Lantrak Holdings Pty Ltd v Yammine - [2023] FCAFC 156

FEDERAL COURT OF AUSTRALIA
Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156

Appeal from:
Yammine v Lantrak Holdings Pty Ltd (No 2) [2023] FCA 162

Yammine v Liemant [2022] FCA 1480

File numbers: NSD 309 of 2023
NSD 1158 of 2022

Judgment of: LEE, BUTTON AND JACKMAN JJ

Date of judgment: 26 September 2023

Catchwords:
CONSUMER LAW – whether primary judge erred in finding respondents had proved words spoken with a sufficient degree of precision to enable Court to be satisfied they were misleading – where promise made to “honour the deal” or pay “the balance” between non-binding heads of agreement and sale agreement did not specify sum of balance – pleaded representation not proved – ground of appeal established

DAMAGES – whether primary judge erred in determining compensation payable for misleading or deceptive conduct – whether appropriate measure of damages the difference between real value of business acquired and price paid for it, or value of loss of commercial opportunity to sell business for a higher price – where no expert evidence led as to value of business – where damages for loss of chance not pleaded – appellants denied procedural fairness in a material way – ground of appeal established

PRACTICE AND PROCEDURE – whether primary judge erred in deciding to stay permanently related proceedings on the basis that their continuation would amount to an abuse of process – whether leave to appeal should be granted –primary judge did not impermissibly elevate overarching purpose of practice and procedure provisions in Federal Court of Australia Act 1976 (Cth) – two sets of proceedings inseparably connected – leave to appeal granted – appeal dismissed

Legislation:
Competition and Consumer Act 2010 (Cth) Sch 2, ss 4, 4(1), 4(2), 18, 18(1), 236, 236(1)

Evidence Act 1995 (Cth) Ch 2, ss 4(1)(b), 11, 27, 29(1), 192(2)

Federal Court of Australia Act 1976 (Cth) ss 37M, 37M(1)(b), 37N(1)

Supreme Court Rules 1970 (NSW)

Cases cited:
AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269
Batistatos v Roads and Traffıc Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Belconnen Lakeview Pty Ltd v Lloyd [2021] FCAFC 187; (2021) 156 ACSR 273
Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225
CBRE (V) Pty Ltd v Trilogy Funds Management Limited [2021] NSWCA 316; (2021) 107 NSWLR 202
Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575
Dodoro v Knighting [2004] VSCA 217; (2004) 10 VR 277
Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Gan v Xie [2023] NSWCA 163
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221
House v The King (1936) 55 CLR 499
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640
Jago v District Court of NewSouth Wales (1989) 168 CLR 23
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564
Johnson v Gore Wood & Co [2002] 2 AC 1
Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381
Kizbeau Pty Ltd v WG&B Pty Ltd (1995) 184 CLR 281
Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 142 ACSR 445
Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235
Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497
Moubarak v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398
Orikan Group Pty Ltd v Vehicle Monitoring Systems Pty Ltd [2023] FCA 1031
Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35
Potts v Miller (1940) 64 CLR 282
Re Luck [2003] HCA 70; (2003) 203 ALR 1
Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Selvaratnam v St George – A Division of Westpac Banking Corporation (No 2) [2021] FCA 486
Stead v State Government Insurance Commission (1986) 161 CLR 141
Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244
Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd [2014] VSCA 351; (2014) 45 VR 585
Trilogy Funds Management v CBRE (V) Pty Ltd [2021] NSWSC 883
Tyne v UBS AG [2016] FCA 241; (2016) 338 ALR 624
UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77
Walton v Gardiner (1993) 177 CLR 378
Watson v Foxman (1995) 49 NSWLR 315
Williams v Spautz (1992) 174 CLR 509
Yammine v Lantrak Holdings Pty Ltd (No 2) [2023] FCA 162
Yammine v Lantrak Holdings Pty Ltd [2022] FCA 179
Yammine v Liemant [2022] FCA 1480

The Hon Murray Gleeson AC, ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000)

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 331

Date of hearing: 21–22 August 2023

Counsel for the appellants in NSD 309 of 2023 and the respondents in NSD 1158 of 2022: Mr AJ Bannon SC and Ms ZM Hillman

Solicitor for the appellants in NSD 309 of 2023 and the respondents in NSD 1158 of 2022: Arnold Bloch Leibler

Counsel for the respondents in NSD 309 of 2023 and the applicants in NSD 1158 of 2022: Ms R Higgins SC, Mr L Hawas and Mr L Moretti

Solicitor for the respondents in NSD 309 of 2023 and the applicants in NSD 1158 of 2022: Baker McKenzie

ORDERS

NSD 309 of 2023

BETWEEN:
LANTRAK HOLDINGS PTY LIMITED

First Appellant

GARY ROBERT LIEMANT

Second Appellant

AND:
NORMAN YAMMINE

First Respondent

NJA PTY LIMITED

Second Respondent

ORDER MADE BY:

LEE, BUTTON AND JACKMAN JJ

DATE OF ORDER:

26 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders of the primary judge made on 3 March 2023 be set aside.
3.The further amended statement of claim be dismissed.
4.The respondents pay the appellants’ costs both of the proceedings at first instance and of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

NSD 1158 of 2022

BETWEEN:
NORMAN YAMMINE

First Applicant

NJA PTY LTD

Second Applicant

RECYCLING AND TRANSPORT SOLUTIONS PTY LTD

Third Applicant

AND:
MARK LIEMANT

First Respondent

GARY LIEMANT

Second Respondent

LANTRAK NSW PTY LTD

Third Respondent

ORDER MADE BY:

LEE, BUTTON AND JACKMAN JJ

DATE OF ORDER:

26 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.The applicants be granted leave to appeal.
2.The appeal be dismissed.
3.The applicants pay the respondents’ costs of the application for leave to appeal and of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
LEE J:

I have had the opportunity of reading the reasons of Button J and Jackman J. I will adopt the abbreviations used by Jackman J.
Their Honours have set out the relevant facts and reasoning of the primary judges in both Lantrak I and Lantrak II, as well as the grounds of appeal in Lantrak I, and the draft grounds of appeal in Lantrak II.
Lantrak I
It is logical to commence with what amounts to a procedural fairness issue and, by reason of my conclusion as to this issue, it is sufficient to determine this appeal by reference to part of Ground 4.
As explained in detail by Jackman J, the Liemant Parties challenge the primary judge’s conclusion the Yammine Parties suffered loss by reason of the Liemant Parties’ contravening conduct: PJ (at [260]). The primary judge held that in reliance on the representation found to be conveyed, the Yammine Parties lost the opportunity to negotiate a higher price for their shares and were entitled to compensation under s 236(1) of the ACL in the amount of $7.25 million, representing the value of the loss of that chance: PJ (at [260], [264], [267]–[268]).
By Ground 4, the Liemant Parties contend the primary judge erred in determining compensation was payable. The Liemant Parties state eleven particulars in support of Ground 4, expressed in the following terms:
(a)The primary judge determined an amount of compensation on the basis of a lost opportunity case and related methodology which was not advanced by the Respondents, not supported by evidence and which the Appellants were not given a fair opportunity to address both by way of cross-examination, evidence and submissions in denial of natural justice.
(b)The only claim advanced by the Respondent was that the consideration in the Sale Agreement was at an undervalue and the Respondents’ measure of damages was the difference in that consideration and the amount representing the real value of the business, in circumstances where there was no evidence as to what the real value of the business was or that the consideration was at an undervalue.
(c)The primary judge erred in finding that the entry into the Sale Agreement represented a loss of a valuable opportunity without evidence that the consideration therein represented an undervalue.
(d)The primary judge failed to take account of the absence of any evidence from Mr Yammine that he was prepared to accept any price other than the claimed represented price or as to the terms of a non-compete agreement and the adverse inference to be drawn from the absence of such evidence.
(e)The primary judge failed to have regard to the Liemant Parties’ evidence as to the value of the Lantrak NSW Business and their contemporaneous perception of its value.
(f)The primary judge wrongly inferred, in the absence of the position being put to the Liemant Parties, that the Yammine Parties could have obtained a better price for their interests in the Lantrak NSW Business in the course of negotiating the Sale Agreement (J[252]).
(g)The primary judge failed to give sufficient weight to the unchallenged evidence concerning the lack of availability of funding to the Lantrak Parties to meet the cost of the acquisition of the Yammine Parties’ interests in the Lantrak NSW Business (J[257]).
(h)The primary judge failed to account for the whole of the consideration paid by the Liemant Parties for the Lantrak NSW Business under the terms of the Sale Agreement.
(i)The primary judge failed to account for the fact that the shares the subject of the Sale Agreement were for only a half interest in the Lantrak NSW Business, not the whole of the business, and instead used figures and a valuation methodology applicable to the whole of the Lantrak NSW Business;
(j)The primary judge failed to account for the value Mr Yammine had obtained for himself by reason that he had not entered into a non-compete agreement, and did not account for the impact of the absence of a non-compete agreement on the value of the Lantrak NSW Business;
(k)The primary judge erred by adopting an incorrect value of EBIT for the year ended 30 June 2018, being an annualised estimate based on management accounts of $5,883,000 (J[122]) when the audited accounts of the Lantrak NSW Business demonstrate, on the primary judge’s methodology, a significant overpayment to the Respondents.
As can be seen, Ground 4 is, in effect, two distinct grounds: first, a contention it was not open to the primary judge to characterise the claim for statutory compensation as his Honour did and proceed to determine the claim on that basis; and secondly, even if it was open to the primary judge to proceed on that basis, there were errors evident in assessing the evidence in support of the claim.
It is only necessary to deal with the first of these contentions and it is well to commence by tracing how the claim for statutory compensation was pleaded and then developed below.
In the further amended statement of claim, being the extant pleading at the time of the hearing and on appeal, at [20], the Yammine Parties contended:
By reason of the said contravention of the ACL, the Yammine Interests suffered loss and damage in the amount of $22 million and are entitled by virtue of s 236 of the ACL to recover that loss and damage from [Lantrak Holdings] and Gary Liemant, which provision applies to Gary Liemant by reason of ss 28 and 32 of the [Fair Trading Act 1987 (NSW)].
(Emphasis added).
The Yammine Parties’ written opening submissions suggested no deviation from the pleaded claim. In Section B, tellingly headed, “The claim for $22 million”, it was simply asserted the Yammine Parties “relied upon the contract and suffered loss” as a result of conduct alleged to be in contravention of s 18 of the ACL (at [21]). At the hearing, no oral opening submissions were made (T2.14–24) and thereafter no evidence in chief was adduced from any of the witnesses called by the Yammine Parties as to an identified loss of opportunity. The Yammine Parties’ written closing submissions were silent as to any change to the pleaded basis of their claim for statutory compensation; Section B (again, entitled “The claim for $22 million”) did no more than restate the Yammine Parties “relied upon the conduct and suffered loss” (at [25]).
The Liemant Parties’ written closing submissions made something of the failure of the Yammine Parties to develop, and lead evidence as to, their pleaded claim for statutory compensation. At [120] it was submitted, correctly, that:
[t]o establish loss or damage such as to warrant the making of an order under s. 237 of the ACL, the Yammine Parties needed to demonstrate some form of quantified loss, ordinarily by reference to a counterfactual to the conduct sought to be impugned. This has not been done.
The Yammine Parties responded to this contention in their reply submissions (at [18]) as follows:
It is asserted at RCS [120] that the Yammine Interests have not specified the loss they suffered by reason of the Liemant Interests’ alleged misleading and deceptive conduct. As to quantification of the relevant loss, ‘the courts have consistently held that the proper measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it’ [Kizbeau Pty Ltd v WG&B Pty Ltd (1995) 184 CLR 281, 291 (Brennan, Deane, Dawson, Gaudron and McHugh JJ)]. The evidence at trial was that a partner of PWC, Sanjiv Jeraj, said that a business such as Lantrak NSW was to be valued at five times the forecast EBIT of $7 million,[footnote omitted] although the Liemant Interests assert that the forecast of $7 million diminished during the negotiation. In such circumstances, the Yammine Interests say that the loss is the difference between the value of the business ($35 million) and the amount received by the Liemant Interests ($13 million).
The two footnotes to this paragraph are important. The first, a reference to Kizbeau Pty Ltd v WG&B Pty Ltd (1995) 184 CLR 281 (at 291 per Brennan, Deane, Dawson, Gaudron and McHugh JJ), demonstrates the Yammine Parties’ reliance on the principle in Potts v Miller (1940) 64 CLR 282 (at 297–298 per Dixon J), that the measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it. The second sets out the (limited) evidence in support of this case, in particular, referring to Mr Liemant’s explanation (at T430.30–34) that Mr Jeraj of PwC suggested “that businesses of this nature typically go for a multiple of five times [EBIT] and less debt … [Mr Yammine] said, ‘Well, I will – I will make sure there is no debt’”.
The primary judge referred to the issue during oral closing (T26.11–45), understandably asking how one was to “value this loss or damage from the loss of the commercial opportunity, in effect, to make a contract for $22 million more than you did make?” Mr Crutchfield QC, who appeared below for the Yammine Parties, confirmed their position remained as stated in their reply submissions (at T26.39–27.21):
MR CRUTCHFIELD: Well, we say and we’ve said in our reply submissions, your Honour, that the tortious measure of damage in those circumstances is the difference 40 between the real value of the thing acquired and the price that was paid for it, and the - - -
HIS HONOUR: But I don’t have any evidence of the real value of the thing acquired.
MR CRUTCHFIELD: Well, we know – it was common ground that this business was being valued at five times EBIT, the forecast EBIT of $7 million.
HIS HONOUR: But I don’t have any evidence about a valuation of that. I’ve just got – you’re pulling out some figures and saying, well, that was what it is.
MR CRUTCHFIELD: Well, it’s more than just us pulling out figures. That – it was Mr Liemant’s evidence as well ...
HIS HONOUR: Yes, but this is a Sellars v Adelaide Petroleum situation. Right.
MR CRUTCHFIELD: Yes.
HIS HONOUR: So we’re dealing with a loss of a commercial opportunity to acquire – to sell a business for more than the $13 million on the promise, that was misleading, that, “I will pay you another 22.”
MR CRUTCHFIELD: Yes. That’s right, your Honour. We accept that.
But senior counsel neither suggested nor developed any submission in reliance on Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 (at 348 per Mason CJ, Dawson, Toohey and Gaudron JJ), which would have involved contending the loss suffered was the loss of a commercial opportunity to negotiate a different, more financially favourable transaction. Instead, consistently with the pleaded case and Potts v Miller, he invited the primary judge to do “as best as your Honour can on the evidence – although, if your Honour were to find for us on this point, it would, of course, be open to your Honour to call for further evidence about what the value of the business was at the time, but we would submit that the evidence is there”: T27.46–28.3.
In response, senior counsel for the Liemant Parties, Mr Finch SC, criticised the suggestion that any loss of a chance case was being run, correctly submitting that “the whole case was never conceived of in that way” (T33.35) and the pleaded case referred only to damages in the order of $22 million: T33.17. Mr Finch also referred to the defects in the collateral contract and estoppel cases and engagingly submitted the whole misleading and deceptive conduct case was “another example of what Bryson J used to call the same horse with a jockey with different colours sitting on top of it, and his usual next line was that the other nags failed to earn their hay”: T33.37–40.
As a review of the transcript makes plain, contrary to the submissions of the Yammine Parties, senior counsel for the Yammine Parties below did not “embrace” the proposition that a loss of opportunity case was open; indeed, highly experienced senior counsel, who knew how the case of his clients had been pleaded and run, did not move beyond the proposition that the Court should award compensation determined as the difference between the “real value” of the thing acquired and the price paid for it and, understandably, an implicit acceptance that it was open for the judge to conclude there was an infirmity in the evidence of value, which might require additional evidence.

