LIGHTBOURNE V NEW ZEALAND RACING BOARD HC AK CIV 2008-404-7273

LIGHTBOURNE V NEW ZEALAND RACING BOARD HC AK CIV 2008-404-7273 10 December 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2008-404-7273BETWEEN SYBIL LIGHTBOURNE Plaintiff AND NEW ZEALAND RACING BOARD Defendant Hearing: 3 December 2008 Appearances: B P Henry and T Walker for plaintiff S C D A Gollin and A M Kerr for defendant Judgment: 10 December 2008JUDGMENT OF ALLAN JIn accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 3.00 pm on Wednesday 10 December 2008 Solicitors/counsel : B P Henry bhc@clear.net.nz D Evans, PO Box 2156, Raumati Denisee@lawlas.co.nz Minter Ellison Rudd Watts, PO Box 2793, Auckland sean.gollin@minterellison.co.nz[1] The defendant is established under the Racing Act 2003. Its objects are to promote the racing industry, to facilitate and promote racing betting and sports betting, and to maximise its profits for the long term benefit of New Zealand racing. Its retail operations are conducted under the "TAB" brand. They include the conduct of racing betting and sports betting. [2] The defendant has over 680 betting sites in New Zealand, of which about 100 are operated on behalf of the defendant by commission agents. These agents are paid a commission based on the volume of bets transacted, and other betting related services provided, pursuant to a commission agency agreement. Under such agreements the agent operates the TAB business for the defendant at one or more sites from premises which are normally leased by the defendant. The defendant is responsible for fitting out and branding the site and for paying the rent. The agent is responsible for running the TAB business at the site provided by the defendant, for employing and paying staff to assist in the running of the business, and for the payment of operating costs other than rent. Agents are paid a stipulated commission by the defendant. [3] The remaining TAB sites are either social agencies or branches operated by the defendant itself. This case is not concerned with such agencies. [4] Since 1985, the plaintiff has been a commission agent and since about 1990 has held the agency in premises situated at 164-166 West Coast Road, Glen Eden, Auckland. In September 2008, the defendant purported to terminate the plaintiff's agency by giving two months written notice. The defendant proposes to terminate the lease of the present premises and move its Glen Eden operations to new premises leased by the defendant nearby. The new premises are not to be managed by a commission agent; rather the defendant proposes to operate the new branch itself and to appoint a salaried manager. [5] The plaintiff says that the termination of her agency is unlawful. She has issued proceedings in this Court seeking:a) an injunction preventing the defendant from opening and operating a TAB branch at the new site until the defendant has used its best endeavours to procure the opportunity [of managing the agency at the new site] for the plaintiff; b) (in the alternative) an injunction compelling the defendant to procure the opportunity for the plaintiff; and c) unspecified damages. [6] Pending the hearing of the proceeding, the plaintiff now seeks, by way of interim relief: a) an injunction preventing the defendant from opening and operating a TAB branch at the new site until the defendant has used its best endeavours to procure another opportunity for the plaintiff, or until further order of the Court; and b) an injunction compelling the defendant to procure the opportunity for the plaintiff to move her TAB business to the new site. [7] Although the interim relief sought by the plaintiff is couched in expansive terms, Mr Henry made it clear at the hearing of the application that the plaintiff seeks merely to preserve the status quo, which he says would require the defendant to permit the plaintiff to move to the new premises, and to operate as a commission agent there, pending resolution of the substantive proceeding.Relevant background[8] Affidavits have been sworn by the plaintiff herself and by Messrs Crisp and Proudfoot for the defendant. Mr Crisp is the defendant's area sales manager for the region that includes the plaintiff's premises. Mr Proudfoot is the defendant's national retail manager with overall responsibility for the defendant's network of agencies, clubs and other outlets hosting TAB businesses. The eight nation-widearea sales managers (including Mr Crisp) report to him. The plaintiff's primary relationship has been with Mr Crisp. [9] It is common ground that by 2007, the agency premises at 164-166 West Coast Road had become less than ideal. Of particular concern was the parking situation; construction of a new railway station nearby had placed significant pressure on parking availability in the vicinity of the agency premises. There seems to have been a measure of agreement between the plaintiff and Mr Crisp that a move to alternative premises would be desirable if an opportunity presented itself. [10] In about April 2007, the defendant became aware of an opportunity to relocate the outlet to a new retail development to be built in Captain Scott Road, Glen