IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Commercial Court

S ECI 2022 00588

HUNGRYPANDA AU PTY LTD (ACN 630 315 132) & ORS (according to the attached Schedule)	Plaintiffs	
		
v		
		
FANTUAN AUSTRALIA PTY LTD (ACN 656 561 492)	Defendant	
		
and		
		
EASI GLOBAL LIMITED (HK) (A COMPANY INCORPORATED IN HONG KONG WITH COMPANY NUMBER (2754411)) & ORS (according to the attached Schedule)
	Third Parties	

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JUDGE:	ATTIWILL J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	1 and 2 September 2022 	
DATE OF RULING:	15 March 2023	
CASE MAY BE CITED AS:	HungryPanda AU Pty Ltd & Ors v Fantuan Australia Pty Ltd & Ors 	
MEDIUM NEUTRAL CITATION:	[2023] VSC 102	

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PRACTICE AND PROCEDURE – Application by defendant and some third parties to temporarily stay the proceeding – Application also by third parties to temporarily stay the third party proceeding – Plaintiffs commenced earlier proceeding in the High Court of Justice, Business and Property Courts of England and Wales – Defendant not a party to the proceedings in the High Court of Justice – Third parties are defendants to, or are recipients of a ‘letter before action’ from the plaintiffs’ solicitors in relation to, the proceedings in the High Court of Justice – Common alleged facts and similar issues in both proceedings – Advantages and disadvantages of a temporary stay of the proceeding and of a temporary stay of the third party proceeding – Effect of a foreign jurisdiction clause in an agreement made between the plaintiffs and some third parties – Whether the proceeding or the third party proceeding should be temporarily stayed – Sections 29 and 30 of the Supreme Court Act 1986, ss 7, 8 and 9 of the Civil Procedure Act 2010, Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (1992) 34 FCR 287, Tucker v State of Victoria [2021] VSCA 120 and Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (2010) 79 ACSR 383 applied – Application to temporarily stay the proceeding granted until further order – Application to temporarily stay the third party proceeding dismissed.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiffs	Mr J W S Peters AM QC with
Mr M P Costello, Ms J Nikolic and Mr A Terzic 	White & Case 	
			
For the Defendant	Mr D J Williams AM QC with
Mr S Clement 	Macpherson Kelley	
			
For the 1st to 5th and 9th Third Parties	Mr R Heath QC with
Mr D Kim	DLA Piper Australia 	
			
For the 6th to 8th and 10th Third Parties	Mr C H Truong QC with
Ms J Zhou 	Neo Legal 	

TABLE OF CONTENTS

INTRODUCTION	1
PARTIES’ MATERIALS	3
BACKGROUND	6
Parties	6
Asset Purchase Agreement	13
Sale and Joint Venture documents	17
P&L Group Holdings Pty Ltd	22
Fantuan Australia	23
High Court proceeding	24
Victorian proceeding	37
Federal Court proceedings	51
Stay applications	54
APPLICABLE PRINCIPLES	54
SUBMISSIONS	60
ANALYSIS	77
Which proceeding was commenced first?	77
Which was the first substantive proceeding?	78
Did the HungryPanda Companies choose to commence a proceeding 
against the Sellers first?	79
Did Fantuan Australia delay in commencing the third party proceeding?	82
Whether the termination of one proceeding is likely to have material effect 
on the other	85
Legal effects	85
Material effect as a practical matter	91
Public interest	94
Public interest factor submitted by the HungryPanda Companies	94
Public interest factor submitted by Fantuan Australia	97
The undesirability of two courts competing to see which one determines 
common facts first	98
Consideration of the circumstances relating to witnesses	101
Whether work done in preparation may be wasted	103
How far advanced proceedings are in each court	104
The law should strive against permitting multiplicity of proceedings in 
relation to similar issues	106
The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues	111
Generally balancing the advantages and disadvantages to each party	116
The HungryPanda Companies and the opportunity to obtain 
meaningful relief and the timely resolution of their claims	116
Is it unlikely that the HungryPanda Companies will obtain 
injunctive relief in the Victorian proceeding as it is ‘anti-competitive’?	119
If the Victorian proceeding is stayed, will the HungryPanda 
Companies be able to obtain meaningful injunctive relief against 
Fantuan Australia in the Victorian proceeding?	120
If the Victorian proceeding is stayed, are the HungryPanda 
Companies able to obtain meaningful injunctive relief against 
Fantuan Australia by alternate means? For example, by joining 
Fantuan Australia to the High Court proceeding or by commencing 
a new proceeding against it in England?	121
Are damages an adequate remedy for the HungryPanda Companies’ claims in the Victorian proceeding?	123
Assuming that a stay of the Victorian proceeding is a disadvantage 
to the HungryPanda Companies’ claims in the Victorian proceeding, 
is that disadvantage addressed by any other matters?	123
Conclusion	124
Fantuan Australia and its intended reliance upon the judgment of the High Court	124
Fantuan Australia and the prosecution of its third party claims in the event
 that the third party proceeding is stayed	126
Fantuan Australia and the enforcement of judgment against it if the third 
party proceeding is stayed	134
Third parties and the possibility of being involved in two proceedings and 
two trials in the event of no stay	135
Is the third party proceeding the consequence of the way in which the 
HungryPanda Companies have chosen to make their claims in the Victorian proceeding?	137
Is the third party proceeding an abuse of process as a result of the third party 
statement of claim incorporating allegations from the High Court proceeding, 
and, if so, what is the effect?	139
Foreign jurisdiction clause in the Asset Purchase Agreement	142
Applicable laws to the dispute in the Victorian proceeding	148
English law	148
Australian law	149
Did Fantuan Australia delay in making the application for a stay?	151
SUMMARY OF FACTORS	153
EXERCISE OF DISCRETION	156
CONCLUSION	160

HIS HONOUR:
INTRODUCTION
1	On 15 October 2021, the plaintiffs (HungryPanda Companies) entered into an agreement entitled ‘Asset Purchase Agreement’ with the first to fourth third parties (Sellers) concerning the purchase of a business, which included an online take-away food ordering service business known as ‘EASI’ carried on in Australia (Asset Purchase Agreement).
2	On 16 February 2022, the HungryPanda Companies commenced a proceeding in the High Court of Justice, Business and Property Courts of England and Wales against the Sellers in which they allege, among other things, breaches by the Sellers of the Asset Purchase Agreement (High Court proceeding).
3	On 28 February 2022, the HungryPanda Companies commenced this proceeding against the defendant (Fantuan Australia) in which they allege, among other things, that Fantuan Australia induced or procured the Sellers to breach the Asset Purchase Agreement (Victorian proceeding).
4	On 28 February 2022, HungryPanda AU Pty Ltd (the first plaintiff in the Victorian proceeding and first claimant in the High Court proceeding) commenced a proceeding in the Federal Court of Australia against QINN International Group Pty Ltd and a number of alleged contractors and employees of HungryPanda AU Pty Ltd (Federal Court proceeding).  The Federal Court proceeding was transferred to this Court.  On 8 June 2022, Croft J ordered, by consent, that the transferred proceeding be wholly discontinued, upon various undertakings, including an undertaking given by HungryPanda AU Pty Ltd not to bring particular proceedings identified in the undertaking.
5	On 15 June 2022, Fantuan Australia filed a summons in which it seeks a stay of the Victorian proceeding pending the determination or resolution of the High Court proceeding or until further order.
6	On 29 July 2022, Fantuan Australia commenced third party proceedings in the Victorian proceeding (third party proceedings) against:
(a)	the Sellers, Junquan (Peter) Liu and Ye (Gary) Ge (Sellers and Executives Third Parties);
(b)	Xiaoyun (Sharon) Wang, Helin (Will) Wang, Yingmin (Evan) Li and Aijuan (Annie) Shi (Other Executives Third Parties);
(collectively the Third Parties).
7	On 26 August 2022, the Other Executives Third Parties filed a summons in which they seek a stay of the Victorian proceeding pending the determination or resolution of the High Court proceeding or until further order.  Alternatively, they seek a stay of the third party proceeding pending the determination or resolution of the High Court proceeding or until further order ‘on the basis that any findings made in the proceedings between the plaintiff [sic] and the defendant during the period of the third party proceeding is stayed are not binding on the third parties’.
8	On 29 August 2022, the Sellers and Executives Third Parties filed a summons in which they seek a stay of the third party proceeding until a determination of the High Court proceeding.
9	As a result, the primary issues presently before the Court are whether:
(a)	the Victorian proceeding should be stayed pending the determination or resolution of the High Court proceeding or until further order; or
(b)	the third party proceeding in the Victorian proceeding should be stayed pending the determination or resolution of the High Court proceeding or until further order.
10	The HungryPanda Companies oppose a stay of the Victorian proceeding but do not oppose a stay of the third party proceeding.  The HungryPanda Companies submitted that a stay of the third party proceeding was likely but it was a matter for the Court.
11	For reasons I am about to give, I will stay the Victorian proceeding until further order.
PARTIES’ MATERIALS
12	The parties did not rely upon substantial parts of the affidavits (including exhibits) filed on these applications.
13	The HungryPanda Companies relied upon:
(a)	an affidavit of Jinwan (Tina) Sun, director of HungryPanda AU Pty Ltd, made 15 March 2022 (Sun affidavit);
(b)	an affidavit of Victoria Nomikos, principal solicitor of Macpherson Kelley, solicitors for Fantuan Australia, made 6 June 2022 (First Nomikos affidavit);
(c)	affidavits of Bradley Strahorn, partner of White & Case, solicitors for the HungryPanda Companies, made 7 June 2022 (First Strahorn affidavit) and 24 June 2022 (Second Strahorn affidavit);
(d)	an affidavit of Victoria Burton, partner of White & Case, made 16 June 2022 (Burton affidavit);
(e)	submissions filed 24 June 2022 (HungryPanda Companies’ submissions) and further submissions filed 30 August 2022 (HungryPanda Companies’ further submissions) (together with bundles of authorities).
14	Fantuan Australia relied upon:
(a)	the Sun affidavit;
(b)	the First Nomikos affidavit and an affidavit of Victoria Nomikos made 16 June 2022 (Second Nomikos affidavit);
(c)	submissions filed 24 June 2022 (Fantuan Australia’s submissions) and further submissions filed 30 August 2022 (Fantuan Australia’s further submissions) (together with a bundle of authorities).
15	The Sellers and Executives Third Parties relied upon:
(a)	an affidavit of Gowri Kangeson, partner of DLA Piper Australia, former solicitors for the Sellers and Executives Third Parties, made 28 August 2022 (Kangeson affidavit); and
(b)	submissions filed 29 August 2022 (Sellers and Executives Third Parties’ submissions) and further submissions filed 2 September 2022 (Sellers and Executives Third Parties’ further submissions) (together with a bundle of authorities).
16	The Other Executives Third Parties relied upon:
(a)	the Burton affidavit;
(b)	an affidavit of Chang Loon Lee, solicitor of Neo Legal, solicitors for the Other Executives Third Parties, made 26 August 2022 (Lee affidavit);
(c)	the Kangeson affidavit;
(d)	submissions filed 26 August 2022 (Other Executives Third Parties’ submissions) (together with  bundles of authorities), the HungryPanda Companies’ submissions, Fantuan Australia’s submissions and the Sellers and Executives Third Parties’ submissions; and
(e)	a document titled ‘Pleadings – Comparison table updated’ provided to Chambers on 1 September 2022 (Other Executives Third Parties’ Pleadings Comparison Table). This was a further version of the document that was attached to the Other Executives Third Parties’ submissions.
17	Counsel for the parties made submissions at the hearing of the applications. 
BACKGROUND
Parties
18	It is convenient to set out a table of the relevant entities and persons in relation to the Victorian proceeding and the High Court proceeding. This includes those entities and persons who have received a ‘letter before action’ from the HungryPanda Companies’ solicitors in relation to the High Court proceeding.
PERSON/ENTITY	ROLE UNDER ASSSET PURCHASE AGREEMENT	VICTORIAN PROCEEDING	HIGH COURT PROCEEDING	
HungryPanda AU Pty Ltd
	‘Purchaser’ under Asset Purchase Agreement.	First plaintiff
	First claimant 	
HungryPanda Japan Ltd	‘Purchaser’ under Asset Purchase Agreement.	Second plaintiff	Second claimant	
HungryPanda (NZ) Ltd	‘Purchaser’ under Asset Purchase Agreement.	Third plaintiff
	Third claimant 	
Fantuan Australia Pty Ltd	Incorporated on 14 January 2022.
Activated its platform for online takeaway food ordering services on 26 February 2022 and announced its official launch on 1 March 2022.	Defendant
	Not a party	
EASI Global Limited
(also referred to as ‘EASI Global Limited (HK)’ and 
‘EASI Global’)	‘Seller’ under Asset Purchase Agreement.
	First third party
	Third respondent
Referred to as a member of the ‘EASI Defendants’ (HungryPanda Companies’ particulars of claim, [2]).
Also referred to as a member of the ‘EASI Conspiracy Defendants’ (HungryPanda Companies’ particulars of claim, [17]).
	