As I explained in Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 142 ACSR 445 (at 533 [350]), it is necessary in a loss of opportunity case to specify the relevant opportunity, the material facts relied upon, and the amount of damages claimed. Usually, and ideally, this is done by a proper pleading of the type identified by Jackson J in Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221 (at [50]–[51]), but at the very least, it is necessary to apprise the party meeting a loss of opportunity case of the case being run at the commencement of the case and the material facts relied upon in a way sufficient to provide procedural fairness. Not only was this not done, but given the pleading and written opening, it was not attempted and, unsurprisingly in these circumstances, no direct evidence was adduced by the Yammine Parties as to these matters.
In my respectful view, in these circumstances, the primary judge ought not to have made what the Liemant Parties contended on appeal was the “unrequested and unexpected” finding of an unpleaded and undeveloped loss of opportunity case: Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1 (at 9 [33] per Gleeson CJ and Heydon J). One readily understands why, given his Honour’s findings as to contravening conduct, he considered that some statutory compensation should logically follow. But the record demonstrates the statutory compensation case his Honour upheld was not run and the Liemant Parties were prevented from having the opportunity not only to procure any relevant admissions from Mr Yammine, but also to adduce any evidence in chief they may have wished to lead as to the alleged loss of opportunity.
Ground 4 is made out.
On appeal, and consistently with the view expressed by the primary judge, the Yammine Parties’ present senior counsel, during her highly cogent submissions, understandably did not suggest the evidence adduced before the primary judge was sufficient to make out the pleaded case for Potts v Miller loss. I agree with Jackman J that there can now be no remitter to rehear the question of loss. Every opportunity was given to allow sufficient evidence to be adduced and there was a failure to do so. Moreover, the point in time at which the Yammine Parties were to articulate any claim for loss of opportunity has now passed.
Although it is unnecessary to deal with any further grounds, I agree with Button J as to why particular (a) of Ground 1 is also made out.
For completeness, I make two further points, which are unnecessary for the disposition of the appeal.
The first is one leaves this case with a nagging sense of disquiet as to whether one can be satisfied that what really went on between the parties was revealed in the evidence. This is no fault of his Honour. It is notable that attempts to reduce the 2016 agreement to writing appeared to founder not because of any initial failure to provide instructions to document the agreement, but after steps had been taken to document the transaction and at a time when complications as to the capital gains tax consequences of the transaction emerged. In these circumstances, the mutual position of the parties that potential tax implications played no part in informing what was discussed and the structure and nature of the deal struck in 2018 strikes one as intuitively surprising.
The second relates to Jackman J’s observations, at [277]–[278] below, as to the way in which evidence in chief was adduced below. Reasonable minds differ on this point. It is important to ensure an inarticulate, nervous, or poorly educated witness does not encounter barriers in giving evidence in chief. Each case is different, and the lodestar in making the case management decision as to the mode of receiving evidence in chief is what best facilitates the resolution of issues “according to law, and as quickly, inexpensively and efficiently as possible”: see s 37M(1)(b) of the FCA Act. A controversy determined “according to law” is a resolution that is just and, as Gleeson CJ observed in relation to a cognate provision of the then Supreme Court Rules 1970 (NSW), there is a reason why there is a comma after the word “just”: the Hon Murray Gleeson AC, ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000).
While recognising that a just outcome in different cases and involving different types of witnesses will likely call for differing modes of receipt of evidence in chief, as a general proposition, I adhere to the view I expressed in Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at 253–254 [24]–[27]):
24… at the first case management hearing (FCMH), I raised with the parties my preference that evidence in chief in relation to controversial facts be led orally. In doing so, I had in mind both the terms of the Practice Note and the sort of considerations thoughtfully discussed by the Hon Justice A Emmett writing extra-judicially in his article, ‘Practical Litigation in the Federal Court of Australia: Affidavits’ (2000) 20 Australian Bar Review 28, where that very highly experienced judge observed (at 28):
Where an assessment of credit is required, a judge will have a much better prospect of assessing a witness who gives evidence in chief orally rather than being exposed to cross-examination immediately upon entering the witness box.
25Qantas expressed a “strong preference” for affidavits … and senior counsel of the Union perceived some advantages in written evidence in chief, despite my indication … that:
I’m always conscious of what Lord Buckmaster said – and this is no [reflection on] any party, but it’s a famous quote that used to be repeated constantly by the Honourable T.E.F. Hughes AO QC, and that is that the truth comes out of affidavits like water from a leaky well, whereas people come along and tell their story in the witness box, there might be a better chance of the account being given in a more spontaneous way, and it may save a lot of money and cost and time.
26This aphorism was one I had mentioned in Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 377 ALR 234 (at 269 [110]–[113]), where I also repeated the comment made by Lord Woolf MR contained in the Access to Justice Report, Final Report (HMSO), 1996 (at [55]) that:
Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.
27In citing my observations in Lloyd v Belconnen with apparent approval in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785, Nettle and Gordon JJ observed (at 810 [112]) (footnotes omitted):
The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge’s assessment of it, that is of paramount importance.
Lantrak II
I agree with Button J’s observations as to the necessity for leave to appeal, but like Jackman J, and for the reasons his Honour gives, I would grant leave but dismiss the appeal.
Given the decision of the primary judge, it is unnecessary to consider the correctness of his Honour’s refusal of “leave” to cross-examine Mr Yammine on the matters canvassed in his affidavit: PJ (at [83]). In adopting that course, his Honour applied a line of authority developed in some States prior to the introduction of the Evidence Act 1995 (Cth) (EA) and its cognates and summarised by Nicholson J in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 (at 272) as follows: “there is clearly a discretion in the Court to permit cross-examination on affidavits or otherwise. In interlocutory matters ... such a discretion is normally exercised somewhat sparingly” (citation omitted). That statement has apparently been approved in this Court on numerous occasions: see Selvaratnam v St George – A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 (at [43]–[45] per Stewart J).
Although the point does not arise for decision (and notwithstanding it is understandable the primary judge approached the issue the way he did given the state of the authorities), the apparent difficulty with this approach is that the EA applies to interlocutory proceedings (s 4(1)(b)), s 27 provides that “[a] party may question any witness, except as provided by this Act” and s 29(1) provides that “[a] party may question a witness in any way the party thinks fit, except as provided by [ch 2 of the EA] or as directed by the court”. Although the Court has an express (s 11) and implied power to control the conduct of a proceeding (except so far as the EA provides otherwise expressly or by necessary intendment), given the terms of ch 2, it seems to me the question of whether cross-examination should occur on an interlocutory application is more properly framed as whether a direction should be made that it does not occur. When properly framed, it can be seen the mandatory considerations in s 192(2) of the EA apply to considering whether a direction ought to be made and it is difficult to understand how this can be reconciled with the notion that a form of “leave” needs to be sought and that such “leave” is normally granted “somewhat sparingly”. Although as a practical matter the result may be the same (in that a direction there be no interlocutory cross-examination would no doubt often be appropriate), and with respect to those who have expressed a different view, it is not evident to me that the pre-EA approach is the right starting point or frame of analysis.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.
Associate:
Dated: 26 September 2023
REASONS FOR JUDGMENT
BUTTON J:
TABLE OF CONTENTS

LANTRAK 1

[29]

Ground 1

[30]

Ground 4

[38]

LANTRAK 2

[39]

Introduction

[39]

Background facts

[43]

The parties and the claims advanced in the two proceedings

[45]

Procedural aspects of Lantrak 1 and Lantrak 2

[60]

The hearing of the interlocutory application

[66]

The primary judge’s reasons

[79]

The grounds of appeal

[94]

Whether leave to appeal is required: interlocutory or final decision

[95]

Legal principles: abuse of process

[108]

Consideration

[127]

