right of renewal.[4] GAS subleased the premises first to L.W.D. Li Da International TradingInvestment Limited (LWD) pursuant to a deed of lease dated 10 July 2002 (thesublease). LWD subsequently assigned the sublease on to New Zealand Kate SuppliesLimited which in turn assigned the sublease to G&L on 7 December 2007. Thesublease expired on 14 March 2015.[5] Ms Lee has deposed that when G&L purchased the business of the fuel stationand café at 116 Carbine Road from New Zealand Kate Supplies Limited on 7December 2007 it paid $400,000. Since 2007 G&L has been operating the fuel stationand café. During that time they have been buying motor fuels and petroleum productsexclusively from GAS.[6] GAS obtained a one-off further lease term from the headlessor in August 2015to expire on 31 March 2021. On 14 March 2017 G&L and GAS entered a new subleasewhich also expired on 31 March 2021.[7] On 2 February 2021 GAS gave written notice to G&L confirming that thesublease would come to an end on 31 March 2021. It required G&L to vacate thepremises by that date. GAS also gave notice it was terminating the fuel SupplyAgreement with G&L on that date. GAS ceased supplying G&L with motor fuels andpetroleum products from 31 March 2021.[8] In response G&L issued these proceedings against GAS. G&L asserts thatGAS is estopped from allowing the sublease to expire on the sublease expiry date. Inthe substantive proceeding it seeks damages in the sum of $600,000 (excluding GST)being the value it places on its business. G&L seeks injunctive relief pending thehearing of its substantive claim.[9] GAS's position is that it has no fixed term lease of the premises that it is ableto on-lease to G&L as no further headlease has been entered into. Further, even ifGAS could procure an extension or renewal of the headlease it does not want tocommit to a new headlease to G&L.Application for interim injunction[10] The principles to apply on an application for interim injunction are settled:1(a) the applicant must establish there is a serious question to be tried;1 American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 1 All ER 504 (HL); KlissersFarmhouse Bakeries Limited v Harvest Bakeries Limited [1985] 2 NZLR 140 (CA); and NZ TaxRefunds Ltd v Brooks Homes Ltd [2013] NZCA 90.(b) the balance of convenience must be considered; that requiresconsideration of the impact on the parties (and any relevant third party)of the granting of or refusal to grant the order; and(c) an assessment of the overall justice of the position is required as acheck.[11] At stages (b) and (c) the Court will consider whether damages will be anadequate remedy, whether there is a status quo to be preserved, and the relativestrengths of the competing cases.[12] The nature and effect of the injunction orders sought are mandatory. A numberof cases have suggested that in the case of a mandatory injunction as opposed to onethat merely preserves the status quo, the Court will adopt a more cautious approach.More recently, in Commerce Commission v Viagogo AG the Court of Appeal notedthat arguments attempting to distinguish between a mandatory injunction and aprohibitory injunction may well be barren.2 What matters is the practical implicationsof the order for the affected parties. That will inform the appropriate assessment ofthe overall interests of justice.Background to the lease and Fuel Supply Agreement[13] At that time G&L bought the fuel station and café, there was seven years, threemonths remaining under the sublease before its then expiry date of 14 March 2015.The sublease did not provide a right of renewal.[14] On 14 March 2015 the sublease expired. On 31 March 2015 the headleaseexpired, also with no right of renewal. However, GAS obtained a new headlease fromthe headlessor in August 2015. The new headlease was only achieved after a lengthyprocess.2 Commerce Commission v Viagogo AG [2019] NZCA 472 at [90].[15] The final expiry date of GAS's lease of the premises under that new headleasewas 31 March 2021. The new headlease confirmed there was no right of renewal. Itprovided:RIGHTS OF RENEWAL: None – the Landlord shall give notice, shouldthe premises be able to be leased beyond thefinal expiry date; such notice to be given atleast six (6) months prior to the final expirydate.FINAL EXPIRY DATE: 31 March 2021.No notice of extension was given by the headlessor.[16] On 14 March 2017 GAS entered a new sublease with G&L. The Deed ofRenewal of Lease that was completed between GAS and G&L also confirmed the termof the sublease expired on 31 March 2021:1. The Landlord [GAS] hereby grants to the Tenant [G&L] a new lease for a period of six (6) years and seventeen (17) days from andincluding 15 March 2015 to and including 31 March 2021, [17] There was no right of renewal in the sublease. In fact it was expresslyexcluded.