Chongqing Meikelaifuyireer Technology Co Ltd
(also referred to as ‘EASI China’)
	‘Seller’ under Asset Purchase Agreement.
	Second third party 	Fourth respondent
Referred to as a member of the ‘EASI Defendants’ (HungryPanda Companies’ particulars of claim, [2]).
Also referred to as a member of the ‘EASI Conspiracy Defendants’ (HungryPanda Companies’ particulars of claim, [17]).
	
Yan (Linda) Liu	‘Seller’ under Asset Purchase Agreement.	Third third party
Alleged to be EASI Global’s Business Advisor and referred to as a ‘Senior EASI Executive’ (HungryPanda Companies’ statement of claim, [8(b)]).
Also alleged to be a member of the ‘Assumed Employees’ under the Asset Purchase Agreement (HungryPanda Companies’ statement of claim, [35(c)]).
	First respondent
Referred to as a member of the ‘EASI Defendants’ (HungryPanda Companies’ particulars of claim, [2]).
Also referred to as a member of the ‘EASI Conspiracy Defendants’ (HungryPanda Companies’ particulars of claim, [17]).
Also referred to as a member of the ‘Senior EASI Executives’ (HungryPanda Companies’ particulars of claim, [56]).
Alleged owner (through a holding company) of 63% of the shares in EASI Global (HungryPanda Companies’ particulars of claim, [3]).	
Jie Shen	‘Seller’ under Asset Purchase Agreement.
	Fourth third party
	Second respondent
Referred to as a member of the ‘EASI Defendants’ (HungryPanda Companies’ particulars of claim, [2]).

Alleged owner (through a holding company) of 24% of the shares in EASI Global (HungryPanda Companies’ particulars of claim, [3]).	
Junquan (Peter) Liu		Fifth third party 
Alleged to be EASI Global’s Chief Executive Officer and referred to as a ‘Senior EASI Executive’ (HungryPanda Companies’ statement of claim, [8(a)]).
Also alleged to be a member of the ‘Assumed Employees’ under the Asset Purchase Agreement (HungryPanda Companies’ statement of claim, [35(c)]).	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.
Referred to as a member of the ‘Senior EASI Executives’ (HungryPanda Companies’ particulars of claim, [56]).	
Xiaoyun (Sharon) Wang		Sixth third party
Alleged to be EASI Global’s Chief Financial Officer and referred to as a ‘Senior EASI Executive’ (HungryPanda Companies’ statement of claim, [8(c)]).
Also alleged to be a member of the ‘Assumed Employees’ under the Asset Purchase Agreement (HungryPanda Companies’ statement of claim, [35(c)]).
	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.
Referred to as a member of the ‘Senior EASI Executives’ (HungryPanda Companies’ particulars of claim, [56]).
Alleged to have commenced employment with ‘HungryPanda’ on 25 October 2021 as the Chief Financial Officer and also referred to as a member of the ‘EASI Key Employees’ (HungryPanda Companies’ particulars of claim [31(2)(a)]).	
Helin (Will) Wang		Seventh third party
Alleged to be EASI Global’s Investment and Legal Advisor and referred to as a ‘Senior EASI Executive’(HungryPanda Companies’ statement of claim, [8(d)]).
Also alleged to be a member of the ‘Assumed Employees’ under the Asset Purchase Agreement (HungryPanda Companies’ statement of claim, [35(c)]).	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.
Referred to as a member of the a ‘Senior EASI Executives’ (HungryPanda Companies’ particulars of claim, [56]).
Alleged to have commenced employment with ‘HungryPanda’ on 25 October 2021 as the investment and legal manager and also referred to as a member of the ‘EASI Key Employees’ (HungryPanda Companies’ particulars of claim, [31(2)(d)]).
	
Yingmin (Evan) Li		Eighth third party
Alleged to be EASI Global’s Chief Investment Officer and referred to as a ‘Senior EASI Executive’(HungryPanda Companies’ statement of claim, [8(e)]).
Also alleged to be a member of the ‘Assumed Employees’ under the Asset Purchase Agreement (HungryPanda Companies’ statement of claim, [35(c)]).	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.
Referred to as a member of the ‘Senior EASI Executives’ (HungryPanda Companies’ particulars of claim, [56]).
Alleged to have commenced employment with ‘HungryPanda’ on 25 October 2021 as the Chief Technology Officer and also referred to as a member of the ‘EASI Key Employees’ (HungryPanda Companies’ particulars of claim, [31(2)(b)]). 
	
Ye (Gary) Ge		Ninth third party
Alleged to be EASI Global’s Chief Technology Officer and referred to as a ‘Senior EASI Executive’(HungryPanda Companies’ statement of claim, [8(f)]).

Also alleged to be a member of the ‘Assumed Employees’ under the Asset Purchase Agreement (HungryPanda Companies’ statement of claim, [35(c)]).
	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.
Referred to as a member of the ‘Senior EASI Executives’ (HungryPanda Companies’ particulars of claim, [56]).
	