Eden, about 200 metres from the existing agency. Having earlier contacted the developer, the defendant received a draft agreement to lease for the new premises in October 2007 and during succeeding months negotiated with the developer as to the terms of the lease that would be acceptable to the defendant. Initially, Mr Crisp was the conduit for those negotiations, but later the defendant's head office dealt directly with the developer. A formal agreement to lease was signed in March or April 2008. [11] The plaintiff was aware of the new opportunity from at least September 2007. She discussed it with Mr Crisp by telephone and during his regular visits to her agency. She began telling regular customers about the possibility of a move and started disposing of items she would not need in the new premises. [12] Mr Crisp agrees that during the latter part of 2007 he kept the plaintiff up to date with negotiations over a lease for the new site. [13] Speaking of the period during which negotiations over the lease were proceeding, the plaintiff says that:At all times during our conversations about the new premises, Mr Crisp represented that it would be my TAB business that would move into the new premises.[14] There is only qualified agreement by Mr Crisp about that. He says:In paragraph 11 of her affidavit, the plaintiff says that I represented to her that it would be her TAB business that would move into the new premises. That does not accurately reflect our discussions. We discussed the potential for the TAB outlet for Glen Eden being located within the proposed Captain Scott Road retail development, instead of at the West Coast Road premises. Of course, this was in the future, and assumed that the new site could be secured. This was not, at that stage, a 'done deal'. I did not specifically speak to the plaintiff about her operating the new site (if it could be secured). However, there was no reason for me to believe, if NZRB could obtain a lease of the new site, that she would not be asked to run the TAB opened at that site as NZRB's agent, and I can understand that she might have assumed that this would be the case. Nevertheless, this was a decision for the future and was not one which I was authorised to make.[15] In January 2008, Mr Crisp delivered to the plaintiff a new commission agent agreement for her to sign. The relationship between the defendant and its commission agents is governed by written agreements, typically for a term of three years. The plaintiff's previous agreement had expired in August 2007, but for administrative reasons the defendant did not take steps to furnish the plaintiff with a new agreement for some months after expiry. During the intervening period, both parties treated the old agreement as continuing in force. The new agreement was expressed to take effect as from the date of expiration of the old agreement, but was signed by the parties some months later. [16] The plaintiff was asked to return the signed agreement by 31 January 2008. She noted several minor errors in it and contacted Ms Flanagan, the defendant's retail operations co-ordinator, about them. Ms Flanagan asked her to sign the agreement on the basis that the errors would be corrected. The plaintiff did so, but she says that when in late February she received a copy of the agreement countersigned by Mr Proudfoot, none of the errors had been corrected. [17] Mr Crisp says that he was not generally involved in contract renewals. That task was administered from the defendant's head office. Indeed, he says that he had not been aware that the plaintiff's old agreement had expired and he believed that the plaintiff might not have been aware of it either. He says it was his general practice to deliver agency contracts personally and either to go through the contract with the agent or give the agent time to read it and ask that it be posted back to Wellington. His recollection is that the plaintiff was neither surprised nor particularly concerned about the replacement contract when delivered to her in January 2008.[18] In her affidavit the plaintiff makes particular reference to a visit to the agency by Mr Crisp on 2 April 2008. She says that they discussed the relocation of the business; she was advised that the lease for the new site had been signed and the expected move was to be October 2008. After the visit, she says she and Mr Crisp walked to the new site and she questioned him about the layout of the new premises. In particular, she was concerned about the plan for only one toilet to be shared by staff and customers. [19] Mr Crisp says that the 2 April visit was one of his periodic agency review calls. He agrees that he and the plaintiff jointly inspected the new site where construction had recently begun, although it had not progressed far. He completed a report (an "ASM call record") in respect of that visit. Under the heading "outstanding issues" he noted "relocation" and in the body of the report he noted "advised Sybil that lease had been signed for relocation expected move October 08". [20] In about mid April 2008 the plaintiff advised Mr Crisp that she wished to travel to Canada in July and August