The extent of the overlap

[133]

The course of trial: any factual overlap largely of the Liemant parties’ making

[144]

The Liemant parties’ new argument on appeal: the whole of business valuation issue

[157]

Other matters

[163]

The significance of the solicitors’ correspondence

[163]

Delay and inefficiency

[164]

Differences in the parties

[167]

Conclusion

[168]

LANTRAK 1

I have had the benefit of reading, in draft, the reasons of Lee J and Jackman J concerning the appeal in Yammine v Lantrak Holdings Pty Ltd (No 2) [2023] FCA 162 (Lantrak 1).
Ground 1
I agree with Jackman J that the appeal ought to be allowed on the basis that the primary judge erred in finding that the representation in question was made at all, or with sufficient precision to be actionable: ground 1, particular (a). While I generally agree with much of Jackman J’s analysis of the evidence, I reach the conclusion that the appeal ought to be allowed on ground 1 on a more confined course of reasoning.
The representation pleaded was that Gary Liemant (Mr Liemant) and Lantrak Holdings Pty Ltd (Lantrak Holdings) represented that “they would honour the September 2018 Heads of Agreement and would pay the balance of the original price of $35 million attributable to the Yammine Interests Shares, being $22 million”: Further Amended Statement of Claim at [16]. The Heads of Agreement signed by Mr Liemant did not specify any price for the shares in Lantrak NSW Pty Ltd (Lantrak NSW). Rather, it specified a total consideration of $47.5 million and the parties agreed to negotiate in good faith with respect to the allocation of that sum between the Business, Inventory and Truck Shares Price, the Share Price and the Unit Price as those terms were defined. Of those multiple assets, it was the Share Price that related to the shares in Lantrak NSW. The representation, as pleaded, could never succeed on its terms as “honouring” the Heads of Agreement only bound the Liemant interests to negotiate in good faith as to the portion of the total consideration to be attributable to the shares in Lantrak NSW; it did not specify a price of $35 million for those shares.
However, the trial was contested on grounds that went beyond the confines of the representation, as it was pleaded by reference to the signed Heads of Agreement. No complaint was made on appeal on that score.
As Jackman J has addressed in detail, the sum of $35 million for the Yammine interests’ shares in Lantrak NSW was not agreed by Mr Liemant. Mr Liemant accepted that Mr Yammine expected to be paid $35 million for those shares. Mr Liemant could fairly be criticised for not disabusing Mr Yammine of that expectation and for trading in ambiguities, but the evidence does not reveal any representation, express or implied, by Mr Liemant that the Yammine interests’ shares in Lantrak NSW would be acquired for $35 million. The high point of the evidence concerning the $35 million figure was Mr Liemant’s acceptance that the negotiation at the second meeting at PwC’s offices proceeded by reference to a price of five times EBIT, and that Mr Yammine had put forward $7 million as the EBIT figure, so they discussed five times an EBIT of $7 million. However, the evidence did not go so far as Mr Liemant having accepted that figure as the price to be paid for the shares in Lantrak NSW.
The critical conversation was the conversation between Mr Yammine and Mr Liemant on 9 October 2018. While, as Jackman J has noted, the exchange recorded in transcript extracted by the primary judge (Lantrak 1 at [91]) was not introduced on the basis that it recorded the conversation of 9 October 2018, in my view the content of the conversation in the context of other witnesses’ evidence suggests it was the conversation of 9 October 2018.
Mr Yammine’s evidence of that conversation was that Mr Liemant said, “I always honour what I sign”: Lantrak 1 at [91]. Mr Yammine also gave evidence of a conversation he had with Mr Liemant (which the primary judge found was the same conversation), in which Mr Liemant said, “I will always get this deal done that I signed. I will always honour it”: Lantrak 1 at [92]. To the extent that the Yammine parties’ case rested on Mr Liemant having said on one or more occasions that “I honour what I sign”, such statements did not convey a representation that the Liemant interests would pay $35 million for the shares in Lantrak NSW. All that Mr Liemant had signed was the Heads of Agreement, which specified no price for the Lantrak NSW shares.
Mr Yammine’s evidence was that, during the same conversation, Mr Liemant also said he would “work out something that I can give you for now, … and then I will be able to get the rest”, “I will honour you”, “I will make this right”. Other witnesses who overheard the call on 9 October 2018 gave evidence of Mr Liemant saying he would “honour the rest”: Lantrak 1 at [97], [98].
While I would not go as far as Jackman J in explaining statements of this kind as referring to the outcome of future negotiations, such ambiguous statements by Mr Liemant do not convey a representation that Mr Liemant or the Liemant interests would pay the Yammine interests the balance between the amount to be paid for the shares under the Sale and Purchase Agreement (the SPA) (executed on 12 November 2018) and $35 million. As I have said, Mr Liemant was trading in ambiguities, but that does not make good the representation asserted in the context where there was no clear consensus as to the price for the shares to begin with.
Ground 4
I otherwise agree with the reasons of Lee J in relation to ground 4 and agree with his Honour that it is unnecessary to address the balance of the grounds of appeal.
LANTRAK 2
Introduction
On 1 June 2022, Rares J reserved judgment in Lantrak 1. Shortly after judgment in Lantrak 1 was reserved, Norman Yammine and others commenced another proceeding (Lantrak 2) on 28 June 2022. Gary Liemant and the other respondents in Lantrak 2 promptly foreshadowed an application contending that Lantrak 2 was an abuse of process, which application was commenced by interlocutory application on 5 September 2022.
Lantrak 2 was commenced by originating application and concise statement, both of which were amended on 16 August 2022.
The primary judge heard the interlocutory application for a permanent stay on 23 November 2022 and, on 9 December 2022, delivered reasons concluding that Lantrak 2 was an abuse of process: Yammine v Liemant [2022] FCA 1480 (PJ). Orders were made permanently staying Lantrak 2. The appellants brought an application seeking leave to appeal.
In my view, for the reasons which follow, leave ought to be granted and the appeal allowed.
Background facts
The primary judge set out the relevant background facts concerning Lantrak 1 and Lantrak 2: PJ [6]–[56]. No issue was taken with the accuracy of his Honour’s summary.
To put what follows in context, it is necessary to set out some aspects of the background, which was more fully set out by the primary judge.
The parties and the claims advanced in the two proceedings
Lantrak 1 concerned the terms on which a business venture involving Mr Yammine (and his corporate interests) and Mr Liemant (and his family’s corporate interests) came to an end.
The parties to Lantrak 1 were Mr Yammine and NJA Pty Ltd (NJA) as trustee for the NJA Family Trust (a family trust of Mr Yammine). NJA held 50% of the shares in Lantrak NSW. The other 50% was held by Lantrak Holdings, a family vehicle of Mr Liemant and his brother Mark Liemant.
In Lantrak 1, Mr Yammine and NJA claimed that, in addition to the sum of $13 million which Lantrak Holdings agreed to pay to purchase the Yammine interests’ shares in Lantrak NSW pursuant to a written agreement entered into on 12 November 2018 (ie the SPA), Mr Yammine had agreed with Mr Liemant that the Yammine interests would be paid an additional $22 million, being the balance of what was said to have been the original price ($35 million) agreed under non-binding Heads of Agreement entered into in September 2018. The first claim advanced in Lantrak 1 was for breach of that alleged oral collateral contract.
The second claim advanced in Lantrak 1 asserted that the Liemant interests were estopped from resiling from a promise to pay the Yammine interests the further sum of $22 million.
The third claim advanced in Lantrak 1 asserted misleading or deceptive conduct on the basis that, prior to entry into the SPA, Lantrak Holdings and Mr Liemant represented to the Yammine interests that they would honour the earlier Heads of Agreement and would pay the balance of the original price attributable to the Yammine Interests’ shares, namely $35 million.
The fourth, and final, claim advanced in Lantrak 1 was an alternative claim that, on or about 11 October 2019, Lantrak Holdings and Mr Liemant agreed to pay Mr Yammine $10 million for entry into a “non-compete” for a period of 10 years.

