Harjai v Fraser - [2016] NSWCA 2

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Harjai v Fraser [2016] NSWCA 2
Hearing dates: 1 February 2016
Decision date: 01 February 2016
Before: Basten JA at [15] and [23];
Macfarlan JA at [1];
Meagher JA at [21]
Decision:
(1) The Notice of Motion dated 15 January 2016 filed by the appellant is dismissed.
(2) The appellant is to pay the respondents’ costs of the application.
Catchwords: PRACTICE AND PROCEDURE – interlocutory injunction sought to prevent sale of goods pending appeal – trial judge rejected applicant’s claim to own goods – injunction refused by single judge – application to vary order of single judge – whether reasonable prospects of success on appeal – whether applicant demonstrated prejudice if injunction not granted – whether error shown on part of single judge
Legislation Cited: Supreme Court Act 1970 (NSW), ss 19, 46
Cases Cited: Fraser v Gogia [2015] NSWSC 1508
House v The King [1936] HCA 40; 55 CLR 499
Patrick v Howorth [2002] NSWCA 285
Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143
Category: Procedural and other rulings
Parties: Jitender Harjai (Applicant)
Shaun Robert Fraser in his capacity as joint and several receiver and manager of Pacific Street Properties Pty Ltd (Receivers and Managers Appointed) ACN 128 479 274 and Campbelltown Factory Outlet Pty Ltd (Receivers and Managers Appointed) ACN 122 073723 (First Respondent)
Joseph David Hayes in his capacity as joint and several receiver and manager of Pacific Street Properties Pty Ltd (Receivers and Managers Appointed) ACN 128 479 274 and Campbelltown Factory Outlet Pty Ltd (Receivers and Managers Appointed) ACN 122 073723 (Second Respondent)
Sunny Gogia (Third Respondent)
Adia Holdings Pty Ltd (Fourth Respondent)
Worrells Solvency Forensic Accountants as liquidator of Gogia Holdings Pty Ltd (Fifth Respondent)
Australian Securities and Investments Commission (Sixth Respondent)
Representation:
Counsel:
Applicant self-represented
Mr B Koch (First and Second Respondents)
Ms L Goodchild (Third and Fourth Respondents)
Solicitors:
Applicant self-represented
Sydun & Co Solicitors (Third and Fourth Respondents)

File Number(s): 2015/321674
Decision under appeal

Court or tribunal:

Court of Appeal

Citation:

[2015] NSWCA 415

Date of Decision:

21 December 2015

Before:

Beazley P

File Number(s):

2015/321674

Judgment

MACFARLAN JA: This is an application by Mr Jitender Harjai seeking, in effect, an order under s 46(4) of the Supreme Court Act 1970 (NSW) discharging a judgment and orders given and made by Beazley P in this matter on 21 December 2015: Harjai v Fraser [2015] NSWCA 415.
Mr Harjai seeks an order, that Beazley P declined to make, restraining the third respondent, Mr Sunny Gogia, and the fourth respondent, Adia Holdings Pty Ltd, a company controlled by him, from removing stock and items of fit out from three clothing shops situated in a factory outlet centre in Campbelltown. That centre is owned by companies of which the first and second respondents are receivers and managers. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harjai v Fraser

Details

AGLC: Harjai v Fraser [2016] NSWCA 2
Case: [2016] NSWCA 2
Decision Date: 01 February 2016

CaseChat Overview and Summary

Harjai (the appellant) sought an interlocutory injunction to prevent the sale of certain goods pending an appeal against a trial judge's decision that rejected the appellant's claim of ownership over those goods. The application for the injunction was refused by a single judge, and the appellant then applied to vary that order. The matter came before the Court of Appeal of New South Wales, constituted by Basten, Macfarlan and Meagher JJA.

The Court of Appeal was required to determine whether the appellant had demonstrated a sufficient likelihood of success on appeal to warrant the grant of an interlocutory injunction. Specifically, the court considered whether the appellant had shown that the trial judge had erred in rejecting the claim of ownership, whether there were reasonable prospects of success on appeal, and whether the appellant would suffer prejudice if the injunction were not granted.

The Court of Appeal reasoned that the appellant had failed to demonstrate that the trial judge's decision was affected by error. In the absence of such a demonstration, and without evidence of irreparable prejudice that could not be adequately compensated by an award of damages, the court concluded that the threshold for granting an interlocutory injunction had not been met. The principles applied focused on the need for a strong prima facie case or a serious question to be tried, coupled with an assessment of the balance of convenience, which in this instance favoured refusing the injunction.

The Notice of Motion filed by the appellant was dismissed, and the appellant was ordered to pay the respondents' costs of the application.

Orders

Orders of the court

(1) The Notice of Motion dated 15 January 2016 filed by the appellant is dismissed.

(2) The appellant is to pay the respondents’ costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Harjai v Fraser [2016] NSWCA 2
Hearing dates:	1 February 2016
Decision date:	01 February 2016
Before:	Basten JA at [15] and [23]; Macfarlan JA at [1]; Meagher JA at [21]
Decision:	(1) The Notice of Motion dated 15 January 2016 filed by the appellant is dismissed. (2) The appellant is to pay the respondents’ costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – interlocutory injunction sought to prevent sale of goods pending appeal – trial judge rejected applicant’s claim to own goods – injunction refused by single judge – application to vary order of single judge – whether reasonable prospects of success on appeal – whether applicant demonstrated prejudice if injunction not granted – whether error shown on part of single judge
Legislation Cited:	Supreme Court Act 1970 (NSW), ss 19, 46
Cases Cited:	Fraser v Gogia [2015] NSWSC 1508 House v The King [1936] HCA 40; 55 CLR 499 Patrick v Howorth [2002] NSWCA 285 Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2014] NSWCA 417 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143
Category:	Procedural and other rulings
Parties:	Jitender Harjai (Applicant) Shaun Robert Fraser in his capacity as joint and several receiver and manager of Pacific Street Properties Pty Ltd (Receivers and Managers Appointed) ACN 128 479 274 and Campbelltown Factory Outlet Pty Ltd (Receivers and Managers Appointed) ACN 122 073723 (First Respondent) Joseph David Hayes in his capacity as joint and several receiver and manager of Pacific Street Properties Pty Ltd (Receivers and Managers Appointed) ACN 128 479 274 and Campbelltown Factory Outlet Pty Ltd (Receivers and Managers Appointed) ACN 122 073723 (Second Respondent) Sunny Gogia (Third Respondent) Adia Holdings Pty Ltd (Fourth Respondent) Worrells Solvency Forensic Accountants as liquidator of Gogia Holdings Pty Ltd (Fifth Respondent) Australian Securities and Investments Commission (Sixth Respondent)
Representation:	Counsel: Applicant self-represented Mr B Koch (First and Second Respondents) Ms L Goodchild (Third and Fourth Respondents) Solicitors: Applicant self-represented Sydun & Co Solicitors (Third and Fourth Respondents)
File Number(s):	2015/321674
Decision under appeal	Court or tribunal: Court of Appeal Citation: [2015] NSWCA 415 Date of Decision: 21 December 2015 Before: Beazley P File Number(s): 2015/321674