in order to visit family members, but she wanted to ensure her absence would not adversely affect anything to do with the new premises. Mr Crisp's response was that because relocation would not occur until late September 2008, or even October, her absence would cause no difficulty. [21] There was another periodic review visit on 2 July 2008. Among the outstanding issues noted in Mr Crisp's ASM call record for that visit was "move to new site" but there is no other reference in his report to a proposed change of premises. Mr Crisp says of that visit that there was no discussion about whether the new premises would be operated as an agency, although by then he had become aware that the defendant was developing a new business model for its retail operations nationally, and that while this was evolving, the defendant was taking the opportunity when new TAB premises were opened to operate some at least as wholly owned branches with a manager, rather than through a commission agent as previously. [22] Upon her return from Canada in late August, the plaintiff heard from a customer that some commission agencies were being converted to wholly ownedbranches, and that the Glen Eden agency may be converted in the same way. She says that she contacted Mr Crisp who confirmed that the defendant was terminating some commission agency contracts upon a change of premises, but that he did not know whether that would occur in respect of the plaintiff's agency. [23] Subsequently a meeting was arranged for 18 September 2008 between the plaintiff, Mr Crisp and Mr Proudfoot, who confirmed that the new Glen Eden premises would be operated as a branch of the defendant, and consequently the plaintiff's agency would come to an end. The plaintiff says she was told she would be offered the position of branch manager. Mr Crisp disagrees. He says that the plaintiff raised the issue, but was told that was a separate question which would not be discussed at the meeting. Mr Proudfoot confirms that. So do Mr Crisp's notes. [24] On the following day, 19 September 2008, the defendant wrote to the plaintiff, giving two months notice of termination of her agency. The letter was in the following terms:Termination of Glen Eden TAB AgencyThe purpose of this letter is to inform you of the NZ Racing Board's decision to terminate the Commission Agency Agreement for TAB Business (the Agreement) between you and the NZ Racing Board dated 20 August 2007, in accordance with clause 26.1(b). The NZ Racing Board has decided to cease the operation of a TAB Business in the current premises held by you as the Glen Eden Agent. As set out in clause 15.3 of the Agreement, the NZ Racing Board is not obliged to, and does not wish to, provide new premises in substitution of the Glen Eden premises. Termination will take effect from 22 November 2008 (being at least two months from the date of this letter) or such later date that the parties mutually agree to. In accordance with the provisions of the Agreement, the NZ Racing Board will pay to you a Termination Payment which will be paid on or after 22 November 2008 or such later date that the parties mutually agree to. This payment is calculated according to the following formula set out in the Agreement: A/B x 44% x 3 Where: A = the gross commission earned by the Commission Agent from the TAB Business during the period B; andB = the number of complete months between the Commencement Date and the end of the most recent full month before NZ Racing Board gives notice of termination. This has been calculated to be the equivalent of $19,702.93. You must maintain confidentiality in relation to this matter and will not discuss the issue with any person or organisation without first gaining the approval of the NZ Racing Board. Further to this termination, all TAB equipment and signage will be removed from your site by 22 November 2008 or such later date that the parties mutually agree to. Your bank guarantee will be returned to your bankers after 30 days of the NZ Racing Board being satisfied that you owe no further obligations or payments to it under the Agreement. If you have any questions or concerns, please feel free to contact me on either DDI 09 520 8205 or by e-mail bruce.proudfoot@nzracingboard.co.nz. Yours faithfully 'Bruce Proudfoot'[25] The plaintiff says she has since become aware of the termination of five other TAB agencies, including those at Dominion Road, Manukau, Lincoln Road and Epsom. [26] The plaintiff says she is shocked at the turn of events, which have come out of the blue and are in contradiction of what she understood from her discussions with Mr Crisp. Moreover, she says she understood that the agreement required the defendant to procure an opportunity for her to continue as an agent elsewhere if termination of the agreement arose by reason of the closure of her agency premises. [27] The term of the current agency agreement has been extended by agreement to 19 December 2008. There is no evidence that the defendant proposes to maintain its association with the plaintiff, either as a branch manager or as a commission agent after that.Injunction principles[28] The principles relating to the