The High Court has refused an interlocutory injunction sought by Wesumat (Ireland) Limited to prevent Topaz Energy Limited from ending a car-wash maintenance agreement and appointing another service provider. The court found there was a fair issue to be tried over the contract’s termination terms, but concluded that damages would be an adequate remedy if Wesumat ultimately succeeded.
The proceedings began with a plenary summons issued on 29 May 2008. Wesumat sought declarations that the agreement had not been validly terminated, that Topaz was estopped from relying on a termination letter, and that it had wrongfully sought to end the agreement. It also sought injunctive relief pending the hearing of the case and proposed, in the alternative, to seek rectification of the agreement’s termination clause.
The dispute concerns an agreement the parties operated from February 2007 for maintenance and repair of car washes at Topaz service stations. Wesumat said the agreement could be terminated only for a failure to perform contractual obligations or pay sums due. Topaz argued that it could terminate without cause on three months’ notice. The court noted that the agreement appeared not to have been finally executed and that drafts were still being revised in April 2007.
Topaz gave written notice by fax on 6 March 2008, effective 5 June. Wesumat relied on evidence from its representative and former Topaz employee Ken Kearney that the parties intended a three-year agreement terminable only for specified failures. Topaz pointed to the wording of the draft agreement, the parties’ conduct and delay in bringing the case. The judge said Wesumat faced significant difficulties, including emails that could indicate it had accepted the termination, but did not decide those issues at this stage.
The judge held that the disputed termination terms raised a fair issue for trial. He declined, on this application, to bar Wesumat’s claim for delay or acquiescence, saying the issues could be helped by document discovery and witness cross-examination.
However, the court found that the losses Wesumat described were quantifiable commercial losses and that Topaz could pay any damages awarded. Even if termination led Wesumat to close, the judge concluded damages would be adequate. He also said an early hearing could be arranged and that, if required to consider the balance of convenience, it would favour refusing interim relief. The court did not determine the underlying contract dispute or the proposed rectification claim. It refused the relief sought in the notice of motion.