As the primary judge observed (PJ [35]), the claims advanced in Lantrak 1 related to the “dissolution of the commercial relationship between the Yammine and Liemant interests that found expression in the business of Lantrak NSW”.
Whereas Lantrak 1 concerned the dissolution of the commercial relationship, three of the four claims advanced in Lantrak 2 concerned the commencement of that relationship, and the fourth concerned the operation of that relationship.
The applicants in Lantrak 2 were Mr Yammine, NJA and Recycling and Transport Solutions Pty Ltd (RTS), which was another Yammine corporate vehicle. Prior to late 2016, RTS operated an earthmoving and landfill business in New South Wales. The business of RTS was transferred to Lantrak NSW — the 50:50 Yammine/Liemant vehicle — in early 2017.
The respondents in Lantrak 2 were Mr Liemant, his brother Mark Liemant, and Lantrak NSW.
In Lantrak 2, the applicants claimed that, in late 2016, Mr Yammine and RTS agreed with the Liemants to sell 50% of the RTS business for $5 million, with that business to be transferred to a new company. The new company was to be held 50:50, with Mr Yammine managing the day-to-day business (winning and overseeing work) and the Liemants being responsible, through other Lantrak entities, for head office functions (invoicing, accounting and financial matters).
The first claim advanced in Lantrak 2 asserted a breach of contract, and claimed payment of the $5 million purchase price.
The second claim asserted a breach of fiduciary duties said to be owed by the Liemants to the applicants. That claim asserted that, in breach of their fiduciary duties, between January 2017 and November 2018 (being the whole period of the venture between the two sides), the Liemants did not cooperate with the applicants by not keeping them informed of Lantrak NSW’s financial performance, and used their position as directors to cause Lantrak NSW to understate its profits so as to remove or inhibit the ability of Lantrak NSW to pay dividends. It also alleged that the Liemants put themselves in a position of conflict and made secret profits. The applicants claimed loss and damage, an account, and payment of the unauthorised profits.
The third claim advanced in Lantrak 2 was for misleading or deceptive conduct, on the basis of an alleged representation in late 2016 concerning the payment of $5 million for the transfer of the RTS business.
The fourth claim asserted in Lantrak 2 was for unjust enrichment. That claim was advanced in the alternative to the contract claim concerning the payment of $5 million for the transfer of the RTS business. It asserted that, if the agreement was not binding or enforceable, Lantrak NSW had been unjustly enriched on the basis that it acquired the business of RTS for no consideration. RTS claimed restitutionary damages for the value of the RTS business.
Procedural aspects of Lantrak 1 and Lantrak 2
The applicants in Lantrak 1 were directed to put on their outlines of evidence prior to the respondents to that proceeding being required to plead: PJ [37]. I will return to the outlines filed by the applicants, and by the respondents, later in these reasons.
On 5 March 2021, Lantrak 1 was set down for trial on 7 March 2022, on an estimate of seven days.
The parties made standard discovery between May and July 2021. The primary judge recorded (PJ [43]) that:
The respondents’ discovery included substantial documentation with regard to the financial position of Lantrak NSW throughout the period of its operation. That documentation included balance sheets, profit and loss statements, group financial reports, debtors and cash flow reports, cash flow forecasts, debtors and creditors ledgers and asset registers from time to time.
The discovery lists forming part of the record on the present application show, however, that very little (if any) of the respondents’ voluminous discovery related to the transfer of the RTS business into a new, joint venture company, as was being discussed and given effect in late 2016 to early 2017.
The principal claims advanced in Lantrak 2 were foreshadowed in correspondence from the solicitor for the applicants in Lantrak 1 shortly before Christmas 2021. That correspondence was summarised by the primary judge as follows (PJ [52]–[55]):
52 On 22 December 2021, the applicants’ then solicitor, Mr Zouky OAM, wrote to the respondents’ solicitors. Mr Zouky’s letter stated that he had been instructed by Mr Yammine to institute a further proceeding against Gary and Mark Liemant in relation to the transfer of the RTS business from RTS to Lantrak NSW in early 2017. The letter then set out details of the claim “in the amount of approximately $5,000,000.00”. The letter stated that the proceeding would be commenced shortly and that it was “likely that the above proceeding will need to be managed together with the existing proceeding”.
53 On 23 December 2021, Mr Zouky sent a further letter to the respondents’ solicitors. The letter stated that the “two proceedings will involve common witnesses and may involve overlapping issues of fact and law, such that it would be most efficient for them to be heard and determined together”. Mr Zouky also proposed the terms of an email to be sent to the docket judge’s associate which included informing the judge of the imminent new proceeding, that the proceedings should be managed together and that an adjournment of the first proceeding may be necessary.
54On 24 December 2021, the respondents’ solicitor, Mr Milner, replied. In relation to the proposed new proceeding, he stated that he was not in a position to express any concluded view as he had not yet been served with any proposed pleadings. Mr Milner stated that the proper course for the applicants to take was to serve the proposed pleading as soon as possible. Mr Milner did not consent to the docket judge being notified in the manner that had been proposed by Mr Zouky.
55 On 31 December 2021, Mr Zouky wrote a further letter to Mr Milner saying that he would arrange for the statement of claim in respect of the foreshadowed proceeding to be served as soon as possible. Notwithstanding that, no statement of claim was served, and at a case management hearing early in the new year no mention was made of the proposed new proceeding or claims.
The trial in Lantrak 1 commenced on 8 March 2022. Evidence was taken viva voce. Closing submissions were made, and judgment reserved, on 1 June 2022. On 20 June 2022, the Yammine interests’ solicitors gave notice that they were about to commence Lantrak 2. After the Liemant interests refused to participate in settlement discussions, Lantrak 2 was commenced on 28 June 2022.
The hearing of the interlocutory application
At the hearing of their interlocutory application, the respondents relied on an affidavit of their solicitor, Mr Milner, dated 2 September 2022.
The primary judge did not directly refer to the evidence given by Mr Milner in his reasons, but some aspects of that evidence may nonetheless be noted. Mr Milner referred to the orders made for discovery and the extensive and expensive exercise undertaken by KordaMentha to extract documents, which were then reviewed by Arnold Bloch Leibler (ABL) (the respondents’ solicitors), along with text messages. Mr Milner also deposed to various subpoenas having been issued, the pre-trial correspondence just referred to, and other pre-trial steps in Lantrak 1.
Mr Milner deposed to the costs incurred in relation to Lantrak 1, and his estimate of the costs to be incurred in Lantrak 2. Mr Milner identified that he considered there would be duplicative costs and cited a number of matters he considered would likely be the subject of evidence in both trials. Mr Milner considered that ABL’s resources “could have been used more efficiently” had the claims in Lantrak 2 and Lantrak 1 been heard and determined together.
Mr Milner said he considered it likely that KordaMentha would be likely to repeat a significant portion of the complex and lengthy discovery process undertaken previously because revised search terms would need to be applied. Mr Milner also referred to the overlap in witnesses.
Mr Milner finally referred to the risk of inconsistent findings as follows:
77 Finally, because the First Proceeding and this proceeding concern questions associated with consecutive related transactions, being the buying into and the exiting from the Lantrak NSW business by Yammine and NJA, it will be necessary for the judge in this proceeding to hear evidence on factual matters already addressed in the evidence in the First Proceeding. Matters likely to be the subject of evidence in both trials include:
(a) The parties’ introduction and initial meetings with one another in relation to the prospect of engaging in business together in New South Wales (for example, see from T4:20, T59:39);
(b) The terms on which the Applicants and Respondents engaged with one another in the establishment of Lantrak NSW (for example, see from T5:22, T70:35, T72:30);
(c) The use of advisers in connection with the establishment of the Lantrak NSW business and the negotiation process (for example, see from T4:45, T7:6, T8:14, T42:25, T59:18, T64:40, T65:45, T104:25);
(d) Efforts to draft the terms on which Yammine and NJA would enter into the Lantrak NSW business (for example, see from T4:20, T5:29, T44:40, T69:27, T74:27);
(e) The reasons why, ultimately, the initial entry into the Lantrak NSW business was not documented (for example, see from T78:6);
(f) The role of the parties within the Lantrak NSW business (for example, see from T6:8, T87:27);
(g) Yammine’s performance of his duties and responsibilities within the Lantrak NSW business (for example, see from T91:30); and
(h) The financial performance of Lantrak NSW (for example, see from T116:39).
78 Given the extent to which there is a real and substantive overlap between the issues raised in the First Proceeding, and the issues raised by this proceeding, which must be the subject of evidence, I consider there to be a real and not remote risk that there may be inconsistent findings on issues common to the First Proceeding and this proceeding.
While Mr Milner’s affidavit referred to there being an “overlap” in issues, he did not attempt to detail the overlap in “issues” (as distinct from the overlap in the matters he considered likely to be the subject of evidence also in Lantrak 2).
The primary judge also had before him an affidavit of Mr Yammine dated 3 October 2022. In that affidavit, Mr Yammine set out his reasons for not bringing the claims advanced in Lantrak 2 in the first proceeding. Mr Yammine’s evidence was summarised by the primary judge at PJ [76]–[82]. An application to cross-examine Mr Yammine was refused.
Mr Yammine stated that:
(a)he considered the claim advanced in Lantrak 1, and the circumstances giving rise to it, to be separated in time and substance from the matters relating to the initial transaction for the transfer of the RTS business;
(b)at the time of commencing Lantrak 1, he was not focused on those other claims, which also required further consideration and consultation with his lawyers before he could embark on them;
(c)when he commenced Lantrak 1, he wanted to seek and obtain relief promptly and did not want to delay the resolution of those claims by introducing the “very different claims” the subject of Lantrak 2, upon which he was not then focused, and which required further investigation;
(d)at the time he commenced Lantrak 1, Mr Yammine did not have effective control of RTS due to steps taken without his authority to remove him as sole director and secretary of RTS, and his shares were transferred without his authority;
(e)RTS was deregistered on 1 November 2021 following non-payment of ASIC fees, and only reinstated on 3 February 2022 once Mr Yammine recovered some control of RTS after discovering these irregularities in November 2021; and
(f)it was not until 25 July 2022 that Mr Yammine once again became a director of RTS.
In relation to the correspondence sent by his solicitors in late 2021, Mr Yammine said he understood that having the claims managed together would require the cooperation of the Liemant interests, which cooperation was not (based on the ABL correspondence) forthcoming.
At the hearing, the primary judge observed that the affidavits from both sides were effectively submissions and would be treated in that way.
The transcript of the hearing before the primary judge records that counsel for the Liemant interests referred extensively to the evidence given at the trial in Lantrak 1 as to the first agreement and the profitability of Lantrak NSW. However, the vast majority of the evidence referred to was elicited by counsel for the Liemant parties in cross-examination of Mr Yammine and another Yammine witness, Mr Pinto. While reference was made to evidence on those topics in cross-examination of Mr Liemant, the references given show the cross-examination referred to was relatively short.
Before the primary judge, the submission made by the Liemant parties, and repeated with emphasis, was that the whole of the factual dispute sought to be advanced by Lantrak 2 was already before the primary judge in Lantrak 1. That submission was advanced in various ways, but is captured in the following extracts from the transcript (emphasis added):
Now, we say, similarly [to UBS AG v Tyne (2018) 265 CLR 77 at [57]], the whole of the factual dispute between the Yammine and the Liemant interests and their related parties arising out of the joint enterprise of the Lantrak New South Wales business for about two years was before the court in the proceedings.
…
And the vexation would arise because, in order to respond to — in order for the applicant to propound the claims in the second proceeding, and in order for the respondents to defend them, precisely the same territory is going to have to be traversed as has already been litigated in the first proceedings.
…
[Referring to a passage of UBS at [58]] We say that applies in the case at hand, because what we have is factually one dispute, and that’s made good by reference to all the material to which I took your Honour before lunch which demonstrates what was, in fact, the subject of that litigation before Rares J.
…
So we respectfully submit that, on any fair assessment of the second proceedings, having regard to what has already occurred and the evidence and the procedures that have been explored, that there is material duplication. Accepting that the first proceedings, in a sense, the factual matrix was broader. The second proceedings: the factual matrix was litigated within the factual matrix of the first proceedings, we submit, and that it’s oppressive to have to respond a second time to that factual material, even if it’s framed for a different purpose or cast in support of a different cause of action.
Counsel for the Yammine parties resisted the submission that the whole of the factual dispute was before the court in Lantrak 1.
The primary judge’s reasons
After introducing the parties, the issues in the two proceedings, procedural aspects of Lantrak 1 and the inter-solicitor correspondence in late 2021 and early 2022, the primary judge set out the applicable principles. As the primary judge identified, the leading case on abuse of process is UBS AG v Tyne (2018) 265 CLR 77 (UBS). I will return to the applicable principles below.
The primary judge’s consideration proceeded in three parts: first, observations regarding the two proceedings; secondly, consideration of “Mr Yammine’s explanation for bringing the proceeding late”; and finally, his Honour’s conclusions.
The primary judge accepted that the causes of action in the two proceedings did not arise from precisely the same facts and were “in a sense separated in time” but described them as having “significant interrelationship”: PJ [69]. The primary judge then proceeded to make five observations about the two proceedings, and lastly concluded that there did not appear to be any credible reason why the claims brought in Lantrak 2 were not brought in Lantrak 1 (which conclusion introduced the topic of “Mr Yammine’s explanation for bringing the proceeding late”).
In the primary judge’s view, there was “significant overlap in the material facts between the breach of fiduciary duty and unjust enrichment claims in the present proceeding and the claims in the first proceeding (other than the non-compete claim)”: PJ [70]. That overlap was said to arise particularly from the fact that, in Lantrak 1, the purchase price of $35 million was said to have been arrived at based on the earnings of the Lantrak NSW business. This was said to have required detailed consideration of the accounting in, and profits of, the business. The primary judge was of the view that “[t]hese matters are necessarily material to the breach of fiduciary duty and unjust enrichment cases in the present proceeding”.
The next point the primary judge noted was the overlap in evidence in the two proceedings. His Honour there referred to the evidence given in Lantrak 1 as to the formation of the commercial relationship including the transfer of the RTS business to Lantrak NSW: PJ [71]. That evidence was said to be relevant not only as context, but also on the witnesses’ credit, and Mr Yammine’s stated manner of doing business on a handshake, without formal documentation.
The primary judge referred also to the fact that the two principal witnesses, Mr Yammine and Mr Liemant, were cross-examined at length in Lantrak 1 and findings would likely be made regarding their credit: PJ [72].
The primary judge considered that, not only was there a risk of conflicting findings, but “the respondents are vexed on the same issues twice”, as to which his Honour stated that (PJ [73]):
the respondents have given extensive discovery on those issues, they have had to consider detailed outlines of evidence by the applicants that cover those issues, they have prepared detailed outlines of evidence in response, and they have prepared for and dealt with those issues at trial. There is no doubt that it would have been considerably less burdensome on the respondents to have had to deal with all the claims in one proceeding, and that it would be substantially wasteful to them to have to deal with them separately.
The final observation made about the two proceedings was that, although the parties were not exactly the same, the commercial interests on either side were identical: PJ [74].
As no issue was raised in the appeal regarding the primary judge’s criticisms of Mr Yammine’s explanation, it is not necessary to summarise the primary judge’s reasons for concluding that Mr Yammine’s explanation was inadequate in some respects.
In setting out his conclusions, the primary judge’s view was that “the claims that are the subject of the present proceeding should have been brought in the first proceeding, or at least early enough to have enabled them to be heard simultaneously with the first proceeding”: PJ [93]. His Honour inferred that the applicants chose not to bring the Lantrak 2 proceeding at the time of, or shortly after, their solicitor’s correspondence in December 2021 “so as not to imperil the trial dates of the first proceeding”: PJ [94]. While his Honour described that as a “forensic decision” the applicants had to live with, it was “not necessarily a decision taken so as to give the applicants a forensic advantage by bringing the present proceeding separately and later”: PJ [94].
The primary judge found that, unlike the situation in UBS, “there is no evidence in the present case that there was ‘tactical manoeuvring’ by the applicants in not bringing the present claims much earlier, if that phrase is taken to have a pejorative connotation”, but noted that a finding of abuse of process may be made even in the absence of “‘tactical manoeuvring’ in a pejorative sense”: PJ [95].

