Total sues Charles Chen

Jamaica's Supreme Court has barred three petrol stations controlled by, or associated with, businessman Charles Chen from selling petroleum and car-care products until the court hears, and rules on, a claim by petroleum marketing company Total Jamaica that they have failed to pay their bills, or adhere to their agreement to sell its products.

Chen and Tikal Limited, which trades as Super Plus Food Stores, according to the court documents - of which Chen is a director - as well as another related company, Super Plus Trucking and Equipment, are expected to appeal the ruling by Justice Patrick Brooks or use other legal manoeuvres to have the injunction lifted.

The petrol stations involved are located at:

• Norris, at Yallahs, St Thomas;
• Spur Tree, Manchester; and
• Main Street, St Cruz, St Elizabeth.

All carry Total's livery, but the company insists that since May, and up to the time of this week's injunction, they have not been selling its products.

Total says that the action by the owners of the service stations not only breached their dealership agreement but could cause damage to the company's brand.

The company brought that issue to public attention last week with a press advertisement that the petrol stations with which it in dispute did carry its products, so it was "unable to guarantee the quality or specifications of the fuels sold at these stations".

Chen shot back angrily in an interview with the Financial Gleaner: "My lawyer and I are looking into whether the wording of the advertisement is an assault on my character. We are taking it under consideration, if it is libellous."

The basis of the injunction is France-based Total's claim on the service stations for more than $18 million for petroleum products it delivered prior to its May cut-off supplies, as well as its insistence that Chen et al perform in accordance with their dealer's contract. The stations and Total have had an ongoing quarrel about the price at which Total delivered its products.

However, Garth McBean, the lawyer representing Chen and the respondents, argued that barring the service stations from selling petroleum products was detri-mental to their business and the court could find other remedies to secure Total's interest in the event that it prevails in the substantive case.

But said Justice Brooks: "In my view, the defendants have not shown that obedience to the terms of the contract would be devas-tating to their business. Mr McBean submitted that if the injunction were granted, the defendants would have to close their respective businesses. Implicit in that submission is an admission that the defendants have been selling other products in breach of the dealer agreement."

Justice Brooks also noted that Total's lawyer, Carol Davis, had indicated that her client was prepared to supply products to the stations "during the period of the injunction, provided that it was a cash-on-delivery basis".

"What Total requires of the defendants is to sell Total's products," Justice Brooks noted.

The judge also rejected a suggestion by the defendants' lawyer that Total could protect its brand by removing its signage from the premises.

"I cannot agree with Mr McBean that that is an appropriate response by defendants who are said to be in breach of a contract," said the judge.

"My reading of the contract reveals that there are procedures for bringing the contracts to an end. If it is that the defendants wish to terminate the contracts, then they should, each of them, adopt that procedure."

Justice Brooks also rejected the defendants' claim of his inability to grant the injunction because Total had no contract with Super Plus Trucking and Equipment, which ostensibly operates the service stations.

"The respective contracts prevent the defendants assigning the agreement without Total's consent," Justice Brooks said. "No such consent has been exhibited. The defendants could not properly hope to avoid the terms of the contract by simply handing over the petrol station to another entity."

business@gleanerjm.com