Aijuan (Annie) Shi		Tenth third party
Alleged to be EASI Global’s Chief Marketing Officer and referred to as a ‘Senior EASI Executive’(HungryPanda Companies’ statement of claim, [8(g)]).
Also alleged to be a member of the ‘Assumed Employees’ under the Asset Purchase Agreement (HungryPanda Companies’ statement of claim, [35(c)]).
	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.
Referred to as a member of the ‘Senior EASI Executives’ (HungryPanda Companies’ particulars of claim, [56]).
Alleged to have commenced employment with ‘HungryPanda’ on 25 October 2021 as the Chief Marketing Officer and also referred to as a member of the ‘EASI Key Employees’ (HungryPanda Companies’ particulars of claim, [31(2)(c)]).	
Leping Wu		Not a party
Alleged to be a director, and Chief Executive Officer, of Fan Tuan Holding Ltd (ie ‘Fantuan Canada’) (HungryPanda Companies’ statement of claim, [13]).	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.	
Yaofei Feng		Not a party
Alleged to be a director of Fan Tuan Holding Ltd (ie ‘Fantuan Canada’)(HungryPanda Companies’ statement of claim, [13]).	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.	
Fan Tuan Holding Ltd 
(also referred to as ‘Fantuan Canada’)
 		Not a party
Alleged to have had the ‘Common Intention’ with the Sellers in relation to the establishment and launch of the Fantuan business (HungryPanda Companies’ statement of claim, [9(a)].
	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.	
Just Order Enterprise Co		Not a party
Alleged to be the sole shareholder of AU Fan Tuan Pty Ltd (HungryPanda Companies’ statement of claim, [20]).	Not a party
Recipient of a ‘letter before action’ from the HungryPanda Companies’ solicitors.	
Asset Purchase Agreement
19	The Asset Purchase Agreement provides for a payment of $55M by the HungryPanda Companies (ie the ‘Purchasers’ under the Asset Purchase Agreement) for the purchase of the ‘Business’ as a going concern, less certain liabilities, employee entitlements and adjustments, from the Sellers.  The ‘Business’ includes, inter alia, ‘all business activities carried on by the Sellers and any other member of the Sellers’ Group on the date of this Agreement in Australia’ and ‘the online take-away food ordering service business carried on by the JV Entities and the Franchisees on the date of this Agreement in Australia’.  The assets include assets concerning the EASI business in Australia.  The Asset Purchase Agreement provides for a ‘First Closing Date’ and a ‘Second Closing Date’ for the purchase of the assets.
20	Ms Nomikos, principal solicitor of Macpherson Kelley, solicitors for Fantuan Australia, gave evidence that the EASI business is primarily a food delivery application service that operates in a niche market focusing on Asian restaurants.  The application coordinates ordering and delivery of food items from merchant restaurants to customers.
21	I will now refer to some of the key provisions of the Asset Purchase Agreement referred to by the parties.
22	Clause 23.1 of the Asset Purchase Agreement provides for, inter alia, a number of post-completion restrictions in the form of undertakings given by the Sellers:
23.1 	Each of the Sellers severally undertakes that it shall not and shall procure that each other member of the Sellers’ Group (and in the case of (d) below, JV Entity or Franchisee) shall not, directly or indirectly, either alone or jointly with or as agent for any other person or in any capacity whatsoever:
(a) 	neither pending nor within two (2) years following the Second Closing Date, carry on or be engaged or otherwise interested in, in each case directly or indirectly, any business which competes with the Business or any part of the Business (including any coupon deal marketplace business relating to the Business) in the Target Countries, the Republic of South Korea, Singapore, France or Italy;
(b) 	neither pending nor within three (3) years following the Second Closing Date, solicit the custom of any person who is or at any time during the two (2) years immediately preceding the Second Closing Date has been a customer or client of any member of the Sellers’ Group, JV Entity or Franchisee in relation to the Business;
(c) 	neither pending nor within three (3) years following the Second Closing Date solicit or entice away any Assumed Employee or any person who was employed by any member of the Sellers’ Group in the Business at any time during the twelve (12) months immediately preceding the Second Closing Date or employ any such person;
(d) 	at any time after the First Closing Date (other than as permitted by Clause 23.4):
(i) 	use:
(A) 	the EASI Name Rights;
(B) 	any other trade, business or domain name or trade mark, logo or design that has previously been used in the Business; or
(C) 	any trade, business or domain name or trade mark, logo or design which is, in the opinion of the Purchasers, capable of being confused with any of the foregoing described in (A) or (B); or
(ii) 	challenge the validity or enforceability of any of the EASI Name Rights; or
(e) 	assist or incite any other person to do any of the above.
23	Clause 25.1 provides for confidentiality undertakings by the Sellers.
24	Clause 35 provides:
35.	Third Party Rights
35.1	This Agreement is made for the benefit of the Parties and their successors and is not intended to benefit any other person, and no other person shall have any right to enforce any of its terms, except that Clause 3.3 (Excluded Liabilities), Clause 4 (JV Businesses and Franchisee Businesses), Clause 11 (VAT), Clause 12 (Risk and Insurance), Clause 15 (Transfer of Contracts), Clause 17 (Employees), Clause 23 (Post-completion Restrictions), Clause 25 (Confidentiality), Clause 27 (Assignment) and Clause 29 (Wrong Pockets), are intended to benefit members of the Purchasers’ Group, Clause 18.7 (Sellers’ Warranties) is intended to benefit all Assumed Employees, any present or past employee engaged to any extent in the Business, or any present or past Agent of any member of the Purchasers’ Group, and Clause 30 (Entire Agreement) is intended to benefit a Party’s Related Persons, and each such Clause shall be enforceable by any of them to the fullest extent permitted by law, subject to the other terms and conditions of this Agreement.
35.2	The Parties may amend or vary this Agreement in accordance with its terms without the consent of any other person.
25	Clause 41 provides:
41.	Governing Law and Jurisdiction
41.1	This Agreement, including any non-contractual obligations arising out of or in connection with this Agreement, is governed by and shall be construed in accordance with English law.
41.2	The Parties agree that the courts of England shall have exclusive jurisdiction to hear and determine any suit, action or proceedings arising out of or in connection with this Agreement (including any non-contractual obligations arising out of or in connection with this Agreement) (“Proceedings”) and, for such purposes, irrevocably submit to the jurisdiction of such courts. Nothing in this Clause shall (or shall be construed so as to) limit the Purchasers’ right to take Proceedings against the Sellers in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by law.
26	The First Closing Date was 25 October 2021 and the Second Closing Date was 14 December 2021.
27	Ms Sun, director of HungryPanda AU Pty Ltd, gave evidence concerning market share and the purpose of the acquisition by the HungryPanda Companies of the EASI business:
78.	Prior to the Acquisition, the share of the market in Australia for food delivery services to the overseas Chinese community was around:
a. 	HungryPanda AU ~ 40%
b. 	EASI ~ 40%
c. 	Non-specialised food delivery services such as UberEats, Deliveroo and  Door Dash~ 20%.
79.	The purpose of the Acquisition from HungryPanda’s perspective was to take advantage of the departure of EASI from the Australian market and significantly increase HungryPanda AU’s market share in a short period of time, to around 70 – 80%.
Sale and Joint Venture documents
28	On 10 January 2022 Fan Tuan Holding Ltd (ie ‘Fantuan Canada’) and EASI Global Ltd (ie the first third party in the Victorian proceeding and the third respondent in the High Court proceeding) signed a letter entitled ‘Offer to acquire all of EASI Global Ltd, and its related entities’ business activities in Australia and all other countries’ (Letter of Intent).  It provides, inter alia:
This letter of intent (“Letter of Intent”) is further to the discussions to date between Yan Liu, as the largest shareholder of the Corporation (“Liu”) and Fan Tuan Holding Ltd. (the “Buyer”). The Buyer understands that the Liu is the largest legal and beneficial owner of all of the outstanding shares in the capital of EASI Global Ltd. (referred to herein as the “Corporation” or the “Seller”). The provisions of this Letter of Intent will confirm the interest of the parties with respect to the Buyer’s proposed purchase from the Seller of all the rights, interests property and titled owned by the Seller as set out below (the “Proposed Transaction”) in connection with all business activities carried out by the Seller and its related entities in Australia and other countries (the “Business”).
…
3. Purchase Price
The aggregate purchase price (the “Purchase Price”) for the Business will be an aggregate of up to AUD$55,000,000 in cash, payable by wire transfer, plus the issuance of 14% of outstanding common shares of the Buyer (the “Fan Tuan Payment Shares”), subject to the following:
…
4. Key Employees
Before or on the Closing Date, each of Yan Liu (Business Advisor), Annie Shi (CMO), Evan Li (CIO), Sharon Wang (CFO), Gary Ge (CTO), together with any other individuals identified by the Buyer during the course of its due diligence (collectively, the “Key Employees”) will have entered into employment agreements with the Buyer and the Corporation obligating them to employment to the Corporation from the Closing Date until at least the date that is three years thereafter, on terms and conditions as those parties may agree, each acting reasonably.
…
6. Closing and Conditions of Closing
The parties intend that the Closing Date will occur no later than June 30, 2022. The closing of the Proposed Transaction will be subject to the usual conditions of closing in favour of a Buyer, all of which will be included in the Definitive Agreement, including the following:
(a) 	the termination of the Asset Purchase Agreement, dated October 15, 2021, between Seller and an undisclosed purchaser; which shall include, but not be limited to, terms with respect to the return, by such purchaser, of the purchased assets (“Returned Assets”) to the Seller and waiver of any claims by such purchasers, all such terms to the satisfaction of the Buyer;
…
15. No Negotiations with Other Parties
The Seller agrees to send official termination notice approved by the Buyer to the undisclosed purchaser of the Asset Purchase Agreement, dated on October 15, 2021, within two days after signing this Letter of Intent.
29	The Letter of Intent is signed by Leping Wu on behalf of Fan Tuan Holding Ltd and Yan Liu on behalf of EASI Global Ltd.
30	On 10 January 2022 Fan Tuan Holding Ltd and EASI Global Ltd signed a document entitled ‘Side Letter Agreement’ (Side Letter Agreement). It provides, inter alia:
This side letter agreement (this “Side Letter Agreement”) is entered into on or about [January 10] , 2022, in connection with the letter of intent, entered into on this date by and between Fan Tuan Holding Ltd. (“Fan Tuan”) and EASI Global Ltd. (“EASI”) in connection with Fan Tuan’s offer to acquire all of EASI’s and its related entities’ business activities in Australia and worldwide (the “LOI”), all subject to and pursuant to terms set forth in the LOI. 
EASI and its controlling shareholder Yan Liu represent (collectively referred to as the “Sellers”) to Fan Tuan that they have an intention to terminate the Asset Purchase Agreement (“Termination and Restitution”), dated October 15, 2021, between EASI and an undisclosed purchaser (the “APA” and the “Purchaser”, respectively).
The parties to this Side Letter Agreement agree to that subject to EASI’s compliance with the terms of the LOI, in the event that EASI’s Termination and Restitution is challenged by the Purchasers, then Fan Tuan agrees to reimburse the Sellers (jointly and not individually) for the following expenses:
a. 	fifty percent of the documented legal fees incurred by EASI as of the completion of the LOI in defending claims by the Purchaser regarding the Termination and Restitution, Fan Tuan shall have a right, at its sole discretion to accept or reject the amount of such legal fees; and
b. 	fifty percent of any termination fees agreed to pay by EASI to Purchaser as part of settling a dispute with respect to the Termination and Restitution, provided that as a condition to such reimbursement, Fan Tuan shall have a right, at its sole discretion to accept or reject the amount of such termination fees.
31	The Side Letter Agreement is signed by Leping Wu on behalf of Fan Tuan Holding Ltd and Yan Liu on behalf of EASI Global Ltd.
32	Fantuan Australia alleges that as the Sellers did not terminate the Asset Purchase Agreement the condition precedent in paragraph 6(a) of the Letter of Intent was not satisfied and that the Letter of Intent and Side Letter Agreement were thereby rendered null and void and that there was no sale or transfer of assets owned by EASI Global Ltd to any Fantuan entity.
33	There was no issue between the parties that the Asset Purchase Agreement has not been terminated. As I set out later in these Reasons, the HungryPanda Companies instituted the High Court proceedings on 16 February 2022 to enforce it.
34	On 10 January 2022, Fan Tuan Holding Ltd and P&L Group Holdings Pty Ltd also signed a document entitled ‘Joint Venture Term Sheet’ (Joint Venture Term Sheet).  It provides, inter alia:
This joint venture term sheet sets out the principal terms between Fan Tuan Holdings Ltd. (“FT”) and P&L Group Holdings Pty Ltd. (“PL” and, together with FT, and including their respective designated affiliates, the “JV Parties” and each a “JV Party”) for the creation of a joint venture to operate and manage the online take-away food ordering services business in Australia, through a newly created corporation (the “Joint Venture”).
35	The Joint Venture Term Sheet is signed by Leping Wu on behalf of Fan Tuan Holding Ltd and Bowen Xu on behalf of P&L Group Holdings Pty Ltd.
36	On 10 February 2022, AU Fan Tuan Pty Ltd, P&L Group Holdings Pty Ltd and Fantuan Australia entered into written agreement entitled ‘Joint Venture Agreement’ (Joint Venture Agreement).  This is admitted by Fantuan Australia.  This was a few weeks prior to Fantuan Australia activating its platform for online take-away food ordering services and announcing its official launch on 1 March 2022.
37	It is marked as a confidential exhibit but the Court was informed at the hearing that the claim for confidentiality had been resolved.  It provides, inter alia:
BACKGROUND 
Fan Tuan and P&L have agreed to enter into a joint venture to own, operate and manage an online take-away food ordering services business in Australia
Fan Tuan and P&L as Shareholders in the Company wish to record the commercial terms of their agreement for the: 
(a) 	the activities and management of the Company; and 
(b) 	the shareholding and share transfer of their shares in the Company;  in this agreement. 
The Company has been made party to this Agreement in order to acknowledge the terms of this Agreement and to bind it to any obligations imposed on it by this Agreement.
…
2.	Initial Shareholdings in the Company
2.1	Initial Meetings
Within seven (7) Business Days of the date of exaction of this Agreement, the Company must cause the following meetings to be held to consider and pass the resolutions referred to in the table below:
2.2	Share Subscription
	