[18] Between the expiry of the initial sublease on 31 March 2015 and the newsublease on 14 March 2017 G&L had remained in possession of the premises as amonthly tenant. In the background section to the new sublease G&L acknowledgedthat was the basis it remained in possession.[19] During the term of that new sublease, the parties also entered a Retailer SupplyAgreement on 31 July 2019 (Supply Agreement) for the supply of petroleum products.The Supply Agreement provided for an initial term of 15 years commencing on 1August 2019.[20] However, cl 16.3 of the agreement providedGAS rights of termination on Retailer breach: If at any time during theTerm of this agreement:(f) the Retailer's right to occupy the Premises expires without renewal oris terminated for any reason or otherwise comes to an endThen GAS may, without notice, terminate this agreement or suspend suppliesunder it without payment of compensation and/or pursue any other rights andremedies of GAS without prejudice to any other of its rights or remedies andwithout releasing the Retailer from any liability to GAS, including liability forany antecedent breach or non-observance of this agreement.[21] In May 2017, shortly after the new sublease was concluded, G&L purchasednew fuel pumps. Ms Lee says that was at the behest of GAS. The new fuel pumpscost just over $50,000. GAS provided an interest free loan to enable G&L to purchasethe pumps.G&L's case[22] G&L wants to remain in possession of the premises and continue operating itsbusiness from there. Ms Lee says that all of the value in G&L's business is inextricablylinked with the physical premises. Without a renewed sublease, G&L is unable to sellits business. If the sublease is not renewed, G&L will lose all its value and she andher husband will also be left without income.[23] G&L argues that GAS is estopped from relying on the provisions in the newsublease and the Supply Agreement. It argues that GAS is obliged to enter a newheadlease with the landlord and then grant a further sublease to it for the premises andcontinue supplying fuel to it.GAS' position[24] GAS relies on the lease documents. At present it does not have a headlease forthe premises. It says the short answer to the plaintiff's claim is that the Court cannotgive G&L the remedy it seeks.3 But even if GAS was able to obtain a renewedheadlease from the landlord it does not want to maintain a business relationship withG&L because of the difficulties it has experienced with G&L in the past. It denies that3 Shotover Gorge Jet Boats v Marine Enterprises Ltd [1984] 2 NZLR 157 at 157.it has created any belief in G&L that it would grant it a further sublease after 31 March2021 and would continue to supply it with fuel products after that date.Equitable estoppel[25] G&L's claim against GAS is based on equitable estoppel. The requirementsfor an equitable estoppel are settled.4 In this case G&L must show that:(a) GAS has created a belief that it would obtain a new headlease after 31March 2021 and would grant a new sublease to G&L (and wouldcontinue to supply fuel to it);(b) G&L has reasonably relied on that belief;(c) G&L will suffer detriment if the belief is departed from; and(d) it would be unconscionable for GAS to depart from the belief.Preliminary issue – headlease renewal[26] Mr Sun submitted that "a foundational issue" to be determined is whether GAShad in fact renewed the headlease. Mr Sun submitted the Court should find that GAShas renewed the headlease. He noted that GAS apparently has plans to renovate thepremises. He referred to a conversation that Ms Lee had with Mr Ali on 3 February2021 in which Mr Ali talked about refurbishing the premises. Then between 16 March2021 and 24 March 2021 GAS's contractors visited the premises numerous times toinspect and take various measurements for renovation purposes.[27] Further, upon notification from GAS, BP sent an email to inform customers thepremises would not accept BP fuel cards from 31 March 201 until 17 May 2021 dueto renovations, and on 1 April 2021 GAS rather than the head landlord issued thetrespass notice on the plaintiff with respect to the premises.4 Gold Star Insurance Co Ltd v Gaunt [1998] 3 NZLR 80 (CA) at 86.[28] Mr Sun submitted that on the balance of probabilities, GAS' actions provedthat it had in fact renewed the headlease.[29] Against that, both GAS' executive director Timothy Ellis and its generalmanager Mr Ali each depose that no further headlease has been entered into. At thepresent time, GAS is holding over and occupying the premises as a periodictenant/sub-lessor.