grant of an interlocutory injunction are well established. The normal approach is to consider whether there is a serious questionto be tried, and if there is, then to determine where the balance of convenience lies, and finally to conclude by having regard to the overall justice of the case: Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 129, 142 (CA). Certain allied considerations must be borne in mind. If damages would be an adequate remedy and the defendant can pay them, then ordinarily no interlocutory injunction should be granted: American Cyanamid Co v Ethicon Ltd [1975] AC 396, 408. [29] But if damages would not be sufficient or appropriate compensation for a plaintiff, then the Court will consider the position of a defendant were it to succeed at trial. In that event, if damages pursuant to a plaintiff's undertaking would be sufficient to compensate the defendant for loss suffered as the result of being under a restraint pending trial, then provided that the plaintiff is in a position to meet its undertaking, an injunction will often be thought appropriate. [30] It has been said that the balance of convenience will sometimes turn on a consideration of whether the granting of an injunction or its refusal, is the course which, after the action itself has been tried and the issues between the parties determined, would best allow the adjustment of the rights of the parties in a way that accords with fairness and justice: Somers J in Congoleum Corporation v Poly-Flor Products (NZ) Ltd [1979] 2 NZLR 560, 571 CA. Other considerations which will sometimes be relevant include the position of third parties, the desirability of preserving the status quo where other factors are evenly balanced, and the prior conduct of the parties.The statement of claim[31] The plaintiff pleads three causes of action. She says in her first cause of action that the various statements made to her by Mr Crisp on behalf of the defendant amounted to representations which induced her to sign the new agreement. In her third cause of action she relies upon the same representations as constituting a promissory estoppel. The second cause of action pleads an implied term in the new agreement to the effect that the defendant would use its best endeavours to procure an opportunity for the plaintiff to operate the TAB business in the new premises.[32] In argument Mr Henry indicated that he placed primary reliance upon the first and third causes of action without in any way accepting that the implied term cause of action lacked merit.Serious questionThe first cause of action[33] The first cause of action alleges a representation that falls within s 6 of the Contractual Remedies Act 1979, which provides:6. Damages for misrepresentation(1) If a party to a contract has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made to him by or on behalf of another party to that contract— (a) He shall be entitled to damages from that other party in the same manner and to the same extent as if the representation were a term of the contract that has been broken; and (b) He shall not, in the case of a fraudulent misrepresentation, or of an innocent misrepresentation made negligently, be entitled to damages from that other party for deceit or negligence in respect of that misrepresentation. (2) Notwithstanding anything in section 56 or section 60(2) of the Sale of Goods Act 1908, but subject to section 5 of this Act, subsection (1) of this section shall apply to contracts for the sale of goods.[34] As Mr Gollin submits, the plaintiff's evidence of a representation by Mr Crisp is slender. In early discussions there was agreement that the proposed new premises would be an improvement on the existing premises but that is of no significance. The plaintiff alleges that Mr Crisp represented that it would be her business that would move into the new premises. Mr Crisp said that he did not speak specifically to the plaintiff about her entitlement to operate the agency on the new site. He does acknowledge that the plaintiff may have assumed she would be asked to operate the agency there, and that at the time he himself had no reason to believe otherwise.[35] Although it will ultimately be a matter for trial, the evidence currently before the Court falls well short of establishing a representation on the part of the defendant. The plaintiff and Mr Crisp appear on the evidence to have assumed the continuation of a state of affairs (the plaintiff's agency) that had existed for some years. The statements alleged by the plaintiff to have been made by Mr Crisp simply acknowledge the existence of a continuing agency. The fact that the defendant may have had a nascent policy involving the future termination of certain agencies, is largely beside the point. There is no evidence of an assurance by Mr Crisp that the plaintiff would be installed as an agent in the new premises, as distinct from statements made by him that were consistent with her assumption that she would continue. Mr Henry submits that discovery may disclose an early decision by those senior to Mr Crisp to bring the agency to an end. But it would not be right for the Court to speculate