Meeting of Shareholders 	Appointment of Directors nominated by Fan Tuan and P&L;
Appointment of additional Director nominated by P& L;	
Meeting of Directors 	Nominated of person authorised to operate the Company bank account; 
Notification to Company bank of change of authorised persons; and 
Issue of Ordinary Shares to Fan Tuan and P&L.	
Subject to the holding of the meetings referred to in clause 2.1:
(a)	Fan Tuan agrees to subscribe for 510 Shares in the Company for the subscription price of $5,000,000 being the 1st instalment payable in accordance with clause 10 of this Agreement; and
(b)	P&L agrees to subscribe for 390 Shares for the subscription price of $5,000,000 being the 1st instalment payable in accordance with clause 10 of this Agreement.
2.3	Nominations of Directors and Authorised Persons
Immediately following execution of this Agreement:
(a)	Fan Tuan must:
(i)	Nominate three person to be appointed as Directors of the Company; and
(ii) 	Nominate persons to be authorised to operate the Company bank account.
(b)	P&L must:
(i)	Nominate an additional person to be appointed as Director of the Company; and
(ii)	Nominate persons to be authorised to operate the Company bank account.
38	The Joint Venture Agreement provides, inter alia, for the appointment and removal of the directors of the joint venture company, financing of the joint venture company and for senior management to share in the profits of the joint venture company.
39	The Joint Venture Agreement is signed by Leping Wu on behalf of AU Fan Tuan Pty Ltd and Bowen Xu on behalf of P&L Group Holdings Ltd and Fantuan Australia.
40	On 31 March 2022, AU Fan Tuan Pty Ltd, P&L Group Holdings Pty Ltd and Fantuan Australia entered into a written agreement entitled ‘Amendment to Joint Venture Agreement’ (Amendment to Joint Venture Agreement).  This is admitted by Fantuan Australia.  Similarly, it is also marked as a confidential exhibit and the Court was informed at the hearing that the claim for confidentiality had been resolved.  It made amendments to, inter alia, provisions concerning the initial shareholding in the joint venture company, financing of the joint venture of the company and to the economic interest and distribution policy.
41	The Amendment to Joint Venture Agreement is signed by Leping Wu on behalf of AU Fan Tuan Pty Ltd and Bowen Xu on behalf of P&L Group Holdings Ltd and Fantuan Australia.
P&L Group Holdings Pty Ltd
42	P&L Group Holdings Pty Ltd was incorporated on 6 January 2022.  Upon its incorporation, Mr Xu was the sole director and shareholder of P&L Group Holdings Pty Ltd.  Ms Sun gave evidence that Mr Xu was formerly engaged as a delivery operations dispatcher in connection with the EASI business, and then with the HungryPanda Companies, following the Asset Purchase Agreement.  Fantuan Australia admits that Mr Xu was engaged as a delivery operation dispatcher by QINN International Pty Ltd (who was alleged to have provided staff to the HungryPanda Companies and was a respondent in the Federal Court proceeding) from 31 May 2021 to 19 January 2022 and provided services in connection with the EASI business.
Fantuan Australia
43	Fantuan Australia was incorporated on 14 January 2022.  Upon its incorporation, the sole director of Fantuan Australia was Bowen Xu and the company had 100 issued shares for the sum of $100, which were held by P&L Group Holdings Pty Ltd.
44	Fantuan Australia now has 1,000 issued shares for the sum of $2,000,100. Its current shareholders are P&L Group Holdings Pty Ltd (490 shares, being the initial 100 shares and 390 additional shares) and AU Fan Tuan Pty Ltd (510 shares).  This is consistent with cl 2.2 of the Joint Venture Agreement concerning share subscriptions in Fantuan Australia.
45	Mr Strahorn, partner of White & Case, solicitors for the HungryPanda Companies,  gave evidence:
Based on the information summarised above, Fantuan Australia has received only AUD 2,000,100 in share capital contributions. AUD 2,000,000 of those contributions were received in mid-May 2022, over 2 months after Fantuan Australia entered the market. As Fantuan Australia has not provided access to its financial information, HungryPanda has not been able to confirm what funds Fantuan Australia received and from whom to enable it to launch a business in Australia on 1 March 2022 and to continue trading for a significant period of time before making its first substantial share issue. Nor has HungryPanda been able to ascertain the amount of those funds paid as share capital have been consumed on it ordinary trading activities and commitments.
46	Mr Xu remains a director of Fantuan Australia.  There are now four other directors of Fantuan Australia.  These include Yaofei Feng and Leping Wu, who have both received a ‘letter before action’, in relation to the High Court proceeding, and are also alleged to be directors of Fan Tuan Holding Ltd (ie ‘Fantuan Canada’).
47	The results of the search of the national property ownership register of Fantuan Australia show that it does not hold any real property in Australia.
48	On 26 February 2022, Fantuan Australia activated its platform for online take-away food ordering services and announced its official launch on 1 March 2022.
High Court proceeding
49	On 16 February 2022, the HungryPanda Companies commenced the High Court proceeding against the Sellers by filing a ‘Claim Form’.  The addresses stated in the Claim Form for the Sellers are as follows:
(a)	Yan Liu: 440 Docklands Dr, Docklands, Victoria 3008, Australia;
(b)	Jie Shen: 17 Lansell Road, Toorak, Victoria 3142, Australia;
(c)	EASI Global Ltd: Rooms 1001-03, 10/F, Wing On Kowloon Centre, 345 Nathan Road, KL, Hong Kong; and
(d)	Chongqing Meikelaifuyireer Technology Co Ltd: 1802, No 164, Xinnan Road, High-Tech District, Chongqing, China (Postcode 40000).
50	The Claim Form set out ‘[b]rief details of claim’:
1.	By an agreement dated 15 October 2021, the Defendants agreed to sell and the Claimants agreed to purchase, the entire “EASI” Business (as defined) together with the Assets (as defined), as a going concern (“the APA”). 
2.	In breach of the APA, the Defendants:
(a)	failed to transfer certain First Closing and Second Closing Assets (“the Withheld Assets”);
(b)	acted in breach of various post-completion restrictions;
(c)	otherwise acted in breach of the APA.
3.	As a result, the Claimants have suffered loss and damage.
4.	The Defendants claim:
(1)	Specific performance of the Defendants’ obligations to deliver the Withheld Assets, together with ancillary relief;
(2)	An injunction preventing further breaches of the post-completion restrictions;
(3)	Declaratory Relief;
(4)	Damages to be assessed;
(5)	Damages as an alternative to (1) and (2) pursuant to section 50 of the Senior Courts Act 1981;
(6)	Interest pursuant to section 35A of the Senior Courts Act 1981;
(7)	Further ancillary or other relief.
51	On 16 February 2022, the HungryPanda Companies also filed an ‘Application Notice’ in which they sought the following orders:
The Defendants:
(a)	transfer to the Applicants the Critical Withheld Assets (as defined in Kelu Liu 1);
(b)	refrain from competing with the Business (as defined in the asset purchase agreement between the parties dated 15 October 2021 (the “APA”));
(c)	refrain from soliciting/employing Assumed Employees (as defined in the APA); and
(d)	pay the Claimants’ costs of an occasioned by this Application, such costs to be the subject of detailed assessment on the indemnity basis if not agreed.
52	The ‘Application Notice’ set out the following grounds:
The Defendants are bound by the APA, pursuant to which they were required to transfer the Assets of the Business to the Applicants on the First and Second Closing Dates (as defined in the APA) and pursuant to which they are bound by provisions restraining them from competing with the Business and from soliciting/employing Assumed Employees, as more fully set out in the attached witness statement, Kelu Liu 1.
53	The application was supported by a witness statement of Kelu Liu, the founder and Chief Executive Officer of the ‘HungryPanda corporate group’, in which he stated, inter alia:
39	Yet worse, it has very recently emerged that HungryPanda's largest global competitor in the Asian-food delivery space, 'Fantuan' (which had no existing market-share in the region), appears to be moving into the Australian market. On 22 January 2022, an entity named Fantuan Australia Pty Ltd was registered in Australia for GST (Australia value-added-tax) purposes, shortly after incorporation the week before on 14 January 2022…
40	As noted above, the purpose of the Acquisition to HungryPanda was the absorption of the EASI Business as the vehicle for HungryPanda’s expansion in Australasia. The business rationale is obvious – as succinctly recognised in press commentary at the time: “In finalising the deal, HungryPanda took out its only material competitor in the Australian market, which has now become its largest, with a total of 3.5 million active customers, 60,000  merchants and roughly 40,000 drivers”…
41	As a result of the Sellers’ continued control over the EASI Business via the IT Systems that they are withholding in beach of the APA, however, HungryPanda has not ‘taken out’ its only material competitor in the Australian market, nor has it been able to absorb that competitor to become a dominant force in the Australian market.
42	Now, Fantuan, HungryPanda's global competitor, is seeking to enter the Australian market, and it appears to be doing so via the very Goodwill and ex-employees of the EASI Business that were supposed to be acquired by HungryPanda. In particular, information from HungryPanda merchants and representatives strongly indicates that Fantuan is seeking to build its network in Australia, using the contacts and services of former EASI representatives to accelerate that establishment:
(a)	On 9 February, a merchant owner in the Burwood area of Sydney sent a WeChat message to Shenghua Liu, regional manager of HungryPanda in Sydney, saying: “the previous BD for Easi Burwood [Zhiwei Mao]…Visited our store on behalf of Fantuan hahaha…wish us to use/go online with Fantuan”…I understand from Qinglin Li that Zhiwei Mao was a contractor transferred to the Applicants on the First Closing Date, who resigned on 21 January 2022.
(b)	I understand from Xiaochen Yi (HungryPanda business development representative) that Annie Shi (ex-CMO for EAS) and Ring Yang (ex-Regional Manager for Melbourne) are being represented to merchants as leaders of the Fantuan team – i.e. providing business continuity as successors to the EASI operations.