[30] On the evidence the Court is satisfied that, at present, GAS does not hold a newheadlease with the landlord. It is currently holding over as a monthly tenant. There isno certainty that GAS will be able to obtain a new headlease. Mr Eatson, the soledirector of the headlessor company is about 90 years old and is understood not to bein good health. Obtaining the first extension of the headlease to 31 March 2021 wasnot an easy process as was recorded in an email of GAS' managing director on 9February 2017 when negotiating with G&L for the new sublease.5 The most that canbe said is that GAS might be able to negotiate a new headlease with the landlord. Butif it does, it does not want to grant a new sublease to G&L.[31] However, for present purposes, I will assume, in G&L's favour, that GAS mightbe able to obtain a new headlease from the landlord. The issue then becomes whetherthe Court should direct GAS to take all reasonable steps to obtain such a headleaseand then to grant a sublease to G&L. Even stating the proposition in that wayhighlights the practical difficulties with the injunctive orders sought.Serious question to be tried[32] Mr Sun submitted that GAS had created an expectation that it would enter anew headlease and grant a sublease to G&L because:(a) the first renewal of the sublease was signed in March 2017, two yearsafter the expiry of the original sublease;5 The position is further complicated in that GAS' headlessor is not the owner of the property. It isnot currently clear whether there is a lease in place between Mr Eatson and the headlessor eventhough Mr Eatson controls the headlessor.(b) during the period between March 2015 and March 2017 G&L did nothave a formal sublease with GAS but was allowed to continue tooperate and trade;(c) in May 2017 GAS persuaded G&L to purchase brand new gas pumpswhich cost $50,000 (financed by GAS). The pumps have a life span of30 years;(d) on 31 July 2019 G&L and GAS entered a retail supply agreement underwhich GAS agreed to supply automated fuels to G&L. The SupplyAgreement had an initial term of 15 years commencing 1 August 2019;and(e) Ms Opinion, the GAS Auckland area manager, exchanged texts withMs Lee after G&L received the letter of termination and Ms Opinionsaid she was shocked by the letter of termination.[33] The express terms of the relevant documents are clear. The headlease and newsublease expired 31 March 2021. As GAS was holding over as a monthly tenant ofthe headlessor it was entitled to serve the trespass notice on G&L on 1 April 2021.GAS was also entitled to terminate and cancel the Supply Agreement under theprovisions of that agreement given that G&L no longer had the right to occupy thepremises after 31 March 2021.6[34] The issue is whether that clear contractual situation is affected by the equitableestoppel relied on by G&L. The only suggestion of express representations by GASare in Ms Lee's account of her discussions with Mr Ali in early February 2021, thecomments of Ms Opinion in her texts, and Ms Lee's vague statement that in numerousdiscussions she had with Mr Mistry (who she says was the leasing officer with GAS)his responses led her to believe that the sublease would be renewed.6 Under cl 16.3(f).[35] Ms Lee's statement about Mr Mistry's comments is so vague and lacking indetail that the Court can place no weight on it.7 Further, Mr Mistry has sworn anaffidavit confirming that he is the capital and refurbishments project manager (not theleasing manager) and that when Ms Lee asked him about the sublease he told her hewas not sure and did not know about it. In her affidavit in reply Ms Lee did not respondto that evidence.[36] As noted, on 3 February 2021 Ms Lee had a meeting with Mr Ali to discuss thetermination letter. Ms Lee apparently recorded the conversation. Ms Lee referred toMr Ali's recorded comments:You know there is a lot of work that we need to do right now in the next twomonths. Do the measurements, do the planning, do all the things in the shopand you know, we are looking to demolish everything in the shop and stuff.You know there is a lot of work that needs to be done.[37] There is nothing in that record of what Mr Ali said that suggested GAS wouldnot rely on the letter of termination in relation to G&L. Mr Ali's comments areconsistent with GAS' position that if it is able to achieve a new headlease it will wantto refurbish the premises and re-let it to a new tenant. They do not support thesuggestion that Ms Lee believed GAS would grant G&L a new sublease.[38] Later, in response to Ms Lee asking if there was anything wrong with whatthey were doing, Mr Ali apparently said:No no no Michelle it is purely a commercial decision that the board hasmade, and that we have made as well with the board, that we are going toredevelop the site.