Inghams Enterprises Pty Ltd v Hannigan

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Inghams Enterprises Pty Ltd v Hannigan [2021] NSWCA 309
Hearing dates: 10 December 2021
Date of orders: 10 December 2021
Decision date: 13 December 2021
Before: Gleeson JA at [1]
Simpson AJA at [34]
Decision:

(1)   Dismiss the summons seeking leave to appeal filed 7 September 2021.

 (2)   Applicant to pay the respondent’s costs.
Catchwords:

APPEALS – leave to appeal – where application for permanent stay of proceedings dismissed – Anshun estoppel pleaded as defence in second proceeding by respondent claiming damages for breach of contract – first proceeding sought declaratory relief as to existence of contract and whether validly terminated by applicant – delay by applicant caused prejudice to respondent – no interim stay sought pending leave application – whether reasonably clear injustice going beyond something that is merely arguable

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 67

Cases Cited:

BC v Minister for Immigration and Multicultural Affairs [2002] FCAFC 221

Boles v Esanda Finance Corporation (1989) 18 NSWLR 666

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287

Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33

Dillon v Boland; Dillon v Cush [2012] NSWCA 364

Egglishaw v Australian Crime Commission (2007) 164 FCR 224; [2007] FCAFC 183

Gibbs & McAllion Lloyd Pty Ltd v Kinna [1999] 2 VR 19; [1998] VSCA 52

Hannigan v Inghams Enterprises Pty Ltd [2019] NSWSC 321

Hannigan v Inghams Enterprises Pty Ltd [2021] NSWSC 641

Inghams Enterprises Pty Ltd v Hannigan [2020] NSWCA 82

Ling v Commonwealth (1996) 68 FCR 180

Mandeville v Better Lending Pty Ltd [2021] SASCA 28

Moubarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

Moubarak v Holt (No 2) [2019] NSWCA 188

O’Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Rahme v Commonwealth Bank of Australia (unreported, NSWCA, 20 December 1991)

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Triantafillidis v National Australia Bank Ltd (1995) V Con R 54 536

Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd (t/as Database Consultants Australia) [2020] FCA 6

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242

Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581

Category:Principal judgment
Parties: Inghams Enterprises Pty Ltd (Applicant)
Francis Hannigan (Respondent)
Representation:

Counsel:
P Braham SC / D Neggo (Applicant)
M Henry SC / D Hughes (Respondent)

Solicitors:
Paradise Charnock O’Brien (Applicant)
Hannigans Solicitors (Respondent)
File Number(s): 2021/192274
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity – Commercial List
Citation:

[2021] NSWSC

Date of Decision:
7 June 2021
Before:
Stevenson J
File Number(s):
2020/313184

Judgment

  1. GLEESON JA: This is an application by Inghams Enterprises Pty Ltd (Inghams) for leave…

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Details
Case
[2021] NSWCA 309
Decision Date

CaseChat Overview and Summary

Inghams Enterprises Pty Ltd (the applicant) sought leave to appeal from a decision of the primary judge who had dismissed its application for a permanent stay of proceedings. The respondent, Hannigan, had commenced a second proceeding claiming damages for breach of contract. The applicant sought to stay this second proceeding on the basis of *Anshun* estoppel, arguing that the issues raised in the second proceeding could and should have been litigated in an earlier proceeding. The earlier proceeding, commenced by the applicant, sought declaratory relief concerning the existence of a contract and its valid termination.

The central legal issue before the Court of Appeal was whether the primary judge erred in dismissing the application for a permanent stay. This required the Court to consider whether the defence of *Anshun* estoppel applied to prevent the respondent from pursuing its claim for damages for breach of contract, or alternatively, whether there were grounds for granting a permanent stay of proceedings. The Court also had to assess whether the applicant had demonstrated a reasonably clear injustice that went beyond something merely arguable, as required for the grant of a permanent stay.

Gleeson JA and Simpson AJA dismissed the summons seeking leave to appeal. Their Honours found that the primary judge had correctly concluded that the applicant had not established the necessary grounds for a permanent stay. The Court noted that the applicant had delayed in seeking the stay, and this delay had caused prejudice to the respondent. Furthermore, the applicant had not sought an interim stay pending the determination of its leave application. The Court was not satisfied that there was a reasonably clear injustice that warranted a permanent stay of the respondent's proceedings.

The summons seeking leave to appeal filed on 7 September 2021 was dismissed, and the applicant was ordered to pay the respondent’s costs.

Orders

Orders of the court

(1) Dismiss the summons seeking leave to appeal filed 7 September 2021.

(2) Applicant to pay the respondent’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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