(c)	I understand from Raymond Zhou (head of HungryPanda delivery management) that EASI’s delivery riders are being poached by Fantuan with wage offers of AU$ 350 per day.
54	The HungryPanda Companies’ application was listed for an urgent hearing on 22 February 2022.  The HungryPanda Companies’ application was dismissed, by consent, on that day, upon the Sellers (ie the respondents) giving a number of undertakings:
A.	The Respondents shall forthwith (and by no later than 4:00pm GMT on Wednesday 23 February 2022) transfer, or procure the transfer to the Applicants of, all Critical Withheld Assets as set out in the attached Schedule, that have not been transferred to the Applicants as at the date hereof.
B.	Each Respondent:
(a)	will not use Critical Withheld Assets and will not prevent, hinder or in any way interfere with the Applicants’ use and enjoyment of the Critical Withheld Assets;
(b)	will not carry on or be engaged or otherwise interested in, directly or indirectly, any business that competes with the Business or any part of the Business in the Target Countries, the Republic of South Korea, Singapore, France or Italy (as those terms as defined in the APA) for a period of two years from 14 December 2022;
(c)	will not solicit, entice away and/or employ any Assumed Employee or any person who was employed by any member of the Sellers’ Group at any time in the twelve months preceding 14 December 2021 (as those terms are defined in the APA), for a period of three years from 14 December 2021;
(d)	will not assist or incite any other person to any of (a), (b) or (c) above;
(e)	will not procure that each member of the Sellers’ Group (as defined in the APA) shall not, directly or indirectly, either alone or jointly with or as agent for any other person or in any capacity whatsoever act as prohibited in (a), (b), (c) and (d) above.
55	The schedule to the order is titled ‘Critical Withheld Assets’ and describes assets ‘critical to the running of the Business’.  It includes administrator accounts, passwords and authentication, software security protections and social media accounts.
56	The High Court also ordered, by consent, that the Sellers pay £139,526.16 to the HungryPanda Companies.
57	On 24 March 2022, the HungryPanda Companies filed an amended claim form.  It set out the following amended ‘[b]rief details of claim’:
1.	By an agreement dated 15 October 2021, the Defendants agreed to sell and the Claimants agreed to purchase, the entire “EASI” Business (as defined) together with the Assets (as defined), as a going concern (“the APA”).
2.	In breach of the APA, the Defendants:
(a)	failed to transfer certain First Closing and Second Closing Assets (“the Withheld Assets”);
(b)	acted in breach of various post-completion restrictions;
(c)	otherwise acted in breach of the APA.
2A.	The Defendants conspired between themselves and with others: (i) to sell the EASI Business and/or its Assets to another purchaser, (ii) to carry on, be engaged in, or otherwise interested in a business competing with the EASI Business, (iii) to solicit, or entice away or employ any Assumed Employee (as defined) or any person who was employed by any member of the Sellers’ Group (as defined) in the EASI Business at any time during the twelve months immediately preceding the Second Closing Date (as defined) and/or (iv) to otherwise act in breach of the APA.
2B.	In further breach of the APA, the Defendants transferred Assets which included the Claimants’ confidential information to others, in breach of confidence.
2C.	The Defendants have induced and/or procured each other’s breaches of the APA.
3.	As a result, the Claimants have suffered loss and damage.
4.	The Defendants [sic] claim:
(1)	Specific performance of the Defendants’ obligations to deliver the Withheld Assets, together with ancillary relief;
(2)	An injunction preventing further breaches of the post-completion restrictions;
(3)	Declaratory Relief;
(4)	Damages to be assessed;
(5)	Damages as an alternative to (1) and (2) pursuant to section 50 of the Senior Courts Act 1981;
(5A)	An account of profits;
(6)	Interest pursuant to section 35A of the Senior Courts Act 1981;
(7)	Further ancillary or other relief.
58	On 6 May 2022, the HungryPanda Companies filed a document entitled ‘Particulars of Claim’.  In summary, the primary causes of action are:
(a)	The EASI Defendants (ie the Sellers) failed to transfer and/or deliver the ‘Withheld Assets’ in breach of the Asset Purchase Agreement.
(b)	The EASI Defendants breached other clauses of the Asset Purchase Agreement, including  cls 18.1, 23.1, 25 and 28. The allegations of breach of cl 23.1(a) concern, inter alia, allegations that the EASI Defendants have directly carried on and been engaged with or otherwise interested in businesses that compete with the Business, namely Fantuan Australia and Fantuan Canada.
(c)	The EASI Conspiracy Defendants (ie the first, third and fourth defendants) breached an obligation of confidence by using or disclosing the EASI Databases without the HungryPanda Companies’ consent.
(d)	The EASI Conspiracy defendants engaged in an unlawful means conspiracy. This includes an allegation that the EASI Conspiracy Defendants combined with others, including Peter Liu and Fan Tuan Holding Ltd, with the common aim of establishing a competing business in Australia (under the Fantuan name) using assets, employees and contractors of the EASI Business acquired by the HungryPanda Companies in order to compete with the Hungry Panda Companies and the Business.
59	The HungryPanda Companies seek the following relief in the particulars of claim:
AND THE CLAIMANTS CLAIM
As against the Defendants:
(a)	Specific performance of the Defendants’ obligations to deliver the Withheld Assets listed in Annex I, together with ancillary relief as set out in paragraph 164(3) above;
(b)	An injunction preventing further breaches of Clause 23 and 25, in terms set out at paragraph 166 above;
(c)	Damages to be assessed;
(d)	Declaratory relief, in terms set out at paragraph 164(2) above;
(e)	Damages as an alternative to (1) and (2) pursuant to section 50 of the Senior Courts Act 1981;
(f)	Equitable damages;
(g)	An account of profits;
(h)	Interest pursuant to section 35A of the Senior Courts Act 1981;
(i)	Further ancillary or other relief.
As against the First, Third and Fourth Defendants, exemplary damages.
60	The terms of the proposed injunction are set out in the particulars of claim:
The terms of the injunction order which HungryPanda seeks are as follows:
(1)	that the Sellers shall not carry on or be engaged or otherwise interested in, directly or indirectly, any business which competes with the Business or any part of the Business in the Target Countries, the Republic of South Korea, Singapore, France or Italy for a period of two years from 14 December 2021, in accordance with the Sellers’ obligations pursuant to Clause 23.1(a);
(2)	that the Sellers shall not solicit entice away and/or employ any Assumed Employee or any person who was employed by any member of the Sellers’ Group in the Business at any time during the twelve (12) months immediately preceding the Second Closing Date, for a period of three years from 14 December 2021, in accordance with the Sellers’ obligations pursuant to Clause 23.1(c);
(3)	that the Sellers shall not solicit the custom of any person who is or at any time during the two (2) years immediately preceding the Second Closing Date has been a customer or client of any member of the Sellers’ Group, JV Entity or Franchisee in relation to the Business, for a period of three years from 14 December 2021, in accordance with the Sellers’ obligations pursuant to Clause 23.1(b);
(4)	that the Sellers shall not assist or incite any other person to do (1), (2) or (3);
(5)	that the Sellers shall procure that each members of the Sellers’ Group shall not, directly or indirectly, either alone or jointly with or as agent for any other person or in any capacity whatsoever act as prohibited in (1), (2), (3), (4) above.
(6)	that neither the Sellers nor any members of the Sellers’ Group shall instruct, encourage and/or in any way influence any HungryPanda employee to delete or destroy Business Information (including without limitation any data held in mobile devices or computers issued to such employees in connection with their employment);
(7)	that the Sellers shall treat as confidential, shall not use, shall not disclose, and shall procure that each member of the Sellers’ Group shall treat as confidential, shall not use and shall not disclose, the EASI Merchant Database, the EASI Delivery Driver Database and the EASI Customer Database to any third party, in accordance with the Sellers’ obligations pursuant to Clause 25.1;
(8)	that the Sellers shall confirm that no Business Information has been provided to any third party, and, following the transfer of all the Withheld Assets to HungryPanda:
(a)	no Business Information (including in particular but without limitation any merchant contact details) will be retained by or on behalf of the Sellers, any other member of the Sellers’ Group and/or any of their associates or related persons, and
(b)	the Sellers will procure the irretrievable deletion of any copies of such data in the possession and/or control of all such persons.
61	On 9 May 2022, the solicitors for the HungryPanda Companies sent a letter entitled ‘letter before action’ to Fan Tuan Holding Ltd and Just Order Enterprise Corp in which they referred to them jointly as ‘Fantuan Canada’ and stated, inter alia:
Unlawful means conspiracy
12	It is clear from certain documents recovered by McGrathNicol that Fantuan Canada have conspired with the Defendants and others to use unlawful means to cause loss or damage to HungryPanda. HungryPanda’s claims in unlawful means conspiracy are summarised at paragraphs 135-158 of the POC and set out in detail in that document. By way of summary, Fantuan Canada are liable to HungryPanda for the reasons set out below.
13	As set out at paragraph 135 of the POC, the Defendants, the Senior EASI Executives (as defined at paragraph 56 of the POC) and Fantuan Canada have combined with the common aim of establishing a competing business in Australia using the Fantuan name to compete with the EASI Business. In this regard, Fantuan Australia Pty Ltd was incorporated on 14 January 2022, and officially launched its business in Australia on 1 March 2022.