In addition to referring to the respondents being vexed by having to deal with the Lantrak 2 proceeding separately, the primary judge concluded that “public resources committed to the administration of justice will be wasted by the two proceedings being heard separately”, observing that, due to credit issues at stake, it would be inadvisable for the same judge to hear and determine Lantrak 2: PJ [96].
The primary judge then returned to s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Given the prominence of s 37M in the applicants’ arguments, I will set out his Honour’s conclusions on that matter in full (PJ [97]):
There is no sense in which the applicants’ bringing of the claims in the present proceeding in a separate proceeding and too late for the two proceedings to be heard together is consistent with the overarching objectives of the Court’s practice and procedure provisions as expressed in s 37M of the FCA Act, and as required of the applicants by s 37N(l). To allow the present proceeding to continue would not constitute the efficient use of the judicial and administrative resources of the Court, it would detract from the efficient disposal of the Court’s overall caseload and it would not contribute to the disposal of proceedings in a timely manner.
After rejecting a submission that the respondents could have raised the issue if they were concerned about there being a separate proceeding, the primary judge concluded as follows (PJ [99]):
I therefore consider that both the alternative conditions for the enlivening of the power to permanently stay proceedings identified in UBS at [1] are established in this case. For the present proceeding to continue would occasion unjustifiable oppression of the respondents, and it would serve to bring the administration of justice into disrepute. The stay is justified on either basis, and it is compelled by both together.
The primary judge’s reasons do not separately identify which matters his Honour considered warranted the conclusion that the administration of justice would be brought into disrepute, as distinct from constituting an abuse of process on the basis that allowing the Lantrak 2 proceeding to continue would occasion unjustifiable oppression of the respondents.
The grounds of appeal
The applicants advanced six grounds of appeal, as follows:
1. The primary judge:
[(a) and (c) were deleted]
(b) erred by applying too broad a test when considering the circumstances necessary for an abuse of process, in particular by elevating to a determinative factor the question whether the conduct of the Appellants in commencing the second proceeding was inconsistent with the objectives expressed in s 37M of the Federal Court of Australia 1976 (Cth).
2. The primary judge:
(a) erred in finding (at [35] and [71]) that in the first proceeding the alleged terms of the dissolution of the commercial relationship between the Yammine and Liement interests were based in part on the profits earned by the Lantrak NSW business;
(b) erred in finding (at [70]) that there was “significant overlap” in the material facts, being the profits of the Lantrak NSW Business, between the Appellants’ breach of fiduciary duty and unjust enrichment claims in the second proceeding and the Applicants’ claims in the first proceeding (other than the non-compete claim);
(c) should have found that:
(i)in the first proceeding, the alleged terms of the dissolution of the commercial relationship between the Yammine and Liement[sic] interests were based in part on the EBIT (earnings before interest and tax) of Lantrak NSW; and
(ii) in the second proceeding, it will be necessary for the court to determine the net profits of Lantrak NSW (or its business), as opposed to its EBIT, in order to determine the Appellants’ entitlement to dividends from Lantrak NSW, their claim for the $3 million component of the $5 million purchase price for the RTS Business, their breach of fiduciary duty claims, and their account of profits claims.
3. In considering whether to stay the second proceeding on the grounds that it constituted an abuse of process, the primary judge erred in not placing any, or sufficient, weight on the following circumstances:
(a) the parties in the first proceeding and second proceeding were different as set out at [6] to [8];
(b) the Appellants’ claims in the second proceeding, and the relief they seek in the second proceeding, as set out at [14] to [27] are substantially different to the claims of the Applicants in the first proceeding and the relief the Applicants seek in the first proceeding as set out at [30] to [36];
(c) the Appellants’ claims in the second proceeding as set out at [14] to [27] will not be determined in the first proceeding;
(d) the Appellants’ claims in the second proceeding do not arise from precisely the same facts as the claims in the first proceeding as the court found at [69];
(e) in the second proceeding, the Appellants will need to adduce evidence not adduced in the first proceeding and will need to adduce evidence from witnesses who did not give evidence in the first proceeding;
(f) insofar as there will be an overlap in the evidence in the first proceeding and the second proceeding, the overlapping evidence was relevant only “by way of context” and to “witnesses’ credit and [the First Appellant’s] stated usual or common manner of doing business” in the first proceeding as referred to at [71] but will be directly relevant to the facts in issue in the second proceeding;
(g) the Appellants did not obtain a “forensic advantage” by not bringing their claims in the first proceeding or by not commencing the second proceeding in sufficient time for the first proceeding and the second proceeding to be heard together as the court referred to at [94];
(h) the Appellants did not engage in “tactical manoeuvring” in a “pejorative sense” by not bringing their claims in the first proceeding or commencing the second proceeding in sufficient time for the first proceeding and the second proceeding to be heard together as the court found at [95]; and
(i) before the first proceeding was brought to completion, the Appellants had informed the Respondents that the claims the subject of the second proceeding were yet to be resolved as referred to at [56].
4. The primary judge erred in finding at [99]:
(a) the second proceeding constituted an unjustifiable oppression of the Respondents to the second proceeding;
(b) the second proceeding serves to bring the administration of justice into disrepute;
(c) the second proceeding constituted an abuse of process; and
(d) the second proceeding should be permanently stayed.
5. Having regard to the matters in paragraph 3 above, the primary judge should have found:
(a) the second proceeding was not so unfairly and unjustifiably oppressive, or did not involve unacceptable injustice or unfairness, to the Respondents to the second proceeding as to constitute an abuse of process;
(b) the second proceeding did not constitute an unjustifiable oppression of the Respondents to the second proceeding;
(c) the second proceeding did not serve to bring the administration of justice into disrepute; and
(d) the second proceeding should not be permanently stayed.
6. Alternatively to paragraph 5 above, the primary judge erred in finding that, on the facts before the Court:
(a) the Appellants bringing their $5 million claim in the second proceeding set out at [21] and [22] constituted an abuse of process; and
(b) that claim should be permanently stayed.
Whether leave to appeal is required: interlocutory or final decision
The applicants contended that an order permanently staying a proceeding on abuse of process grounds ought to be regarded as a final order where the abuse lies in the making of a claim which ought to have been advanced in earlier proceedings (cf abuse of process where no cause of action is disclosed, or a claim is frivolous or vexatious). While acknowledging the lack of direct authority supporting that position, the applicants urged it on this court on the basis that the principles by which an order may be made staying a proceeding as an abuse of process of that kind are informed in part by the same considerations of finality and fairness that inform the doctrine of estoppel (citing Gageler J in UBS at [62]). While the applicants applied for leave to appeal, they urged this court to conclude that no leave is necessary.
The respondents contended that the decision of the primary judge was interlocutory and leave is required, citing Re Luck [2003] HCA 70; (2003) 203 ALR 1 (Re Luck). They accepted, however, that as the practical effect of the stay is finally to determine the rights of the parties, a prima facie case exists for granting leave to appeal: citing Tyne v UBS AG [2016] FCA 241; (2016) 338 ALR 624 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564. They submitted, however, that the Yammine parties nonetheless failed to demonstrate that the reasoning of the primary judge was attended by sufficient doubt to warrant the grant of leave.
In Re Luck, McHugh ACJ, Gummow and Heydon JJ said as follows (at [9]) in concluding that, inter alia, an order staying an action as an abuse of process is an interlocutory order:
Given the long-established English rule, the decision in Tampion [v Anderson (1973) 3 ALR 414] and our decisions in Pye [v Renshaw (1951) 84 CLR 58], Hall [v Nominal Defendant (1966) 117 CLR 423], Carr [v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246] and Bienstein [v Bienstein [2003] HCA 7; (2003) 195 ALR 225], we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.
In relation to Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [25], in Re Luck their Honours said (at [4], emphasis in original, internal footnotes omitted):
As McHugh, Kirby and Callinan JJ stated in Bienstein v Bienstein, the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.
Re Luck concerned an appeal against a decision of Gleeson CJ refusing leave to issue a writ of summons and statement of claim on the basis that the statement of claim disclosed no cause of action against any defendant. As such, it was not an abuse of process case of the kind that the applicants urged be regarded as final. Nevertheless, by being refused leave to issue the writ and statement of claim, Ms Luck was prevented from pursuing the claims she considered that she had. As the order refusing leave did not finally determine Ms Luck’s rights against the defendants, it was interlocutory, and not final: Re Luck at [5].
Where an order permanently staying a proceeding on the basis that it is an abuse of process is grounded in res judicata (including by an Anshun estoppel), the order is regarded as final: Dodoro v Knighting (2004) 10 VR 277 at [20] (Callaway JA, Winneke P, Charles, Buchanan and Eames JJA agreeing) referring to Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 (Anshun (No 1)) at 38 (Gibbs J, Mason and Murphy JJ agreeing).
In Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235 (Leighton Holdings) at [34], the Victorian Court of Appeal (Tate, Beach JJA and Robson AJA) concluded that it was bound by authority to conclude that a decision of Ferguson J (as her Honour then was) declining a stay on abuse of process grounds was “interlocutory in the sense that it was not capable of engaging the principles of res judicata or issue estoppel”. There, the alleged abuse lay in pursuing proceedings to generate fees rather than to pursue compensation.
In Leighton Holdings, their Honours were addressing a case in which the allegation of abuse of process rested on motives (cf the pursuit of a second proceeding raising factual and/or legal overlaps with a previous proceeding). However, as the discussion of abuse of process below illustrates, the case law concerning abuse of process has developed such that there is varying emphasis on motives as against other factors. In other words, there is no bright line between cases where a contention of abuse of process rests on a party’s motives, as against other factors. The decision of the Victorian Court of Appeal in Leighton Holdings confirms that decisions concerning stays on abuse of process grounds which, if granted, would permanently preclude the vindication of asserted legal rights, are interlocutory.
What the cases illustrate is that abuse of process cases based on res judicata and Anshun estoppel are regarded as final because, in those cases, there is deemed to have been a final resolution of the issues by way of the estoppel arising from the earlier proceedings. What might have been thought to be a tension between Re Luck and Anshun (No 1) was addressed by the Full Court (Finn, Kenny and Edmonds JJ) in Egglishaw v Australian Crime Commission (2007) 164 FCR 224 at [39]–[44] and other cases, summarised as follows by Brereton JA, Leeming JA and Emmett AJA agreeing, in Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497 (Emmott) at [115]–[117] (emphasis added, internal footnotes omitted):
[115]As noted by McColl and Meagher JJA in Leybourne [v Habkouk [2012] NSWCA 212], the apparent tension between Anshun (No 1) and Re Luck was discussed by McColl JA in Bracks v Smyth-Kirk [[2009] NSWCA 401; (2009) 263 ALR 522], and previously by the Full Court of the Federal Court (Finn, Kenny and Edmunds[sic] JJ) in Egglishaw v Australian Crime Commission, which concluded that there was no inconsistency between the two High Court decisions but that the difference between them flowed “from the difference between the judgments from which an appeal was brought or sought to be brought”. Anshun (No 1), in their Honours’ view, concerned a case “where an earlier judgment or proceeding preclude[d] a further judgment or proceeding”. Such a case was to be distinguished from “the ordinary case [such as Re Luck], where a proceeding discloses no cause of action, is frivolous or vexatious, or is to be dismissed on some other basis involving no final determination of rights”. In Bracks v Smyth-Kirk, McColl JA accepted the validity of that distinction, as did McColl and Meagher JJA in Leybourne:
The distinction the Full Federal Court drew in Egglishaw between the nature of what we will, for convenience, call a Re Luck and an Anshun (No 1) judgment has been recognised in this Court: Frumar v the Owners of Strata Plan 36957 [[2010] NSWCA 172] (at [36]). The Court of Appeal of the Supreme Court of Victoria has also followed Anshun (No 1) and held to be final in character an order permanently staying as an abuse of process later proceedings which the primary judge held to amount to a collateral attack on the decisions made in earlier proceedings: Kermani v Westpac Banking Corporation [(2012) 36 VR 130] (at [89]–[90]). There is, accordingly, a substantial body of authority which this Court would ordinarily follow supporting the applicant’s position that the permanent stay order the primary judge made in Jacisa’s favour at least was a final one.
[116]Leybourne was a case in which proceedings had been permanently stayed on the basis that “they were an abuse of process because they sought ‘to agitate in substance … the same if not identical claims against [Jacisa] having consented to judgment in favour of [Jacisa] in … [the first Supreme Court proceedings]’”.
[117]Thus the cases in which it has been held that a permanent stay is or may be a final order are confined to cases in which there was deemed to have been a final resolution of the issues by way of estoppel arising from earlier proceedings. In other contexts, the authority that a permanent stay is interlocutory for present purposes is overwhelming. Consistently with Egglishaw, that can be explained on the basis that in the latter class of case there has been no final resolution, actual or deemed, of the real issues in dispute between the parties.
Against this body of authority, described by Brereton JA as “overwhelming” in Emmott, the applicants’ submissions urged this court to exclude a species of abuse of process case from the ambit of the broader principle articulated by three judges of the High Court in Re Luck. As this is an intermediate court of appeal, extreme caution is required in the recognition of new principles, particularly where they are at odds with long-established authority and seriously considered dicta of the High Court: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 (Farah) at [134] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
The High Court in Re Luck described the ambit of interlocutory orders in a way that encompasses the present case. Subsequent decisions (including Emmott and Leighton Holdings) have confirmed the ambit and continued application of Re Luck to orders staying proceedings on abuse of process grounds that do not involve estoppel. Both Emmott and Leighton Holdings are decisions of intermediate appellate courts, from which this court should not depart unless satisfied they are clearly wrong: Farah at [135].
While cases involving further proceedings that overlap with earlier proceedings may be abusive and may have that character by virtue of exhibiting features also found in estoppel cases, they are not cases in which there has been a final resolution (actual or deemed) of the issues raised. The authority is clear on that point.
For these reasons, in my view, the decision of the primary judge in this case must be regarded as interlocutory. However, for the reasons which follow, there is a clear case for the grant of leave given the serious impact of a permanent stay on the applicants and the doubt that attends the decision of the primary judge.
Legal principles: abuse of process
A court’s power permanently to stay proceedings as an abuse of the process of the court is enlivened where either the use of the court’s procedures occasions “unjustifiable oppression” to a party, or where the use serves to bring the administration of justice into disrepute: UBS at[1] (Kiefel CJ, Bell and Keane JJ).
Whether conduct rises to the level of abuse requires consideration of all the circumstances. The requisite analysis has been described as a “broad, merits-based judgment which takes account of the public and private interests involved”: Johnson v Gore Wood [2002] 2 AC 1 (Gore Wood) at 31 (Lord Bingham of Cornhill, quoted with approval by the plurality in UBS at [7]).
The authorities elaborate on the nature and circumstances in which an abuse of process may be found, and set out methodological approaches to the determination of whether or not the court’s processes have been abused. However, it is important not to proceed so quickly to these matters, or the facts in issue in any particular case, that one loses sight of the fact that those tests and approaches are aids to identifying when the court’s processes are being abused. “Abuse” is a strong word. It directs attention to whether the processes of the court, which carry with them compulsive and adjudicative powers, are being harnessed in a way that involves misuse or abuse of those processes: Gore Wood at 31 (Lord Bingham).

