Whisson v Eastland Technology Australia Ltd - [2004] WASCA 272

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: WHISSON & ANOR -v- EASTLAND TECHNOLOGY AUSTRALIA LTD [2004] WASCA 272

CORAM: STEYTLER J
MCKECHNIE J
JENKINS J

HEARD: 11 AUGUST 2004

DELIVERED : 25 NOVEMBER 2004

FILE NO/S: FUL 55 of 2003

BETWEEN: MAXWELL EDMUND WHISSON
First Appellant (First Respondent)
DEAN BRIAN PRESTIDGE
Second Appellant (Second Respondent)
AND
EASTLAND TECHNOLOGY AUSTRALIA LTD
Respondent (Applicant)

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :ACTING MASTER CHAPMAN
Citation  :EASTLAND TECHNOLOGY AUSTRALIA LTD v WHISSON & ANOR [2003] WASC 54
File No  :COR 334 of 2002
Result  :Appeal dismissed

Catchwords:

Statutory demand - Whether issue estoppel created by previous statutory demand - Arguments not then advanced - Whether issue estoppel created by judgment and declaration - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant (First Respondent)           :        Mr A J N Aristei
Second Appellant (Second Respondent)   :        Mr A J N Aristei
Respondent (Applicant)  :        Mr P I Jooste QC &
Mr D K J Skender

Solicitors:

First Appellant (First Respondent)           :        B W Ashdown
Second Appellant (Second Respondent)   :        B W Ashdown
Respondent (Applicant)  :        Gadens Lawyers

Case(s) referred to in judgment(s):

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Eastland Technology Australia Ltd v Whisson [2003] WASC 54
Eastland Technology Australia Pty Ltd v Whisson [2002] WASC 150
Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Case(s) also cited:

Barclays Australia (Finance) v Mike Gaffikin Marine (1996) 21 ACSR 235
Bell Construction Services Pty Ltd v Form-Kwip Building Services Pty Ltd [2001] NSWSC 73
Civil Systems Pty Ltd v ET Constructions Pty Ltd [2000] NSWSC 1119
Eagle Homes Pty Ltd v LED Builders Pty Ltd [1999] NSWSC 1049
Financial Solutions Australasia Pty Ltd v Predella Pty Ltd (2002) 26 WAR 306
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
Henderson v Henderson (1843) 3 Hare 100
Hoare Bros Pty Ltd v Deputy Federal Commissioner of Taxation (1995) 16 ACSR 213
Predella Pty Ltd v Financial Solutions Australasia Pty Ltd [2001] WASC 54
Scope Data Systems Pty Ltd v BDO Nelson Parkhill (2003) 199 ALR 56
Shum Yip Properties Development Ltd v Chatswood Investment & Development Co Pty Ltd (2002) 16 FLR 451

STEYTLER J: On 21 December 2001 the appellants served on the respondent a demand under s 459E of the Corporations Law (as it then was). In their demand they claimed the sum of $623,965.02. Of that sum, $30,000 was said to have been due on or before 30 September 1999 pursuant to cl 5.2 of a Licence Agreement dated 25 January 1999 made between the parties, as varied by a deed of variation dated 5 June 1999. That clause reads as follows:
"Subject to the provisions appearing below, the Licensee [the respondent]…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] WASCA 272
Decision Date: 25 NOVEMBER 2004

CaseChat Overview and Summary

The case of Whisson v Eastland Technology Australia Ltd involved extensive litigation between the parties over a novel parenteral device known as the Di-Med Invention. Dr Whisson and Mr Prestidge served a statutory demand on Eastland Technology Australia Ltd (Eastland) for $320,000, which Eastland sought to set aside. This was the second statutory demand issued by the appellants; the first, for a significantly larger amount, had been set aside by Master Bredmeyer in March 2002. The primary legal issue in the case was whether Eastland was estopped from disputing the appellants' claim, either by virtue of the previous statutory demand or by the judgment and declaration issued by Templeman J in June 2002.

The court found that, even if the appellants were correct in their contention that issue estoppel should apply, it did not necessarily advance their position. The Master had considered a number of factors in setting aside the statutory demand, and the existence of an appeal from Templeman J's judgment was particularly significant. The appeal might result in the setting aside of Templeman J's finding of breach, which was central to the appellants' claim. Therefore, the court dismissed the appeal and did not consider Eastland's contention that it had an offsetting claim that exceeded the debts alleged to be due.

The final orders of the court were to dismiss the appeal and to uphold the decision of Acting Master Chapman to set aside the statutory demand. The appeal was dismissed with costs, reflecting the court's view that the Master's decision was not clearly erroneous and that the appeal did not sufficiently advance the appellants' case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MCKECHNIE J

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Ratio Decidendi

Legal Principle Established

Established by: MCKECHNIE J

Even if the appellants are right in their contention (see, in this respect, Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454), it does not advance their position. The appeal was only one of a number of factors taken into account by the Master and was not considered by him to be decisive. More importantly, perhaps, the existence of an appeal from the judgment of Templeman J (which might, of course, result in the setting aside of Templeman J's finding of breach, It follows that I would dismiss the appeal. This makes it unnecessary to consider the notice of contention, by which the respondent contends that it has an offsetting claim far in excess of the debts alleged to be due.MCKECHNIE J: There has been extensive litigation between the parties to do with a novel form of parenteral device known as the Di‑Med Invention. In 1999, Eastland Technology Australia Ltd ("Eastland") commenced an action against Dr Whisson, Mr Prestidge and an associated company. The action was subsequently settled on 16 May 1999. On 3 December 1999, Eastland commenced further proceedings seeking to set aside the Deeds of Settlement of May and June 1999. These further proceedings were resolved by Templeman J in Eastland Technology Australia Pty Ltd v Whisson [2002] WASC 150 on 14 June 2002. An appeal against that decision is pending. On 22 October 2002, Dr Whisson and Mr Prestidge served on Eastland a statutory demand pursuant to the Corporations Law par 459E in the sum of $320,000 broken down as follows: Eastland applied to set aside the statutory demand and was successful before Acting Master Chapman: Eastland Technology Australia Ltd v Whisson [2003] WASC 54. There had been earlier proceedings (in COR 18 of 2002) when Dr Whisson and Mr Prestidge issued a statutory demand against Eastland in the sum of $623,965.02. Eastland applied to set aside the statutory demand and Master Bredmeyer, in a judgment that was delivered on 15 March 2002, but not published, held that Eastland had raised a genuine dispute and the demand should be set aside. At that stage, as Master Bredmeyer noted, the proceedings were then pending before Templeman J. Master Bredmeyer decided then that if Eastland succeeded in that action the licence agreement will, in effect, be set aside and no fees of any kind will be repayable by Eastland to the respondents. No appeal was taken against the Master's decision, perhaps understandably in the circumstances. Grounds 1, 2 and 3 claim that Eastland is estopped from disputing that the judgment of Templeman J adjudicated upon the matters the subject of the statutory demand and established the appellant's liability to pay. Ground 3 raises issue estoppel in relation to Master Bredmeyer's decision. The Acting Master held at [6] of his reasons:"There are, in my view, a number of issues which are open to be argued in relation to the existence of the debt, the amount of any debt and whether or not there is an offsetting claim. There are issues such as the correct interpretation of the licence agreement, the correct calculation of any licence fee, whether any debt was due and payable at the relevant time, the effect of the termination notice and any breach of the licence agreement."