The Court of Appeal has refused leave to appeal from a judgment refusing to stay proceedings for an Anshun estoppel: Inghams Enterprises Pty Ltd v Hannigan [2021] NSWCA 309. Michael Henry SC, leading David Hughes, represented the successful party.
The bases upon which the Court of Appeal refused leave to appeal were threefold. First, that it was not unreasonable for the respondent to the leave application, as plaintiff in earlier proceedings, to seek urgent declaratory relief as to whether the parties' contract was validly terminated without seeking consequential relief in the form of specific performance or damages in the earlier proceedings. Secondly, the applicant for leave to appeal, as defendant in the Court below, filed its stay application almost 4 months after the commencement of the proceedings in the Court below. It then filed a notice of intention to appeal prior to filing an application for leave to appeal following the dismissal of its stay application. Both of these delays were unexplained and proceeding in this way counted strongly against a grant of leave to appeal. Thirdly, it remained open for the applicant for leave to a appeal to challenge, as defendant at the trial to be had in the Court below, the reasons why consequential relief was not sought by the plaintiff in the earlier proceedings.
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