The primary judge then referred to the leading case on the principles applicable to a claim of abuse of process such as the present being UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 (UBS). At [58]-[64], the primary judge identified the following principles in the judgment of Kiefel CJ, Bell and Keane JJ, and in the concurring judgment of Gageler J (which also adopted at [61] the reasons of the plurality):
(a)either of two conditions enlivens the power of the court to permanently stay proceedings as an abuse of process of the court: one being where the use of the court’s procedures occasions unjustifiable oppression of a party, and the other being where the use serves to bring the administration of justice into disrepute: UBS at [1];
(b)whether or not particular conduct rises to the level of an abuse of process is a determination that requires consideration of all the circumstances, the determination being “a broad, merits-based judgment which takes account of... all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before”: UBS at [7], quoting Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31;
(c)the determination of whether the bringing or continuance of a proceeding is an abuse of the process of the court must take into account the procedural law administered by the court whose processes are engaged, relevantly s 37M of the FCA Act which provides that the overarching purpose of the civil practice and procedure provisions of the court is to facilitate the just resolution of disputes according to law “as quickly, inexpensively and efficiently as possible”, that overarching purpose having various objectives including “the efficient use of the judicial and administrative resources available for the purposes of the Court”, “the efficient disposal of the Court’s overall caseload” and “the disposal of all proceedings in a timely manner”: UBS at [34];
(d)the timely, cost-effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute: UBS at [38], citing, amongst other authorities, Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [95];
(e)although a party has a “right” to bring proceedings, in doing so choices are made respecting what claims are made and how they are framed, and the just resolution of a dispute involves parties having a sufficient “opportunity” to identify the issues that they seek to agitate, and abuse of process principles may be invoked to prevent attempts to litigate a claim that should have been litigated in earlier proceedings: UBS at [38]-[39], citing Aon at [33], [98] and [112];
(f)in some circumstances the bringing of a claim which should have been litigated in an earlier proceeding will be an abuse, and that may be so notwithstanding that the later proceeding is not precluded by an estoppel, and that can be seen so even where the parties seeking to make the claim or to raise the issue in the later proceeding was neither a party to the earlier proceeding, nor the privy of such a party: UBS at [43] and [62]-[63], citing Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [26]; and
(g)the courts must be astute to protect litigants and the system of justice itself against abuse of process, and it is to hark back to the time before the High Court’s decisions in Aon and Tomlinson, and the enactment of s 37M of the FCA Act, to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation: UBS at [45].
The primary judge referred to the circumstances in UBS, being that there was first a proceeding in the Supreme Court of NSW by Mr Tyne, the trustee of a family trust and a company associated with Mr Tyne. During the course of the proceeding, Mr Tyne and the trustee discontinued the proceeding, which continued in the name of the company, and Mr Tyne thereafter succeeded the trustee as trustee of the trust and, in his capacity as trustee, brought a proceeding in the Federal Court asserting essentially the same causes of action that had been discontinued in the Supreme Court proceeding. The respondent, UBS, sought the permanent stay of the proceeding. In the circumstances of UBS, oppression was found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS, but at its core was the vexation of being required to deal again with claims that should have been resolved in the Supreme Court proceeding: [66]. The primary judge referred to it being held that for the Federal Court to lend its procedures to the staged conduct of what was factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, was likely to give rise to the perception that the administration of justice was inefficient, careless of costs and profligate in its application of public monies, referring to UBS at [59].
The primary judge also referred to Gageler J’s reasoning in UBS at [75] that it was not necessary for the effect of the Federal Court proceeding on UBS to rise to the level connoted by language such as “unfairness” or “oppression”. Rather, Gageler J held that UBS’s private interest was sufficiently engaged by UBS being compelled by the coercive authority of the Federal Court to respond to a process designed to vindicate a claim which should have been brought in the Supreme Court proceeding, which UBS had already gone to the time and expense of bringing to completion, and that private interest was to be weighed with the public interest in the timely and efficient resolution of claims: [67].
The primary judge then made a number of observations with regard to the present proceedings as follows:
(a)although the causes of action in Lantrak 1 and Lantrak II did not arise from precisely the same facts, and they were in a sense separated in time, the causes of action had significant interrelationship: [69];
(b)there was significant overlap in the material facts between the breach of fiduciary duty and unjust enrichment claims in Lantrak II and the claims in Lantrak I (other than the non-compete claim); that overlap arose particularly from the fact that it was the Yammine Parties’ case in Lantrak I that the agreement with regard to the purchase price for the shares in Lantrak NSW was arrived at by reference to the profitability of that business, noting that in closing submissions it was said on behalf of the Yammine Parties that the figure of $35 million was set by reference to five times the business’s EBIT with reference to Mr Yammine and Mr Pinto’s oral evidence in support of that, the proposition being that the very substantial purchase price for the shares and assets was justified on the basis of the success of the business, which in turn required detailed consideration of the accounting in the business and the profits of the business, and those matters were necessarily material to the breach of fiduciary duty and unjust enrichment cases in Lantrak II: [70];
(c)there was significant overlap in the evidence in the two proceedings, in that the evidence in Lantrak I covered in considerable detail factual questions as to the formation of the commercial relationship including the transfer of the RTS business to Lantrak NSW and the agreements in that regard, and the conduct and profitability of the business, and that evidence appeared to have been regarded as relevant not only by way of context, but also significantly with regard to the witnesses’ credit and Mr Yammine’s stated usual or common manner of doing business on a handshake and not requiring formal documentation, and the question of profitability of the business also went to the terms of the agreement with regard to the dissolution of the relationship: [71];
(d)the two principal witnesses in both proceedings were likely to be the same, namely Mr Yammine and Mr Gary Liemant, both of whom were cross-examined at length in Lantrak I, and the credit of both of them was impugned; accordingly the judgment in Lantrak I was likely to have to make findings with regard to their credit, and that would likely be based on evidence of matters that would have to be covered again by them in Lantrak II: [72];
(e)not only was the duplication between the two proceedings likely to lead to a risk of conflicting findings, but the respondents were vexed on the same issues twice, in that they had given extensive discovery on those issues, they had to consider detailed outlines of evidence by the applicants that covered those issues, they had prepared detailed outlines of evidence in response, and they had prepared for and dealt with those issues at the trial; and there was no doubt that it would have been considerably less burdensome on the respondents to have had to deal with all the claims in one proceeding, and that it would be substantially wasteful to them to have to deal with them separately: [73];
(f)although the parties in the two proceedings were not exactly the same, the commercial interests on either side of the two proceedings were identical, and to the extent that there was not an identity of parties, such parties were certainly the privies of Mr Yammine and the Liemants respectively: [74]; and
(g)there did not appear to be any credible reason why the claims that were the subject of Lantrak II were not brought in Lantrak I, a matter which necessitated consideration of Mr Yammine’s explanation for not bringing the claims that are the subject of Lantrak II in Lantrak I: [75].
The primary judge then dealt with Mr Yammine’s explanation for bringing the proceeding late, referring to an affidavit of Mr Yammine in Lantrak II in which he explained why the claims that he asserted in Lantrak II were brought only when they were and why they were not brought in Lantrak I: [76]. The primary judge summarised that affidavit as follows.
Mr Yammine said that in about March 2020, Mr Liemant first said to him that the Liemant interests would not pay Mr Yammine and NJA the outstanding $22 million for the Lantrak NSW shares that were the subject of the collateral contract, so Mr Yammine was at that time “focused on the terms upon which the Liemant interests agreed to purchase NJA’s shares in Lantrak NSW and the circumstances surrounding that agreement”, and said that he was “focused on the terms of [his] exit from Lantrak NSW”: [77]. Mr Yammine said that he considered the claim in Lantrak I and the circumstances that gave rise to it to be separated, both in time and substance, from the agreement and circumstances under which the Liemant interests purchased a 50% interest in the business of RTS in late 2015 or early 2016, or the circumstances in which he entered into the Lantrak NSW business with the Liemant interests, saying that, at the time of commencing Lantrak I, he was not focused on those different claims and the circumstances that surrounded them: [78].
Mr Yammine also said that at the time of commencing Lantrak I, the claims that were the subject of Lantrak II, including those related to the joint operation of the Lantrak NSW business during 2017 and most of 2018, required further consideration and consultation with his lawyers, saying further that when he commenced Lantrak I, he wanted to seek and obtain relief from the Court promptly in respect of his claims in that proceeding and he did not want the bringing of the other claims to delay the resolution of those claims: [79]. Mr Yammine also said that “in any event”, at the time of commencing Lantrak I he did not have effective control of RTS so it would not have been possible for him at that time to bring a claim on its behalf, saying that, unknown to him at the time, in February 2018 his accountants without his authority removed him as the sole director and secretary of RTS and the shares in the company were transferred to someone else, and that on 1 November 2021, RTS was deregistered due to a failure by his accountants to pay the necessary fees to ASIC: [80]. Mr Yammine said that he discovered the irregularities in the stewardship and composition of RTS in November 2021 after it had become deregistered, and then promptly took steps to have the company reinstated on 3 February 2022 and to have his shares in RTS restored on 15 February 2022: [81]. On 25 July 2022, as the sole shareholder in RTS he passed a resolution removing the sole director and secretary of RTS, who had wrongly been recorded as replacing him, and restored himself to those positions: [81]. Mr Yammine said that for those reasons it was not until “early to mid-2022” that his lawyers could commence the present proceeding on his behalf, and on behalf of RTS: [82].
The primary judge then referred to his Honour’s decision to refuse leave to cross-examine Mr Yammine on that affidavit: [83]. I note that the Liemant interests did not challenge the correctness of that approach in their submissions to this Court, and accordingly this is not the appropriate occasion to consider whether the primary judge’s approach was correct in view of s 27 (when read with s 11) of the Evidence Act 1995 (Cth). The primary judge then said, however, that even without cross-examination, there were a number of evident problems with Mr Yammine’s explanation for not having brought the present claims in the first proceeding: [84]. Those problems were as follows.
First, even accepting that Mr Yammine was “focused” on the claim for the $22 million, there was no explanation as to why he should have been so focused, as it was clear that on his version he was at that time in substantial dispute with the Liemant interests about the whole of their commercial relationship and it was his and his lawyers’ responsibility to bring forward all related claims in an efficient and cost-effective manner: [85]. The primary judge commented that Mr Yammine’s and Mr Pinto’s outlines of evidence and evidence in chief covered the formation and the conduct of the relationship, so at least to that extent there was a focus by Mr Yammine on those issues from very early in the course of Lantrak I: [85].
Second, the primary judge said that Mr Yammine was clearly mistaken in considering that the claim for the $22 million in Lantrak I was separated “both in time and substance” from the claims asserted in Lantrak II, as the claims have significant factual overlap and all arise from the same commercial relationship which lasted a relatively short period of time: [86].
Third, the primary judge said that even if it is correct that at the time that Lantrak I was commenced Mr Yammine did not have the necessary financial information about the conduct of the Lantrak NSW business available to him to bring Lantrak II, he could have sought that information before bringing the proceeding, or he could have obtained it early in the proceeding, which is indeed what occurred when discovery was given: [87]. The primary judge said that shortly thereafter, if not before, the claims that were the subject of Lantrak II could readily have been included in Lantrak I, but that discovery was not accessed by the Yammine interests until November 2021, and shortly thereafter Mr Zouky first asserted the present claims: [87]. The primary judge inferred that the delay by the Yammine interests in asserting the claims was caused at least in part by their very late consideration of the discovered documents: [87].
Fourth, given the size and complexity of the claims brought in Lantrak I, Mr Yammine (or anyone who may have advised him) could not reasonably have thought that that proceeding would be brought to resolution so quickly as to justify not bringing the claims that are the subject of Lantrak II at the same time: [88]. Further, Mr Zouky suggested in his correspondence in December 2021 that the trial in Lantrak I could be adjourned in order to accommodate the new proceeding, which showed that at least at that stage Mr Yammine was not so concerned to ensure the quick resolution of Lantrak I: [88]. In any event, the primary judge said that it was doubtful that such a consideration was relevant given the substantial overlapping factual underpinnings to the prospective claims and their interrelatedness: [88].
Fifth, the primary judge said that Mr Yammine’s explanation with regard to being unable to bring a claim on behalf of RTS is unconvincing for a number of reasons, even putting to one side that the obvious explanation for the changes in the internal arrangements in RTS in early 2017 and its subsequent deregistration were most likely explicable by reference to the fact that in early 2017 the whole of its business was transferred to Lantrak NSW: [89]. The primary judge said that Mr Yammine’s ability, through his accountants, to restore the proper internal arrangement in RTS after he learnt of the unauthorised changes shows that he never really lost control of RTS, and the problem was one of form, not of substance: [89]. Further, since Mr Yammine did not know that he was not the sole shareholder, director and secretary of RTS at the time that Lantrak I was commenced, and thereafter, the formal internal position with regard to RTS offered no explanation for why Mr Yammine did not bring the claims in Lantrak II at that time: [90]. The primary judge said that if he had sought to bring them in early 2020, he may have discovered the problems in RTS at a much earlier time, which would still have enabled those claims to be brought in Lantrak I: [90]. In addition, when Lantrak II was commenced, RTS was not named as an applicant and was added as the third applicant only in the amended originating application and amended concise statement on 16 August 2022: [91]. Accordingly, RTS was not regarded as a necessary applicant to the claims that were the subject of Lantrak II at the time that it was brought, with the result that any difficulties with regard to the internal arrangements in RTS offered no explanation for why those claims were not brought at a much earlier time: [91]. Finally, the primary judge observed that Mr Yammine was reinstated as sole shareholder of RTS on 3 February 2022, after which he could at any time have reappointed himself as sole director, and it was therefore not the case that his reappointment as sole director in July 2022 had any bearing on the proceeding only being brought when it was: [92].
The primary judge then said that taking the above matters into account, the claims that were the subject of Lantrak II should have been brought in Lantrak I, or at least early enough to have enabled them to be heard simultaneously with Lantrak I: [93]. The primary judge said that it was apparent from Mr Zouky’s correspondence in December 2021 that that was the applicants’ intention at that time, and that was because the two proceedings would “involve common witnesses and may involve overlapping issues of fact and law such that it would be most efficient for them to be heard and determined together”: [93]. The primary judge said that was exactly the position that pertained both then and now, and the applicants had the opportunity to bring the claims then (actually, long before then) and they should have done so: [93].
The primary judge inferred that the applicants chose not to bring Lantrak II at the time of, or shortly after, Mr Zouky’s correspondence so as not to imperil the trial dates of Lantrak I, being a forensic decision that they made and that they must live with: [94]. The primary judge said that it was not necessarily a decision taken so as to give the applicants a forensic advantage by bringing Lantrak II separately and later, but was more likely a decision taken in order to avoid the consequences to Lantrak I arising from asserting the claims in Lantrak II so late, but that lateness was something for which the applicants were responsible: [94]. The primary judge accepted that, unlike in UBS, there was no evidence in Lantrak II that there was “tactical manoeuvring” by the applicants in not bringing Lantrak II much earlier, if that phrase is taken to have a pejorative connotation: [95]. The primary judge said that there was nevertheless a decision taken not to bring the claims earlier, and that it was not necessary to a finding of abuse of process that there be “tactical manoeuvring” in a pejorative sense: [95].

