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Inghams Enterprises Pty Ltd v Hannigan

Inghams Enterprises Pty Ltd v Hannigan

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Case Copied 13 December 2021 15 min read

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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

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

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.

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Details

Case: [2021] NSWCA 309
Decision Date: 13 December 2021

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

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

Full text does not contain this section.

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