about that. [36] There is a second difficulty for the plaintiff. For the purposes of s 6 of the Contractual Remedies Act, a qualifying representation must be a statement of present or past fact and not a representation as to a future state of affairs: Ware v Johnson[1984] 2 NZLR 518 at 537; Superior Minerals Ltd v Watt (2006) 8 NZBLC 101,822 at [14]. [37] Mr Henry argues that Mr Crisp's discussions with the plaintiff amounted to statements of existing fact. There are difficulties with that argument. The plaintiff's claim is that she was given an assurance as to the security of her agency. That involved a promise about the actions of the defendant in the future, so the promises (if made) contained an element of futurity. They were not statements of fact. [38] Moreover, and this is a further difficulty, there is no evidence here of inducement. The statement of claim alleges that the plaintiff was induced by Mr Crisp's representations to enter into the new agreement, but in all material respects the new agreement was in the same terms as the former expired agreement. The new agreement was proffered to her for a signature, not by reason of anything Mr Crisp had said or as part of negotiations between them. Rather, it was provided to her as part of the ordinary administrative processes of the defendant with which the plaintiff had been familiar for more than 20 years. The evidence is that the newagreement which the plaintiff was asked to sign in January 2008 was simply part of a nation-wide process under which numerous replacement contracts were sent out from the defendant's Wellington head office to agents whose contracts had expired. Mr Crisp says he was merely the conduit for delivering the plaintiff's new contract to her. Indeed, he had about half a dozen such contracts at the time for distribution to agents within his region. [39] The plaintiff makes no specific reference to inducement in her first affidavit. In her later affidavit in reply, sworn on 26 November 2008, she says that she always understood that she would run an agency from the new premises, and that she would not have entered into the new agreement had she known there was a suggestion to convert the Glen Eden TAB into a branch. But she does not say why she would not have signed the new agreement; although the latter document contains some drafting refinements, it did not materially differ from the earlier expired agreement. [40] As at January 2008, the plaintiff had no current agreement. It is difficult to see how she would have gained anything significant by declining to sign the new agreement, even if she had been aware of the possibility that her agency may be terminated, because both old and new agreements were essentially on the same terms. In my opinion the plaintiff would find it difficult at trial to establish that she had been induced to sign the new agreement by reason of what was said to her by Mr Crisp, or that, if she had been so induced, she had suffered any loss thereby. [41] In his written synopsis, Mr Henry argues that the new agreement contained a clause entitling the defendant to terminate the agreement without cause, but that the older agreement did not. He says that the plaintiff was aware of the difference but agreed to sign the new agreement by reason of the assurances given to her by Mr Crisp. [42] There is no proper basis for that submission. Each agreement contains a provision entitling the defendant to give a commission agent not less than two months written notice of termination, because of a decision by the defendant to cease operation of the TAB business at the premises concerned. In the earlier agreement, the relevant provisions appear at clauses 3.2(c) and 3.3. In the new agreement therelevant provisions are clauses 26.1(b), and (d). Plainly the newer agreement has been significantly re-ordered, but the substance of the relevant portion of the agreement remains the same. [43] In my opinion the plaintiff's case is weak insofar as it relies upon a misrepresentation for the purposes of s 6 of the Contractual Remedies Act.The third cause of action[44] The third cause of action, alleging a promissory estoppel, is based on the same representations alleged to have been made by Mr Crisp up to the date of signature of the agreement, but also upon his meetings with the plaintiff on 2 April 2008 and 2 July 2008, together with his advice to the plaintiff that it would be in order for her to travel to Canada in July and August 2008. [45] The elements of a promissory estoppel were discussed in Gillies v Keogh[1989] 2 NZLR 327: a) There must be an unambiguous representation by one party to another; b) The representee must have relied upon that promise to such an extent that it would be unconscionable to allow the representor to resile from the promise; and c) By reason of such reliance, the representee must be shown to have suffered detriment. [46] The plaintiff's evidence falls well short of establishing a clear, unambiguous representation of the sort necessary to support a claim to a promissory estoppel. Nor is there any qualifying reliance. I have discussed above the circumstances in which the agreement was