The primary judge observed that, not only will the respondents be vexed by having to deal with Lantrak II separately from Lantrak I, but public resources committed to the administration of justice would be wasted by the two proceedings being heard separately: [96]. The primary judge observed that a judge of the Court had already heard Lantrak I and was reserved on it, and, given the significant issues of credit at stake, it would be inadvisable for the same judge to hear and determine Lantrak II, thus further contributing to duplication and waste, and also giving rise to the risk of conflicting findings on credit and material facts: [96].
The primary judge then said that there was no sense in which the applicants’ bringing of the claims in Lantrak II in a separate proceeding and too late for the two proceedings to be heard together is consistent with the overarching objectives of the Court’s practice and procedure provisions as expressed in s 37M of the FCA Act, and as required of the applicants by s 37N(1): [97]. The primary judge said that to allow Lantrak II to continue would not constitute the efficient use of the judicial and administrative resources of the Court, it would detract from the efficient disposal of the Court’s overall caseload and it would not contribute to the disposal of proceedings in a timely manner: [97].
The primary judge then dealt with a submission made on behalf of the Yammine interests by reference to CBRE (V) Pty Ltd v Trilogy Funds Management Limited [2021] NSWCA 316; (2021) 107 NSWLR 202 at [18] (Bell P), that if, following Mr Zouky’s correspondence in December 2021, the Liemant interests were concerned as to the potentiality of the Yammine interests bringing the new claims against them in a separate proceeding, they could have themselves brought a cross-claim in Lantrak I seeking a negative declaration: [98]. The primary judge considered that there was no obligation on the Liemant interests to take such a course, particularly considering that they did not know the necessary details of the foreshadowed claims, Mr Zouky had said that he would be serving pleadings imminently, and to seek such a negative declaration at that stage might itself have imperilled the trial dates, which should not have been at the risk of the Liemant interests: [98]. The primary judge commented that it was one thing to observe that a negative declaration can be sought, but it was quite another to conclude that a party is under some form of obligation to seek it: [98].
The primary judge therefore concluded that both the alternative conditions for the enlivening of the power to permanently stay proceedings identified in UBS at [1] were established in this case, in that for Lantrak II to continue would occasion unjustifiable oppression of the respondents, and it would serve to bring the administration of justice into disrepute: [99]. Accordingly, the primary judge concluded that the stay was justified on either basis, and that it was compelled by both together: [99]. The primary judge thus ordered that Lantrak II should be permanently stayed and that the applicants should pay the respondents’ costs of the proceeding: [100].
The Challenge to the Primary Judge’s Reasoning in Lantrak II
The Yammine interests submitted, and I accept, that nothing in the reasoning in UBS should be taken as altering the heavy onus lying upon the party alleging an abuse of process, and that a permanent stay should be ordered only in exceptional circumstances, relying on Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269 at [16] (Leeming JA and Simpson A-JA); Moubarak v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 at [71] (Bell P, with whom Leeming JA and Emmett AJA agreed), the latter case citing Jago v District Court of NewSouth Wales (1989) 168 CLR 23 at 31 (Mason CJ), 76 (Gaudron J); Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Walton v Gardiner (1993) 177 CLR 378 at 388 (Mason CJ, Deane and Dawson JJ). In my view, nothing said by the primary judge in Lantrak II indicates any departure from that principle.
The main criticism made by the Yammine interests of the primary judge’s reasoning was the contention that his Honour impermissibly elevated the principles in s 37M of the FCA Act, such that instead of being merely relevant to defining the exceptional circumstances that will justify a stay, they constituted the substance of, or substituted for, the normative evaluation engaged in by the plurality in UBS. That alleged error was said to be illustrated by the primary judge’s acknowledgement that: (i) in Lantrak II there was no “tactical manoeuvring” in a “pejorative sense”; (ii) the applicants’ solicitors communicated the possibility of further claims being brought prior to the trial in Lantrak I; and (iii) the causes of action in Lantrak I and Lantrak II were different, and did not arise from precisely the same facts. In those circumstances, it was submitted that the factors relied upon by the primary judge fell short of the exceptional circumstances required to be shown in order to justify a permanent stay for abuse of process.
In my view, the primary judge made no such error. Senior counsel for the Yammine interests conceded during oral argument that there could be an abuse of process in the absence of tactical manoeuvring in a pejorative sense (T156.42-46). Further, senior counsel for the Yammine interests conceded that a decision had been taken by her clients not to bring the claims earlier, being a forensic decision that they had to live with (T155.20-31). No challenge was made to the primary judge’s inference that it was a decision taken in order to avoid the consequences in Lantrak I of imperilling the trial dates. While the primary judge was right to contrast that with the kind of tactical manoeuvring involved in the particular staged litigation engaged in by the claimants in UBS, and did not suggest any element of opportunism or bad faith, the decision still constituted a forensic decision which was made to gain a forensic benefit. While the causes of action in the two proceedings, and the parties in those proceedings, were not identical, the degree of overlap in the facts and witnesses, and the commonality of issues, were very substantial. In my view, the primary judge was entirely correct to perceive the risk of inconsistent findings, both on matters of credibility of witnesses and on the substantive issues of fact which were at stake. Applying the reasoning in UBS at [34] and [61], the primary judge was duty-bound to take into account the overarching purpose set out in s 37M of the FCA Act, and I do not regard the primary judge as having given that overarching purpose any more prominence or weight than the majority of the High Court did in UBS.
Senior counsel for the Yammine interests also submitted that the primary judge had overstated the overlap in the material facts and evidence between the two sets of proceedings. First, it was submitted in relation to the overlap between the breach of fiduciary duty and “unjust enrichment” claims in Lantrak II, and all of the claims in Lantrak I except for the non-compete claim, that the overlap was attributed by the primary judge to the profitability of Lantrak NSW being relevant to both the price struck for the Yammine Parties’ shares in Lantrak NSW in Lantrak I and to the applicants’ fiduciary duty and account of profit claims in Lantrak II. It was then submitted that the profitability inquiry in Lantrak II would have differed from that in Lantrak I, in that Lantrak I focused on Lantrak NSW’s EBIT for the purpose of striking the price for the Yammine Parties’ shares, whereas Lantrak II would have focused on Lantrak NSW’s net profit or earnings per share for the purpose of determining whether the Liemant Parties breached their duties to the Yammine Parties by causing Lantrak NSW not to pay dividends to the Yammine Parties. While I accept that the relevant measure of profit is not identical, the analysis is substantially similar, except that in Lantrak I it was necessary to add back interest and tax expenses to net profit to arrive at an EBIT figure.
Second, it was submitted by the Yammine interests that the evidence in Lantrak I going to the formation of the commercial relationship between the Yammine Parties and the Liemant Parties, the original transfer of the RTS business to Lantrak NSW, and the conduct and profitability of the business through Lantrak NSW, were merely “contextual” matters, and were called in aid by the Yammine Parties to support their credit in that proceeding. Accordingly, it was submitted that it was not necessary for the Court to make findings about those matters in Lantrak I; however, in Lantrak II those matters would be necessary in order to determine the applicants’ $5 million claim. In my view, that submission understates the significance in Lantrak I of those matters. It was a major plank in the Yammine Parties’ case in Lantrak I that the manner adopted by the parties in forming their commercial relationship and engaging in the original transfer of the RTS business to Lantrak NSW in late 2016 provided a clear demonstration that Mr Yammine trusted Mr Liemant and was accustomed to doing business with him on a handshake without formal documentation, as the opening submissions of the Yammine Parties in Lantrak I emphasised. The centrality of those matters arose in Lantrak I because, in the absence of evidence concerning the nature of that initial transaction, it would have been very difficult for the Yammine Parties to demonstrate the rationality of their conduct when it came to the SPA, which would have had a major adverse impact on the plausibility of their claims based on the related conversations, and their claimed reliance on them.
In oral argument before us, senior counsel for the Yammine interests submitted that in relation to the “unjust enrichment” claim in Lantrak II there was not a substantial, or indeed any, degree of overlap with the claims in Lantrak I (T150.32-33). However, the so-called “unjust enrichment” claim appears to have been based on the proposition that Mr Yammine was short-changed in not having been paid the $5 million for the transfer of the RTS business to Lantrak NSW. That contention sits uncomfortably with the fact that the Yammine Parties’ case in Lantrak I was that the amount of $35 million which they claimed the Liemant Parties promised them reflected the value of the entire business of Lantrak NSW, not merely the 50% of that business which they were selling in October and November 2018. As I have indicated above in my reasoning in relation to Lantrak I, that was a substantial commercial benefit to the Yammine Parties, given that the value of the business had increased substantially in the two years since the initial $5 million transaction. I have also indicated in that reasoning that the price struck in the SPA of $13 million was very close to a figure of five times EBIT (being the formula used in the negotiations for the value of the entire business) on any conventional measure of EBIT at the time. Accordingly, the “unjust enrichment” claim in Lantrak II, as to the Yammine Parties being short-changed by non-payment of the $5 million agreed in late 2016 for 50% of the business, was inseparably connected to the transactions which were the subject of Lantrak I.
In my opinion, the reasoning of the primary judge in Lantrak II was entirely correct, and no error of any kind has been demonstrated. Accordingly, the following orders should be made in Lantrak II:
1.The applicants be granted leave to appeal.
2.The appeal be dismissed.
3.The applicants pay the respondents’ costs of the application for leave to appeal and of the appeal.