[39] While that is different to Mr Ellis' evidence and the formal notice of breachthat he had previously issued, (as discussed below), it cannot be construed as arepresentation that GAS would grant a further sublease to G&L. It was, as MrSheppard submitted, no more than "comforting sounds" by Mr Ali. Actually, thecomments confirm that GAS' board had decided not to renew G&L's lease.7 Eng Mee Yong v Letchumanan [1980] AC 331 (PC).[40] Nor do Ms Opinion's text responses to Ms Lee assist G&L. Ms Opinion wasGAS' area manager. She has confirmed in evidence that she was on leave at the timeshe engaged in the text communications with Ms Lee in response to Ms Lee's phonecalls. Ms Opinion was unaware that a notice had been served. Again her text messagesdo not support G&L's argument of any representation that the lease would be renewed.They are at most personal sympathetic responses. Ms Opinion properly referred MsLee to Mr Ali as she had no input into leasing arrangements. Ms Opinion hasconfirmed that at no time, either verbally or in writing, did she suggest to either MsLee or her husband that G&L's lease would be renewed. That was in any event beyondher responsibility.[41] On the evidence there is no express representation that G&L can rely on tosupport its position that GAS created a belief it would grant G&L a new sublease andwould continue to supply it with fuel past 31 March 2021.[42] G&L is then left with the other matters it relies on to support the belief. Beforeaddressing those matters I note two further difficulties with the plaintiff's case. MrSun was unable to say when the belief was created, and nor was he able to say howlong G&L believed the sublease would be granted for. Both are important aspects ofany belief that G&L seeks to rely on.[43] The suggestion that the delay of two years in obtaining a renewal of thesublease in the first instance somehow supports a belief that the new sublease wouldbe renewed a second time is a difficult proposition for G&L. The original sublease,which expired in March 2015, had seven years, three months to run when G&L boughtit. The sublease renewed in March 2017 only ran until 31 March 2021, a period offour years, (without any right of renewal). Rather than suggesting there was likely tobe a new or further renewal the short period of time left in the new sublease (whichexpressly excluded any further renewal) and the length of time it had taken for theheadlease to be renewed should have confirmed to G&L that, if anything, there wouldbe no further sublease after 31 March 2021. The exact period of time that the lease hadto run was expressly recorded. There is no basis to suggest the background to thesublease could create any belief of a further renewal.[44] Next, G&L relies on its purchase of the petrol pumps as somehow supportingG&L's belief there would be a long term relationship with GAS. There is a differencebetween Ms Lee and Mr Ali as to why there was a delay in concluding the newsublease and in relation to the circumstances surrounding G&L's purchase of the newfuel pumps. Mr Ali says the reason for the delay between the execution of the newheadlease in August 2015 and the execution of the new sublease with G&L in March2017 was the discussions between the parties regarding the need for G&L to replacethe fuel pumps. Ms Lee disputes that and says she was persuaded by GAS to buy thenew gas pumps in about May 2017.[45] The contemporaneous documents support Mr Ali's evidence. An internalemail from Mr Murray of GAS to Ms Brodie of 9 February 2017 (before the subleasewas renewed) refers to a quote for the installation of the new pumps at Carbine Roadand carries onto say:I think that Michelle [Ms Lee] needs to show some good faith and meet herearlier commitment to replace the dispensers. Gas has completed the workthat we said that we would do and her commitment to Gas & to Bill [landlord]was to replace the dispensers.At the end of the day if he closes the premises then Gas will be forced toremove its tanks and Michelle will have to take the dispensers off but therewill be some residual value for these to someone in our network. [46] Further, Ms Brodie then sent an email to Ms Lee on 27 February 2017 noting:Nahid [Mr Ali] says we will need the sub-lease signed and would then be ableto provide a loan to cover the $50k quotes. The loan would be interest-freeand repayable at 2d/litre on all invoiced product, i.e. if you are delivered 1000litres you are billed $20 (on the same invoice).I've been trying to find time to come and see you with the sub-lease, which[Mr Ali] says we will need to have signed first, but unfortunately have mostlybeen on the South Island this month and I've just not managed to get there. [47] Ms Lee confirmed her agreement to that email. The written communicationsat the time support Mr Ali's evidence that the new fuel pumps were part of thearrangement regarding the new sublease. It must have been clear to Ms Lee and G&Lthat there was no suggestion that, because the pumps might have a life of 30 years thatthe new sublease would extend beyond its expiry of 31 March 2021.