signed. The circumstances do not suggest that the plaintiff treated the receipt and signature of the agreement as anything more than a routineexercise of the sort in which she had engaged on numerous occasions during a long period as a commission agent of the defendant. [47] Moreover, it is difficult to see how statements said to have been made to the plaintiff by Mr Crisp during 2008 (after the agreement was signed) could give rise to reliance for the purposes of the law of promissory estoppel. The plaintiff does not identify anything done or omitted by her by reference to her discussions with Mr Crisp during 2008; she suffered no detriment by signing the new agreement. [48] In my opinion, there would be very little prospect of the plaintiff being able to make out at trial a cause of action based on a promissory estoppel.The second cause of action[49] The remaining cause of action relies on an implied term. Mr Henry says that the term concerned is necessarily implicit in the agreement itself (Vickery v Waitaki International Ltd [1992] 2 NZLR 58 (CA)) or alternatively, that it is necessary to imply a term on business efficacy grounds (BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 16 ALR 363: Devonport Borough Council v Robbins[1979] 1 NZLR 1). [50] The established test for the implication of a term on business efficacy grounds requires that the following conditions be met: a) The term must be reasonable and equitable; b) It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; c) It must be so obvious that it 'goes without saying'; d) It must be capable of clear expression; e) It must not contradict any express term of the contract.[51] The plaintiff seeks to imply in the agreement a term that " the defendant shall use its best endeavours to procure an opportunity for the Commission Agent to operate a TAB business from another premises (sic) before it would terminate the Agreement". [52] Mr Henry argues that it is necessary to imply such a term by reason of the provision of clauses 15.3 and 26.1(d)(ii) of the agreement. Clause 15.3 provides:Change of premisesNZ Racing Board may, at any time during the Term, provide other premises in substitution for the Premises, and in such event the provisions of this Agreement shall apply to those other premises. Neither party shall be liable to the other party to the extent that the turnover of the TAB Business at the new premises varies from the turnover of the TAB Business at the previous Premises.Clause 26.1 provides:Termination without cause(a) This Agreement may be terminated by the Commission Agent giving the NZ Racing Board not less than two months' written notice of termination. (b) This Agreement may be terminated by NZ Racing Board giving the Commission Agent not less than two months' written notice of termination because of a NZ Racing Board decision to cease operation of a TAB Business at the Premises. (c) This Agreement may be terminated by NZ Racing Board by giving the Commission Agent not less than two months' written notice of termination if NZ Racing Board's use of the Premises for the TAB Business: (i) becomes unlawful due to a change to the requirements of a local authority or other governmental agency; or (ii) is terminated due to the termination or expiry of the lease of the Premises. (d) If NZ Racing Board: (i) Terminates this Agreement pursuant to clause 26.1(a), but not otherwise; and (ii) Does not procure an opportunity for the Commission Agent to operate a TAB Business from another premises (whether as a commission agent or a social agent),Then it shall pay the Termination Payment to the Commission Agent. The Termination Payment shall be paid on the date of termination and is the Commission Agent's sole remedy and compensation for the early termination pursuant to clause 26.1(a).[53] Mr Henry further argues that, given the existence of clause 26.1(d)(ii), the parties must have intended to include in the agreement a clause to the same effect as the propounded implied term, but failed to do so. He contends that there is an inherent obligation for the defendant to use its best endeavours to procure an opportunity for the commission agent to operate a TAB business from other premises before it is permitted to terminate the agreement. He says that the agreement, read as a whole, confers upon the plaintiff a right to a continuing benefit, and that the implied term is necessary to protect her business and livelihood. [54] Mr Henry supports this aspect of his argument by reference to an implied duty to exercise good faith in the performance of contractual obligations, often asserted in the context of relational contracts, such as agency or franchise relationships. In that regard he refers to Bobux Marketing Ltd v Raynor Marketing Ltd [2002] 1 NZLR 506 at [42] where Thomas J, in a minority judgment, suggested that obligations of good faith and fair dealing ought to be engrafted into contractual relationships, a thesis which the same Judge had earlier advocated in Livingstone v Roskilly [1992] 3 NZLR 230 at 237. Such an approach has not been taken up in any general way in this country: Burrows, Finn and Todd, The Laws of Contract