I certify that the preceding one-hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.
Associate:
Dated: 26 September 2023

Appeal from:	Yammine v Lantrak Holdings Pty Ltd (No 2) [2023] FCA 162 Yammine v Liemant [2022] FCA 1480
File numbers:	NSD 309 of 2023 NSD 1158 of 2022
Judgment of:	LEE, BUTTON AND JACKMAN JJ
Date of judgment:	26 September 2023
Catchwords:	CONSUMER LAW – whether primary judge erred in finding respondents had proved words spoken with a sufficient degree of precision to enable Court to be satisfied they were misleading – where promise made to “honour the deal” or pay “the balance” between non-binding heads of agreement and sale agreement did not specify sum of balance – pleaded representation not proved – ground of appeal established DAMAGES – whether primary judge erred in determining compensation payable for misleading or deceptive conduct – whether appropriate measure of damages the difference between real value of business acquired and price paid for it, or value of loss of commercial opportunity to sell business for a higher price – where no expert evidence led as to value of business – where damages for loss of chance not pleaded – appellants denied procedural fairness in a material way – ground of appeal established PRACTICE AND PROCEDURE – whether primary judge erred in deciding to stay permanently related proceedings on the basis that their continuation would amount to an abuse of process – whether leave to appeal should be granted –primary judge did not impermissibly elevate overarching purpose of practice and procedure provisions in Federal Court of Australia Act 1976 (Cth) – two sets of proceedings inseparably connected – leave to appeal granted – appeal dismissed
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2, ss 4, 4(1), 4(2), 18, 18(1), 236, 236(1) Evidence Act 1995 (Cth) Ch 2, ss 4(1)(b), 11, 27, 29(1), 192(2) Federal Court of Australia Act 1976 (Cth) ss 37M, 37M(1)(b), 37N(1) Supreme Court Rules 1970 (NSW)
Cases cited:	AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269 Batistatos v Roads and Traffıc Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Belconnen Lakeview Pty Ltd v Lloyd [2021] FCAFC 187; (2021) 156 ACSR 273 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 CBRE (V) Pty Ltd v Trilogy Funds Management Limited [2021] NSWCA 316; (2021) 107 NSWLR 202 Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575 Dodoro v Knighting [2004] VSCA 217; (2004) 10 VR 277 Egglishaw v Australian Crime Commission [2007] FCAFC 183; (2007) 164 FCR 224 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Gan v Xie [2023] NSWCA 163 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221 House v The King (1936) 55 CLR 499 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640 Jago v District Court of NewSouth Wales (1989) 168 CLR 23 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 Johnson v Gore Wood & Co [2002] 2 AC 1 Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 Kizbeau Pty Ltd v WG&B Pty Ltd (1995) 184 CLR 281 Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 142 ACSR 445 Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235 Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497 Moubarak v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 Orikan Group Pty Ltd v Vehicle Monitoring Systems Pty Ltd [2023] FCA 1031 Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 Potts v Miller (1940) 64 CLR 282 Re Luck [2003] HCA 70; (2003) 203 ALR 1 Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Selvaratnam v St George – A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 Stead v State Government Insurance Commission (1986) 161 CLR 141 Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1 Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd [2014] VSCA 351; (2014) 45 VR 585 Trilogy Funds Management v CBRE (V) Pty Ltd [2021] NSWSC 883 Tyne v UBS AG [2016] FCA 241; (2016) 338 ALR 624 UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 Walton v Gardiner (1993) 177 CLR 378 Watson v Foxman (1995) 49 NSWLR 315 Williams v Spautz (1992) 174 CLR 509 Yammine v Lantrak Holdings Pty Ltd (No 2) [2023] FCA 162 Yammine v Lantrak Holdings Pty Ltd [2022] FCA 179 Yammine v Liemant [2022] FCA 1480
The Hon Murray Gleeson AC, ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	331
Date of hearing:	21–22 August 2023
Counsel for the appellants in NSD 309 of 2023 and the respondents in NSD 1158 of 2022:	Mr AJ Bannon SC and Ms ZM Hillman
Solicitor for the appellants in NSD 309 of 2023 and the respondents in NSD 1158 of 2022:	Arnold Bloch Leibler
Counsel for the respondents in NSD 309 of 2023 and the applicants in NSD 1158 of 2022:	Ms R Higgins SC, Mr L Hawas and Mr L Moretti
Solicitor for the respondents in NSD 309 of 2023 and the applicants in NSD 1158 of 2022:	Baker McKenzie

NSD 309 of 2023
BETWEEN:	LANTRAK HOLDINGS PTY LIMITED First Appellant GARY ROBERT LIEMANT Second Appellant
AND:	NORMAN YAMMINE First Respondent NJA PTY LIMITED Second Respondent
ORDER MADE BY:	LEE, BUTTON AND JACKMAN JJ
DATE OF ORDER:	26 SEPTEMBER 2023

NSD 1158 of 2022
BETWEEN:	NORMAN YAMMINE First Applicant NJA PTY LTD Second Applicant RECYCLING AND TRANSPORT SOLUTIONS PTY LTD Third Applicant
AND:	MARK LIEMANT First Respondent GARY LIEMANT Second Respondent LANTRAK NSW PTY LTD Third Respondent
ORDER MADE BY:	LEE, BUTTON AND JACKMAN JJ
DATE OF ORDER:	26 SEPTEMBER 2023

LANTRAK 1	[29]
Ground 1	[30]
Ground 4	[38]
LANTRAK 2	[39]
Introduction	[39]
Background facts	[43]
*The parties and the claims advanced in the two proceedings*	[45]
*Procedural aspects of Lantrak 1 and Lantrak 2*	[60]
*The hearing of the interlocutory application*	[66]
The primary judge’s reasons	[79]
The grounds of appeal	[94]
Whether leave to appeal is required: interlocutory or final decision	[95]
Legal principles: abuse of process	[108]
Consideration	[127]
*The extent of the overlap*	[133]
*The course of trial: any factual overlap largely of the Liemant parties’ making*	[144]
*The Liemant parties’ new argument on appeal: the whole of business valuation issue*	[157]
*Other matters*	[163]
The significance of the solicitors’ correspondence	[163]
Delay and inefficiency	[164]
Differences in the parties	[167]
*Conclusion*	[168]