14	As set out at paragraphs 140-158 of the POC, the Defendants, the Senior EASI Executives and Fantuan Canada intended to injure HungryPanda, by seeking to benefit at HungryPanda’s expense. Such benefit and injury was the inevitable result of using, and transferring from HungryPanda, assets, staff and information of the EASI Business, and in establishing and operating a business in Australia using the same, in order to compete with HungryPanda.
15	As set out at paragraphs 37-134 of the POC, in pursuit of the combination, Fantuan Canada and others have taken the unlawful actions detailed in those paragraphs.
16	As set out at paragraphs 159-163 of the POC, HungryPanda has suffered the following loss and damage:
(a)	Loss suffered as a result of breach of contract and breach of confidence (as set out at paragraphs 112-132 and 160-163 of the POC);
(b)	Managerial time spent investigating and dealing with the consequences of the launch of Fantuan Australia (with personnel being significantly diverted from their usual activities and the launch of Fantuan Australia having significantly disrupted the business of HungryPanda); and
(c)	McGrathNichol’s fees of AUD 320,718.40 plus GST to date, and estimated to total AUD 520,000 plus GST.
Procuring a breach of contract
17	Further, and in the timescales outlined below, HungryPanda intends to amend its POC to include claims against Fantuan Canada for inducing and/or procuring breaches of the APA. These claims will be based on the facts and matters as pleaded in the POC.
Action required
[sic, paragraph number 17 is used twice in this letter]
17	We strongly urge you to seek English law advice in relation to the matters outlined in this letter and in the POC.
18	For the reasons set out in this letter and the POC, Fantuan Canada are co-conspirators to the unlawful means conspiracy perpetuated against HungryPanda and are liable to pay damages and to provide other relief.
19	Accordingly, HungryPanda intends to join Fantuan Canada as defendants to the Proceedings. Pursuant to CPR Part 19.2(2), HungryPanda will apply to the English High Court to add Fantuan Canada as defendants and for these purposes will seek to: (i) re-amend its Amended Claim Form; and (ii) amend the POC.
20	By 4:00pm GMT on 27 May 2022, please confirm whether Fantuan Canada consent to be joined as defendants in the Proceedings, and provide any response to the matters alleged against Fantuan Canada in this letter and the POC.
21	Should Fantuan Canada’s consent to be joined as parties to the Proceedings not be forthcoming in the timeframe requested, HungryPanda will apply to the English High Court as outlined above to add Fantuan Canada as defendants to the Proceedings, and for permission to serve the relevant documents on Fantuan Canada outside the jurisdiction. Any additional costs incurred by HungryPanda in connection with addition of Fantuan Canada to the Proceedings as defendants, or for service of proceedings on Fantuan Canada (including but not limited additional costs incurred in connection with the application for permission to serve out of the jurisdiction) will be sought on the indemnity basis.
62	On 20 May 2022, the solicitors for the HungryPanda Companies sent similar letters, also each entitled ‘letter before action’, to Leping Wu, Junquan (Peter) Liu, Xiaoyun (Sharon) Wang, Helin (Will) Wang, Yaofei Feng and Ye (Gary) Ge.  In the letter to Sharon Wang it is stated, inter alia:
Unlawful means conspiracy 
12	It is clear from certain documents recovered by McGrathNicol that you have conspired with the EASI Conspiracy Defendants and others to use unlawful means to cause loss or damage to HungryPanda. HungryPanda’s claims in unlawful means conspiracy are summarised at paragraphs 135-158 of the POC and set out in detail in that document.
13	By way of summary, you are liable to HungryPanda for the reasons set out below.
…
15	The EASI Conspiracy Defendants, Fan Tuan Holding Ltd (“Fantuan Canada”), and you, have combined with the common aim of establishing a competing business in Australia using the Fantuan name to compete with the EASI Business (see paragraph 135 of the POC). In this regard, Fantuan Australia Pty Ltd was incorporated on 14 January 2022, and officially launched its business in Australia on 1 March 2022.
16	You intended to injure HungryPanda, by seeking to benefit at HungryPanda’s expense. Such benefit and injury was the inevitable result of using, and transferring from HungryPanda, assets, staff and information of the EASI Business, and in establishing and operating a business in Australia using the same, in order to compete with HungryPanda (see paragraph 136 of the POC).
…
20	Further, and in the timescales outlined below, HungryPanda intends to amend its POC to include claims against you for inducing and/or procuring breaches of the APA. These claims will be based on the facts and matters as pleaded in the POC.
…
22	For the reasons set out in this letter and the POC, you are a co-conspirator to the unlawful means conspiracy perpetuated against HungryPanda and you are liable to pay damages and to provide other relief.
23	Accordingly, HungryPanda intends to join you as a defendant to the Proceedings. Pursuant to CPR Part 19.2(2), HungryPanda will apply to the English High Court to add you as a defendant and for these purposes will seek to: (a) re-amend its Amended Claim Form; (b) amend the POC; and (c) apply for permission to serve you out of the jurisdiction.
24	By 4:00pm GMT on 3 June 2022, please:
(a) 	confirm whether you consent to be joined as a defendant in the Proceedings;
(b) 	provide an address for service of proceedings in England or Wales; and
(c) 	provide any response to the matters alleged against you in this letter and the POC.
63	On 30 May 2022, the solicitors for Junquan (Peter) Liu, Xiaoyun (Sharon) Wang, Helin (Will) Wang and Ye (Gary) Ge sent letters to the solicitors for the HungryPanda Companies in which they stated that, inter alia, they would endeavour to respond by 1 July 2022.
64	Ms Burton gave evidence that, as at 16 June 2022:
In addition to following the procedural timetable described above, HungryPanda intends to join a number of additional defendants to the English Proceeding. The proposed additional defendants include Fantuan Canada and Just Order Enterprises Corp. (together, the Fantuan Canada Entities), Leping Wu and Yaofei Feng (directors of the Fantuan Canada Entities), and six senior executives of the EASI Business, Junquan “Peter” Xu, Xiaoyun “Sharon” Wang, Helin “Will” Wang, Yi “Gary” Ge, Aijuan “Annie” Shi and Yingmin “Evan” Li (the EASI Executive Defendants).
65	On 17 June 2022, the HungryPanda Companies’ solicitors also sent letters each entitled ‘letter before action’ to Aijuan (Annie) Shi and Yingmin (Evan) Li in very similar terms to the letters they sent to the other persons on 20 May 2022.
66	On 14 July 2022, the EASI Defendants filed an ‘Application Notice’ in which they seek, inter, the following order:
1.	Pursuant to CPR 3.4(2)(a) the Claimants’ non-contractual claims, being:
(i) 	its claim in the tort of unlawful means conspiracy pleaded at paragraphs 17, 25(4), 52-54, 135-159, 168 and 169 (insofar as it relates to the claim for unlawful means conspiracy) of the Particulars of Claim (“the Conspiracy Claim”); and
(ii) 	an equitable and/or tortious claim for breach of confidence pleaded at paragraphs 102-104, 159(1) (insofar as it relates to the claim for breach of confidence), 162 and 166 (insofar as it relates to the claim for breach of confidence, and in particular sub-paragraphs (3) and (4)) of the Particulars of Claim and paragraphs (f) and (g) of the Prayer of Relief) (the “Breach of Confidence Claim”),
stand stuck out and the Amended Claim Form and Particulars of Claim shall be (re-)amended accordingly.
67	Some of the impugned paragraphs, the subject of the strike out application, are relied upon by Fantuan Australia in its third party notice in the Victorian proceeding (ie paragraphs [102]-[104] of the particulars of claim in the High Court proceeding).
68	On 28 July 2022, the Sellers filed a further ‘Application Notice’ in which they seek, inter alia, orders for the HungryPanda Companies to provide further information and clarification with respect to a number of requests for information.
69	The HungryPanda Companies have provided draft ‘Amended Particulars of Claim’.  The key new proposed allegations in the draft amended particulars of claim include:
(a)	further allegations of knowledge in support of the claim of unlawful means conspiracy;
(b)	a new substantive claim that the ‘EASI Conspiracy Defendants’ engaged in fraudulent misconduct.
70	The Sellers and Executives Third Parties informed the Court that the strike out application was set down for hearing early this year but that there was no evidence before the Court of this.
71	Ms Burton gave evidence:
Assuming the English Proceeding progresses with the joinder of the additional defendants and service out of the jurisdiction, in my view, the first CMC would likely not be listed before the Easter term in 2023 (i.e., late April or May 2023). Accordingly, it is likely that the main trial would not be listed until around April 2024 at the earliest. Depending on the conduct of the EASI Defendants and/or the proposed additional defendants, it may take significantly longer to reach the first CMC and the main trial.
Victorian proceeding
72	Ms Burton gave evidence:
10.	Following the transfer of certain of the Critical Withheld Assets, HungryPanda discovered that certain of the defendants (namely, Yan Liu, EASI Global and EASI China (together, the EASI Conspiracy Defendants)) had deleted documents and information, including approximately 81% of the data in the EASI Microsoft Exchange system, which hosted the electronic records of the EASI Business, including email records. The data recovery specialists engaged by HungryPanda on 25 February 2022, McGrathNicol, have since recovered a significant volume of the deleted material.
11.	Upon reviewing the recovered material, HungryPanda learnt that, from at least 24 November 2021, the EASI Conspiracy Defendants conspired with Fan Tuan Holding Ltd (Fantuan Canada) with the common aim of establishing an online food delivery business in Australia (under the Fantuan name) using assets, employees and contractors of the EASI Business.
12.	Shortly thereafter, Fantuan Australia announced that it intended to launch the Fantuan business in Australia on 1 March 2022, a soft opening having commenced on 26 February 2022. This prompted HungryPanda to commence the Australian Proceeding seeking interim injunctive relief restraining Fantuan Australia from supplying food delivery and related services in Australia.
