Harjai v Fraser - [2015] NSWCA 415

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Harjai v Fraser [2015] NSWCA 415
Hearing dates: 18 December 2015
Decision date: 21 December 2015
Before: Beazley P
Decision:
Notice of motion dismissed with costs.

Catchwords: PRACTICE AND PROCEDURE – interlocutory injunction pending appeal – limited prospects of success
Legislation Cited: Supreme Court Act 1970 (NSW)
Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57
Category: Principal judgment
Parties: Jitender Harjai (Appellant)
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)
Representation:
Counsel:
In person (Appellant)
B Koch (First and Second Respondents)
L Goodchild (Third and Fourth Respondents)
Solicitors:
In person (Appellant)
Sydun & Co Solicitors (Third and Fourth Respondents)

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

Court or tribunal:

Supreme Court

Citation:

[2015] NSWSC 1508

Date of Decision:

16 October 2015

Before:

Ball J

File Number(s):

2014/170416

Judgment

BEAZLEY P: The dispute in this matter concerned the entitlement to stock and fit-out at three clothing shops at a factory outlet centre in Campbelltown (the shops). In his judgment given on 16 October 2015, Ball J declared that the stock and fit-out belonged to the first and second defendants, namely Mr Sunny Gogia and Adia Holdings Pty Ltd.
Mr Jitender Harjai, who was the third defendant in the Court below, has appealed against that order and seeks that it be stayed pending the determination of the appeal. However, it should be noted that the matter in issue on the notice of motion was the question of ownership of or entitlement to the stock.
The proceedings below were brought by way of interpleader by the receivers of Pacific Street Properties Pty Ltd (Receivers and Managers Appointed) ACN 128 479 274 073 and Campbelltown Factory Outlet Pty Ltd (Receivers and Managers Appointed), which owned the premises in which the outlet centre was conducted and in which the stock and fit-out items are stored. The receivers claimed no entitlement in the stock or fit-out. They did not seek to be heard in relation to the substantive proceedings but appeared in order to oppose the stay, as the premises have been sold and settlement of the sale transaction is to take place in mid-March. The premises will have to be cleared of all goods and fit-out items some weeks prior to that.
As will be apparent, the real contest in these proceedings is between Mr Jitender…

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 [2015] NSWCA 415
Case: [2015] NSWCA 415
Decision Date: 21 December 2015

CaseChat Overview and Summary

In *Harjai v Fraser*, the appellant sought an interlocutory injunction to restrain the respondent from taking certain actions pending the determination of an appeal. The specific nature of the dispute and the actions sought to be restrained are not detailed in the provided text. The matter came before Beazley P.

The primary legal issue before the court was whether the appellant had established a sufficient case for the grant of an interlocutory injunction, particularly in light of the limited prospects of success on appeal. This involved considering the established principles for granting such relief, including the likelihood of success and the balance of convenience.

Beazley P determined that the appellant had not demonstrated a sufficient likelihood of success on appeal to warrant the grant of an interlocutory injunction. The court applied the principles governing interlocutory injunctions, which require a strong case to be made out, especially when the injunction would have a significant impact on the respondent. The limited prospects of success weighed heavily against the grant of the relief sought.

Consequently, the notice of motion seeking the interlocutory injunction was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

Notice of motion dismissed with costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Harjai v Fraser [2015] NSWCA 415
Hearing dates:	18 December 2015
Decision date:	21 December 2015
Before:	Beazley P
Decision:	Notice of motion dismissed with costs.
Catchwords:	PRACTICE AND PROCEDURE – interlocutory injunction pending appeal – limited prospects of success
Legislation Cited:	Supreme Court Act 1970 (NSW)
Cases Cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57
Category:	Principal judgment
Parties:	Jitender Harjai (Appellant) 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)
Representation:	Counsel: In person (Appellant) B Koch (First and Second Respondents) L Goodchild (Third and Fourth Respondents) Solicitors: In person (Appellant) Sydun & Co Solicitors (Third and Fourth Respondents)
File Number(s):	2015/321674
Decision under appeal	Court or tribunal: Supreme Court Citation: [2015] NSWSC 1508 Date of Decision: 16 October 2015 Before: Ball J File Number(s): 2014/170416