in New Zealand (3rd ed 2007) at 6.3.3. [55] However, such obligations have been imported into contracts where there is a relationship of mutual confidence. Whether or not such a term can be implied in a franchise agreement was left open by the Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 NZLR 289. [56] Mr Henry contends that the case for the implication of good faith duties on the part of the defendant would be consistent with the terms of the contract as a whole. For example, in clause 4, express obligations are imposed upon the plaintiff as commission agent to act in good faith towards the defendant in the conduct of her duties as agent, and there is a requirement for a commission agent to act with fidelityafter the termination of the agreement. Further, clause 29 sets out a detailed dispute resolution procedure which obliges both parties to act in good faith during the currency of a dispute to which the clause applies. But it does not follow from the existence of good faith obligations in defined circumstances that there must be implied an overarching duty of good faith in respect of the entire contract. [57] Mr Henry's argument is built upon clause 26.1(d)(ii). He argues it is implied in the subclause that, because the parties envisage the defendant might procure an alternative opportunity, the defendant is bound to use its best endeavours to do so. [58] I am unable to read clause 26 in that way. I agree with Mr Gollin who argues that the clause does not impose an obligation on the defendant to procure an opportunity, whether on a best endeavours basis or otherwise. Clause 26.1(d) comes into operation only upon the termination of the agreement, so that it cannot properly be said, as Mr Henry argues, that on the proper construction of the clause, the defendant is unable to terminate the agreement until it has used its best endeavours to procure another opportunity. Clause 26.1(d) takes effect only where the agreement has already been terminated. (It is agreed that the references to clause 26.1(a) in clause 26.1(d) should be references to clause 26.1(b)). [59] I agree with Mr Gollin that clause 26.1(d) is devoted solely to the question of identifying the point at which a termination payment becomes payable to a commission agent, and is directed to ensuring that, if the defendant has terminated an agreement under clause 26.1(b), there is no obligation to make a termination payment where another opportunity is provided to the commission agent concerned (because to do so would be to compensate an agent who had suffered no loss). [60] Clause 26 makes perfect sense without the implied term for which Mr Henry contends, and there is therefore no need to apply the term on business efficacy grounds. [61] Moreover, the term contended for is not so obvious as to go without saying. Even if the defendant had assumed an implied obligation of some sort to endeavour to find an alternative agency, it does not follow that there ought necessarily to beimplied a term which, in apparent conflict with the express provisions of the agreement, requires the defendant to defer termination of the agreement until an effort had been made to find an alternative opportunity. The parties could just have easily have provided for an increased termination payment, or for liquidated damages. [62] As Mr Gollin submits, the parties could have made provision in the agreement for the term for which the plaintiff contends. The fact they chose not to do so is highly significant. [63] This case is unlike Vickery but similar to Bobux in that the parties have directly and carefully, in a detailed agreement, made express provision for termination arrangements. The term sought to be implied conflicts with those express provisions. There is no room for the implication of the term for which the plaintiff contends. Accordingly, I am of the view that the cause of action based on the implied term, is also weak.Balance of convenience[64] Ordinarily the balance of convenience will not lie in favour of a plaintiff who can be adequately compensated by damages: American Cyanamid Co. On the face of it the plaintiff's losses, if she is successful at trial, would properly be the subject of a damages award. She would be arguably entitled to the net commission payable for the balance of the term of the new agreement in the event that the Court held that the agreement ought not to have been terminated. [65] While acknowledging the general application of the rule as to the adequacy of damages, Mr Henry submits that the rule is: not a mandate for wealthy corporations to simply ignore the contractual obligations they enter into with small traders.