[48] Ms Lee suggested that G&L was placed under pressure by GAS to install thenew pumps. Certainly it appears GAS was not prepared to enter the new sublease untilthat issue was resolved, but for the above reasons that does not advance G&L's case.Further, there are a series of emails on 30 March 2017 and on 21 April 2017 in whichMs Lee refers to various of the old pumps not working and inquiring as to the date forthe installation of the new pumps which confirm the old pumps needed to be replaced.[49] The last substantive issue relied on by G&L is the Supply Agreement. It iscorrect that the Supply Agreement entered on 31 July 2019 referred to a term of 15years. GAS' response is that the new supply agreement was needed because GAS hadentered into the AA Smartfuel program and as a result its supply arrangements wereto be updated. They were updated for all its retailers in standard terms. GAS advisedG&L and its other retailers of the reason for the new supply agreement by a regionalroadshow, a conference and a memorandum of 10 June 2019. The memorandumadvised:GAS entry to the AA Smartfuel program has necessitated certain changes tothe Retailer Supply Agreement that exists between it and the GAS Retailersmaking up the network. In making the necessary changes, GAS has taken theopportunity to modernise the document and to update it in certain importantrespects. The wording and content of this latest document are fundamentallyunchanged from previous versions of the Agreement, but certain provisionshave been replaced, others have been materially altered and some are new tothe Agreement. These changes are summarised and explained in thismemorandum in order to make your review of it easier and to aid yourunderstanding of the changes and, in particular, their purpose. GAS has setout to change nothing other than aspects of the Agreement that are now out ofdate, incorrect, inconsistent with GAS participation in the AA Smartfuelprogram or now required by it.[50] Further, cl 16.3(f) of the 2019 Supply Agreement was, as Mr Sheppard submits,tied inextricably to the term of the lease. The clause enabled GAS to terminate theSupply Agreement upon the expiry of the sublease on 31 March 2021. It is inevitablethat the supply agreements GAS had with its various retailers would not coincide withall the expiry dates of leased premises subleased by GAS (or other landlords). Forthat reason cl 16.3(f) was incorporated in the Supply Agreement.[51] G&L fails to satisfy the Court that it has an arguable case GAS created a beliefthat it would obtain a new headlease and would grant a further sublease to G&L.Reasonable reliance[52] Mr Sun argued that G&L's belief the sublease would be renewed wasreasonably held because it did not know its belief was untrue until it received the letterof termination.[53] Again, an initial difficulty for G&L is that it is unable to say when that beliefwas created. Further, no reasonable person in the shoes of G&L could have had anexpectation the sublease would be renewed past March 2021 because:(a) G&L accepted the terms of the sublease had a final expiry date of 31March 2021 with no right of renewal when it entered the new subleasein March 2017;(b) G&L was expressly advised of the reasons for the updated 2019 SupplyAgreement. The Supply Agreement included a term enablingcancellation past 31 March 2021; and(c) G&L had been issued with a notice of breach of the Supply Agreementwhich confirmed that GAS was reserving its rights under both the leaseand Supply Agreement (which included rights of termination). Despitethat G&L continued to breach the Supply Agreement by failing to openon weekends, on Saturdays and Sundays, and some public holidays.8[54] Finally, at no point in her evidence does Ms Lee say that G&L did anything (orfailed to do anything) in reliance on the belief that a further sublease would be grantedafter 31 March 2021.Detriment[55] I note that the damages sought in the substantive claim is $600,000 being thevalue Ms Lee attributes to the business. When G&L paid $400,000 for the businessthe sublease had seven years, three months to run. Ms Lee's assessment of value at8 The Supply Agreement also included a waiver clause: cl 21.$600,000 is a bare assertion. The value of the lease (goodwill) would most likely havedecreased over time rather than increased as the time left under the lease reduced.