73	On 28 February 2022, the HungryPanda Companies commenced the Victorian proceeding against Fantuan Australia by writ and an indorsement of claim.  The indorsement included:
(a)	allegations concerning the deletion of data;
(b)	allegations concerning the proposed acquisition of the EASI business by Fantuan Australia;
(c)	allegations concerning the similarities between the EASI platform and Fantuan Australia’s platform;
(d)	claims concerning the receipt and misuse by Fantuan Australia of confidential information; and
(e)	claims that Fantuan Australia knowingly induced its employees and contractors to breach their contracts.
74	The HungryPanda Companies’ indorsement of claim also stated at [46]:
By bringing this proceeding, limited to urgently seeking to restrain Fantuan Australia from supplying food delivery and related services in Australia, including through the Fantuan Delivery mobile application, HungryPanda does not abandon any further or additional causes of action or proceedings it may wish to pursue against Fantuan Australia or any other parties, including for inducing breach of contract by ex-employees of and ex-contractors to HungryPanda.
75	On 28 February 2022, the HungryPanda Companies also filed a summons in which they sought, inter alia, an order as follows:
2.	Until further order, the defendant be restrained, whether directly or indirectly, and whether by itself or its officers, employees and agents, from supplying food delivery and related services in Australia, including (without limitation) through the Fantuan Delivery mobile application.
76	Mr Strahorn, partner of White & Case, solicitors for the HungryPanda Companies, gave evidence that this application was made on an urgent basis because, among other reasons, there was a reasonable basis to believe that Fantuan Australia had established a competing online food delivery business in Australia and was about to commence trading using the HungryPanda Companies’ confidential information and staff.
77	On 28 February 2022 and 3 March 2022, the HungryPanda Companies’ application was heard before Riordan J.
78	At the hearing on 3 March 2022:
(a)	Riordan J said:
…this is a case where effectively the interlocutory proceeding really would be tantamount to final relief and in those circumstances I’m thinking that really we should be applying our mind to expedite as an urgent trial of this matter which I think is in the interest of both parties frankly.
(b)	Fantuan Australia, by its counsel, without any admission of its liability or any acknowledgment of receipt of any merchant list of the HungryPanda Companies, undertook to the Court for and on behalf of Fantuan Australia and its director, Mr Bowen Xu, not to use any information in its or his possession, custody or control, comprising the HungryPanda Companies’ merchants lists, or any information derived from such merchant list(s).
(c)	The Court, inter alia, ordered:
On receipt of notice from [HungryPanda’s] solicitors requesting that it do so, and until further order, [Fantuan Australia] and Mr Xu immediately provide to any independent accountant nominated by [HungryPanda’s] solicitors full, unrestricted and effective read-only access to [Fantuan Australia’s] financial information (including by providing all necessary passwords and other login details).
(d)	The parties agreed to a regime with respect to the protection of confidential materials.
(e)	The Court also made orders for:
(i)	the filing of affidavits by Fantuan Australia in opposition to the HungryPanda Companies’ application, and the filing of points of claim and points of defence;
(ii)	particular discovery;
(iii)	mediation; and
(iv)	the further hearing of the HungryPanda Companies’ application on 25 March 2022.
79	On 15 March 2022, the HungryPanda Companies filed points of claim.  The points of claim stated, inter alia, at [26]: ‘Due to the nature of the proceeding, where information has been intentionally concealed from HungryPanda, it is possible that HungryPanda will seek to amend its points of claim to include additional causes of action.  It reserves its right to do so’.
80	On 23 March 2022, Fantuan Australia filed points of defence.
81	On 25 March 2022, Riordan J made orders, inter alia, for the filing of amended points of claim and points of defence.
82	On 20 April 2022, the HungryPanda Companies filed amended points of claim.
83	On 3 May 2022, Fantuan Australia filed a defence to the amended points of claim.
84	As I have said earlier in these Reasons, on 15 June 2022, Fantuan Australia filed its summons for a stay of the Victorian proceeding.
85	On 17 June 2022, the HungryPanda Companies issued subpoenas addressed to Xiaoyun (Sharon) Wang, Helin (Will) Wang, Yingmin (Evan) Li, Junquan (Peter) Liu and Yan (Linda) Liu (the subpoenaed persons).  At this time, none of the subpoenaed persons were parties to the Victorian proceeding.
86	On 28 June 2022, Croft J made orders, inter alia, for the filing of a statement of claim and a defence.  His Honour also ordered that Fantuan Australia file and serve any third party notices by 4:00pm on 26 July 2022.
87	On 7 July 2022, the subpoenaed persons applied to set aside the subpoenas.
88	On 22 July 2022, the HungryPanda Companies filed a statement of claim.  In summary, the primary causes of action are:
(a)	Fantuan Australia induced or procured breaches by the Sellers of cls 23.1(a)-(c) of the Asset Purchase Agreement:
(i)	The breaches by the Sellers include, inter alia, a breach of cl 23.1(a) as: the Sellers established and incorporated, and through P&L Group are indirectly interested in, Fantuan Australia, alternatively assisted or incited the Senior EASI Executives to do so; Fantuan Australia was established and incorporated for the purposes of carrying on or being engaged in a business that competes with the ‘EASI Business’ acquired by the HungryPanda Companies pursuant to the Asset Purchase Agreement and Fantuan Australia has, since its incorporation, prepared to carry on and be engaged in a business that competes with the EASI Business acquired by the HungryPanda Companies pursuant to the Asset Purchase Agreement and, since about 26 February 2022, actually done so.
(ii)	This claim is based upon an allegation, inter alia, that the breaches were induced or procured by Fantuan Australia by reason of, inter alia, that the breaches were committed on behalf of the Sellers through the actions of the ‘Senior EASI Executives’ (ie Junquan (Peter) Liu, Yan Lie, Xiaoyun (Sharon) Wang, Helin (Will) Wang, Yingmin (Evan) Li, Ye (Gary) Ge and Aijuan (Annie) Shi).
(b)	Fantuan Australia has used, and continues to use, ‘Confidential Information’ of the HungryPanda Companies in the operation of its business, without the HungryPanda Companies’ consent, to formulate and implement a business plan for its operations in Australia, and to conduct its business:
(i)	The ‘Confidential Information’ is alleged to be constituted by database information transferred to the HungryPanda Companies under the Asset Purchase Agreement.  This includes information about merchants, delivery drivers, employee and contractors of the EASI Business.
(ii)	It can be inferred that the Senior EASI Executives provided or facilitated access to the Confidential Information to Fantuan Australia.
(c)	Fantuan Australia assisted and/or participated in breaches of fiduciary duty by the ‘Assumed Executives’ (ie Xiaoyun (Sharon) Wang, Helin (Will) Wang, Yingmin (Evan) Li and Aijuan (Annie) Shi):
(i)	The breaches by the ‘Assumed Executives’ are alleged to be: putting themselves in a position of conflict as between the interests of the HungryPanda Companies, on the one hand, and the interests of themselves and/or Fantuan Canada, on the other hand (including by reason of their role in establishing an interest in Fantuan Australia which entity was in direct competition with the HungryPanda Companies); improperly using their position to make a profit for themselves and/or Fantuan Canada that was not disclosed to or authorised by the HungryPanda Companies, and to cause detriment to the HungryPanda Companies; improperly using information and knowledge gained or derived from their respective capacities as fiduciaries of the HungryPanda Companies.
(ii)	It is also alleged that the breaches of fiduciary duty were part of a dishonest and fraudulent scheme by EASI Global and Fantuan Canada, and also Fantuan Australia (after incorporation), in which the Assumed Executives participated, the overall effect of which was to enhance the business or interests of EASI Global, Fantuan Canada and Fantuan Australia and the interests of the Assumed Executives, and damage the HungryPanda Companies’ interests.
(iii)	Fantuan Australia assisted and/or participated in the breaches of fiduciary duty by the ‘Assumed Executives’: by negotiating and entering into the Joint Venture Agreement to give effect to the dishonest and fraudulent scheme and as the corporate vehicle or alter ego of the Assumed Executives, alternatively EASI Global and Fantuan Canada, who used it to secure the profits of their breach of duty.
(iv)	Fantuan Australia had knowledge of the alleged breaches of fiduciary duty because, inter alia, the knowledge of the Senior EASI Executives is the knowledge of Fantuan Australia.
89	The HungryPanda Companies seek the following substantive relief in the statement of claim:
AND THE PLAINTIFFS CLAIM
A.	A permanent injunction:
a.	restraining Fantuan Australia, whether directly or indirectly, and whether by itself or by its officers, employees, agents or contractors from:
i.	using the Confidential Information or any of it;
ii.	until 14 December 2023, or such other period as the Court determines, carrying on or being engaged in or otherwise interested in, in each case either directly or indirectly, any business that competes with the business acquired by HungryPanda pursuant to the Asset Purchase Agreement (or any part thereof) in Australia;
iii.	until 14 December 2024, or such other period as the Court determines, soliciting the custom of any person who is, or who was at any time between 15 October 2019 to 15 October 2021, a customer or client of any of any member of the Sellers’ Group (as defined in the Asset Purchase Agreement) or of the JV Entities or Franchisees listed in Schedule 4 of the Asset Purchase Agreement;
iv.	until 14 December 2024, or such other period as the Court determines, soliciting or enticing away any Assumed Employee (as defined in the Asset Purchase Agreement) or any person who was employed by any member of the Sellers’ Group (as defined in the Asset Purchase Agreement) at any time during the 12 months to 15 October 2021, or employing any such person;