[66] In developing that submission he says that:a) The defendant would be able wrongfully to cancel the plaintiff's agency without the risk (presumably reputational) of trial; b) The plaintiff would lose her business; c) She would not be able to meet her obligations for lease costs in respect of equipment and so forth. d) She will face bankruptcy due to the loss of the cash flow she could expect from the agency; and e) By reason of her financial difficulties she would be unable to conduct the trial in any event. [67] The plaintiff has provided particulars of lease payments, utility accounts, holiday pay and PAYE which will be payable by her upon termination of the agreement. The total is $11,712.33. In addition, there are personal tax and GST obligations which she says will crystallise. However, under the formula provided in clause 26 of the agreement, the plaintiff is entitled to a Termination Payment of $19,702.93, sufficient to take care of her outstanding listed liabilities and to make a significant contribution towards tax and GST obligations. [68] Mr Henry says that by reason of the termination, the plaintiff will be impoverished to the extent that she will be unable to prosecute this proceeding. If the plaintiff is right when she says she would become "technically insolvent" upon termination of the agreement, then she would appear to qualify for civil legal aid. That would enable her to carry the proceedings forward, and so meet Mr Henry's concern that the defendant may be able to avoid trial, and its attendant risk. [69] I ascribe no weight to Mr Henry's argument that wealthy corporations ought not to be able to enjoy the benefit of the rule that where damages are available no injunction ought to be granted. The long established position is that, if a plaintiff's claim sounds in damages, then damages ought to be the proper remedy. Sometimes an interim injunction will be granted because there can be no confidence thatdamages, if awarded at trial, will actually be paid. But that is the exception to the general rule. [70] In my opinion this is a case in which, whatever the strength of the plaintiff's claim, damages will provide a sufficient remedy to her. In reaching that conclusion I take into account the fact that the plaintiff has been a commission agent of the defendant for many years. On the evidence, she seems to have carried out her duties competently, but she has no proprietorial interest of significance in the agency. The lease belongs to the defendant, which pays the rent. No goodwill has been paid. It is not suggested that the plaintiff will, upon termination, lose the value of an investment. The case is therefore somewhat different from those involving franchise agreements where a franchisee has been obliged to make a significant capital investment, including irretrievable sunk costs. [71] There is a further important factor. If an interim injunction is granted, the plaintiff will be entitled to retain her position as a commission agent until the disposal of the substantive proceeding. Currently, there is a prospect that the case will not reach trial until 2010. The new agreement expires in August 2010. If an interim injunction is granted, the practical effect may well be that the plaintiff will have succeeded in obtaining much of the relief she seeks at trial, simply by reason of the grant of interim relief. [72] Mr Henry says that the plaintiff would not in fact permit the case to be drawn out, but would endeavour to invoke the alternative dispute resolution procedures prescribed in clause 29.2 of the new agreement, but of course such procedures may not be successful. In my view, the scale of the advantage notionally available to the plaintiff if interim relief is granted, is a matter to be taken generally into account. [73] The Court must determine whether the grant or refusal of an injunction is the course which, after the proceeding itself has been tried and the issues between the parties have been determined, will most clearly allow the adjustment of the rights of the parties to be conducted in a manner which accords with the ends of justice. I have found that damages would be an adequate remedy in the circumstances of this case. Of itself that strongly suggests that balance of convenience factors favour thedefendant. It is a rare case in which, despite the adequacy of damages, the Court will nevertheless grant an injunction by reference to other balance of convenience considerations. This is not one of those rare cases.Overall justice[74] I am satisfied that, stepping back and considering where the justice of the case lies overall, it is not appropriate to grant the interim relief sought by the plaintiff. Her alleged losses are financial and can be made good by an award of damages. The financial commitments which she outlines in her evidence will be largely covered by the termination payment to which she is entitled in terms of her agreement with the defendant. Moreover, and an important issue, there is the consideration that a trial of this proceeding may well not take place until 2010, by which time the expiration date of the term of the agreement will be approaching. If an interim injunction is granted, the plaintiff will have already achieved much of what is sought in the substantive proceeding. [75] The balance of convenience factors discussed above, along with the problems associated with each of the causes of action pleaded, strongly suggest the interim relief ought not to be granted.Result[76] The plaintiff's application for an interim injunction is dismissed. The defendant is entitled to costs. Counsel may file memoranda if they are unable to agree.C J Allan J