EASI and the Australian and New Zealand subsidiaries of HungryPanda entered into an asset purchase agreement (“APA”) under which EASI sold its online take-away food delivery business to the HungryPanda companies. The HungryPanda companies commenced a proceeding in the High Court of England and Wales seeking relief against various individuals and companies in the EASI group for alleged breaches of the APA. They then commenced a proceeding in the Supreme Court of Victoria against Fantuan Australia alleging that it induced or procured the EASI parties to breach the APA. Fantuan Australia joined the EASI parties and others as third parties to the Victorian proceeding, and applied for a temporary stay of the Victorian proceeding pending the determination of the UK proceeding. The third parties also applied for a stay of the third party proceeding pending the determination of the UK proceeding.
Attiwill J granted a temporary stay of the Victorian proceeding and dismissed the application to stay the third party proceeding. Relevantly, he pointed to the following factors as weighing in favour of staying the Victorian Proceeding:
- the UK proceeding was commenced first, and it was the first substantive proceeding;
- as the UK proceeding concerned a broader set of claims, the practical effect of the determination of the UK proceeding first was likely to be greater than the determination of the Victorian proceeding first;
- there was a risk of the UK court and the Victorian court competing to see which one would determine common facts first;
- there was likely to be a commonality of witnesses in the UK proceeding and the Victorian proceeding, and it may be burdensome and inconvenient to them to be involved in both proceedings; and
- the law should strive against permitting multiplicity of proceedings in relation to similar issues, and there would be a substantial waste of time and effort if it became a common practice to bring actions in two courts involving substantially the same issues.