[56] The further difficulty for G&L is that it would have been unable to sell itsbusiness between March 2017 and March 2021 with anything other than a lease thatwas due to expire as at 31 March 2021.Unconscionability[57] Next Mr Sun suggested that it would be unconscionable for GAS to terminatethe sublease because GAS will confiscate G&L's assets without paying anything forthem.[58] As Mr Sheppard noted, GAS is not purporting to terminate the sublease.Rather the sublease has expired. Under cl 33 of the original lease (incorporated in thesublease) G&L may remove its fixtures and fittings from the premises and in relationto the new fuel pumps cl 60 provides that if GAS wants to acquire the pumps GASwas required to buy them at a price equal to the off-site value to be determined by anarbitrator in the event of disagreement. Otherwise G&L would be free to remove themand sell them.[59] Mr Sheppard confirmed GAS' offer to purchase G&L's stock and trade and itstangible assets at cost price and the fuel pumps at a current value of $40,000 despite ithaving no obligation to do so was still open.[60] For the above reasons the plaintiff fails to meet the test of a serious question tobe tried in the substantive proceeding.Balance of convenience[61] As G&L fails to meet the standard of a serious question, the balance ofconvenience does not arise in this case. But if it did, the balance favours GAS.[62] GAS' position is that if it was able to take up a new headlease it would closethe premises for a period of renovation, remove and write off all of the interior fitoutand then spend a large capital outlay on a total upgrade before leasing the premises toa new tenant. GAS is not prepared to have G&L remain as a tenant as it regards it asunsuitable. In Mr Ali's opinion G&L has caused damage to GAS' brand. Mr Alideposes that during the period of G&L's tenancy fuel volume sales have continuouslydeclined over the last six years, a decline not suffered generally through the GASnetwork. On GAS' estimates if a new retailer took over the operation of the CarbineRoad property the site would do an increased fuel volume of about 40 per cent.[63] Mr Ellis, the executive director of GAS, has detailed G&L's breaches of the2019 Supply Agreement. On 3 August 2019, three days after the agreement wascompleted, G&L kept the service station closed in breach of the requirement that it beopen. Also, the premises were in an unpresentable state with a number of vehiclesparked across the forecourt. The service station was closed on the following Saturdayas well. On 14 August 2019 Mr Ellis issued a written notification of breach. Despitethat, the premises were closed on Sunday, 21 September and Sunday 28 September.In October G&L resumed its practice of not opening the service station on bothSaturdays and Sundays. It was also shut on Labour Day. It remained shut on otherperiods, including from Christmas Eve through to and including 2 January 2020 andexcept for the months of February and March 2020, from January 2020 until March2021 G&L did not operate the service station on Sundays. Also there were a numberof Saturdays and public holidays it did not operate on.[64] In response Ms Lee does not dispute the breaches but says the revenue on theweekends and public holidays remain negligible. G&L therefore decided to close onSundays from January 2020 onwards. As the company was her family's only sourceof income they did not want to make a loss. She notes that G&L only received onenotice of default.[65] Ms Lee and G&L's response overlooks the company's obligations under theSupply Agreement. G&L has breached those conditions. GAS should not be requiredto re-enter a sublease and supply agreement with an unsatisfactory tenant and retailer.[66] In any event, damages would be an adequate remedy for G&L. It could claimfor lost income and the lost value of its business in its proceedings if it wishes to pursuethem.The overall justice[67] While one might have a degree of sympathy for the position that Ms Lee andher husband find themselves in, it is a consequence of the contractual agreements theyhave entered. The interests of justice and certainty in commercial affairs support GASbeing able to rely on its contractual position.Result[68] The application for injunction is dismissed.Costs[69] GAS is entitled to costs. Mr Sheppard suggested that solicitor/client costswould be recoverable under the terms of the sublease as it incorporates the originalsublease. I am not at present sure that cl 6 of the original sublease covers the costs ofthe litigation in this case.[70] If the defendant wishes to pursue solicitor/client costs it is to file and serve amemorandum within 10 working days. Any reply within five working days. I willthen deal with costs on the papers. If GAS resolves not to pursue the issue ofsolicitor/client costs, it is to have costs on a 2B basis with disbursements as fixed bythe Registrar.__________________________Venning J