v.	assisting or inciting any other person to do any of the matters described in sub-paragraphs i. to iii. above; and
b.	requiring Fantuan Australia to deliver up and/or destroy all of the Confidential Information (and any data derived therefrom) in its possession, custody or control; and
B.	An account of profits from Fantuan Australia to HungryPanda for the whole of the profits that Fantuan Australia has derived by reason of its unauthorised use of the Confidential Information and accessorial liability.
C.	Alternatively to B, equitable compensation.
D.	Damages for inducing the Sellers to breach the Asset Purchase Agreement.
90	Mr Strahorn gave evidence:
23.	I am informed by Karen Zhang, Legal Counsel for HungryPanda, and believe that:
(a)	HungryPanda has suffered, and continues to suffer, loss as a result of Fantuan Australia's actions; and
(b)	this loss has increased, and will continue to increase, daily if an expedited resolution of HungryPanda's claims against Fantuan Australia is not achieved.
24.	I am informed by Ms Zhang and believe that HungryPanda has estimated the financial impact of Fantuan Australia's conduct in, amongst other things, carrying on a business competing with HungryPanda using HungryPanda's confidential information and employees:
(a)	HungryPanda has carried out a comparative analysis of order volumes of the EASI business and Fantuan Australia's business. This analysis shows that:
i.	Before HungryPanda purchased the EASI business, the order volume on the EASI platform in 2021 was approximately 11 ,086 orders per day. The purchase price for the EASI business was based upon these order volumes, amongst other things. The order volume on the EASI platform is currently approximately 6,656 orders per day. This represents an approximate decrease of 4.430 orders per day from the 2021 order volumes. This decrease equates to a revenue loss for HungryPanda of approximately AUD 57,157 per day (based on the average revenue per order in April 2022 of AUD 12.98).
ii.	HungryPanda estimates that Fantuan Australia's daily orders are approximately 3,000 orders per day, based on the number of active merchants on the Fantuan platform and the number of customer reviews for each merchant. HungryPanda believes that these order volumes have been attained by using HungryPanda's confidential information to achieve a "springboard" advantage in the market and orders on the Fantuan platform would have been orders made on the EASI platform but for Fantuan Australia's wrongdoing. On this basis, HungryPanda estimates that Fantuan's order volumes translate to a revenue loss for HungryPanda of approximately AUD 38,940 per day.
(b)	HungryPanda has incurred other additional costs as a result of Fantuan Australia's actions, including increased marketing costs. HungryPanda estimates those costs to be approximately AUD 6,423 per day.
91	Ms Sun also gave evidence:
88.	The events that have occurred since the Acquisition, including the launch of Fantuan Australia, have caused and are continuing to cause HungryPanda significant damage to its reputation with its investors.
89.	Investors are critical to expansion and the ability of HungryPanda to compete. Acquiring market share by attracting new customers or enticing existing customers to become “Frequent Users” of HungryPanda in preference to other platforms, is a costly exercise. HungryPanda expends significant funds in advertising, incentives and other initiatives to establish ordering from merchants through the platform as a habit for consumers. These expansion activities are supported by fundraising activities and investments.
90.	Investors are gained by the giving of presentations as to HungryPanda’s business generally and specific proposals. It can take up to 50 presentations to investors in order to obtain a single committed investor.
91.	HungryPanda undertook fundraising activities towards the end of 2021 to facilitate its acquisition the EASI Group. During those fundraising activities, representatives of HungryPanda said that it anticipated that it would significantly increase its market share in Australia by absorbing EASI’s market share. HungryPanda successfully obtained investments in excess of $55 million, and those funds were primarily expended on the Acquisition. I believe that those who invested in HungryPanda may consider that HungryPanda AU has failed to realise the proposed expansion of its market share in Australia, and that Fantuan Australia is being permitted to establish its business and obtain revenue using the assets of the EASI business that were acquired by HungryPanda AU. If Fantuan Australia were to continue to operate, using confidential information and other assets acquired by HungryPanda AU as part of the Acquisition, it would be difficult for HungryPanda AU to repair its reputation and attract future investors.
92	On 26 July 2022, Fantuan Australia filed a defence.  In summary, the primary allegations are that Fantuan Australia:
(a)	denies the substantive allegations of wrongdoing against it;
(b)	makes a number of admissions concerning the alleged Sale and Joint Venture documents;
(c)	alleges that the condition precedent in cl 6(a) of the Letter of Intent was not satisfied and the Letter of Intent and Side Letter Agreement were thereby rendered null and void. It further denies that there was a sale or transfer of assets owned by EASI Global to any Fantuan entity. It does not make any such allegations concerning the Joint Venture Agreement;
(d)	admits the incorporation of PL Group Holdings Pty Ltd, AU Fan Tuan Pty Ltd and Fantuan Australia;
(e)	admits that it activated its platform for online takeaway food ordering services on 26 February 2022 and announced its official launch on 1 March 2022;
(f)	makes admissions concerning its entry into an agreement for IT services;
(g)	denies that the Senior EASI Executives have has since mid-January 2022 onwards provided services to Fantuan Australia as an employee or contractor in connection with the business and says further that none of the Senior EASI Executives are employees nor have they ever been employees of Fantuan Australia and that none of the Senior EASI Executives are contractors retained by Fantuan Australia;
(h)	alleges that, by reason of the Asset Purchase Agreement, the HungryPanda Companies:
(i)	‘may’ have contravened section 50 of the Competition and Consumer Act 2010 (Cth);
(ii)	as a consequence, the HungryPanda Companies ‘may’, among other things, be ordered to divest itself of those assets pursuant to Part VI of the Competition and Consumer Act 2010 (Cth); and
(iii)	by reason of these matters, the HungryPanda Companies’ damages (if any) do not extend to loss of profits in relation to a business which it is not lawfully entitled to retain;
(i)	makes numerous complaints about allegations in the statement of claim being embarrassing, including not supported by particulars.
93	On 26 July 2022, Daly AsJ delivered her reasons on the application by the subpoenaed parties to set aside the subpoenas.  Her Honour dismissed the application.  This is now the subject of an appeal.  This appeal is presently stayed.
94	On 29 July 2022, Fantuan Australia filed a third party proceeding.  The addresses for the Sellers (ie the first to fourth defendants) are the same as those stated in the Claim Form in the High Court proceeding, save for the third third party, for whom a different address in Docklands, Victoria, is provided.  The third and fourth third parties’ addresses are in Victoria.  This is also consistent with the appearances filed by those parties in the Victorian proceeding.  The addresses of the fifth to eight and tenth third parties are also in Victoria.
95	In summary, the primary allegations are:
(a)	If the Court finds Fantuan Australia is liable to the HungryPanda Companies (which it denies) then it makes claims against the Third Parties and for that purpose only.
(b)	Fantuan Australia refers to and repeats against each of the Sellers and the Senior EASI Executives (ie the Third Parties) the allegations in paragraphs [30]-[45] and [56]-[60] of the statement of claim in the Victorian proceeding and paragraphs [112]-[134] of the particulars of claim in the High Court proceeding and then alleges:
(i)	the Sellers have breached the Asset Purchase Agreement; and/or
(ii)	the Senior EASI Executives induced or procured the Sellers (or any of them) to breach the Asset Purchase Agreement, as alleged; and, in the premises;
(iii)	the HungryPanda Companies have suffered loss as a result of the Sellers’ and/or the Senior EASI Executives’ conduct set out therein.
(c)	Fantuan Australia refers to and repeats against the Senior EASI Executives the allegations in paragraphs [61]-[70] of the statement of claim in the Victorian proceeding and paragraphs [101]-[107] of the particulars of claim in the High Court proceeding and then alleges:
(i)	the Senior EASI Executives have breached the confidence of and/or misused confidential information owed by the HungryPanda Companies and/or ‘EASI’; and
(ii)	the HungryPanda Companies have suffered loss as a result of the Senior EASI Executives’ conduct (or some of them).
(d)	Fantuan Australia refers to and repeats as against each of Xiaoyun (Sharon) Wang, Helin (Will) Wang, Yingmin (Evan) Li and Aijuan (Annie) Shi the allegations in paragraphs [74]-[77] of the statement of claim in the Victorian proceeding and then alleges:
(i)	Xiaoyun (Sharon) Wang, Helin (Will) Wang, Yingmin (Evan) Li and Aijuan (Annie) Shi (or any one or more of them) have breached their fiduciary duties owed to HungryPanda AU Pty Ltd;
(ii)	the HungryPanda Companies have suffered loss as a result of Xiaoyun (Sharon) Wang’s, Helin (Will) Wang’s, Yingmin (Evan) Li’s and Aijuan (Annie) Shi’s conduct (or the conduct of any one or more of them).
(e)	Fantuan Australia seeks damages, alternatively contribution under ss 23B and 24 of the Wrongs Act 1958 (Vic), alternatively equitable compensation for any amounts which Fantuan Australia is ordered to pay to the HungryPanda Companies.
96	As I have said earlier in these Reasons, on 26 and 29 August 2022, the Other Executives Third Parties and the Sellers and Executives Third Parties, respectively, filed their summons for a stay.
Federal Court proceedings
97	On 28 February 2022, HungryPanda AU Pty Ltd commenced the Federal Court proceeding against:
(a)	QINN International Group, who were alleged to have provided staff to HungryPanda AU Pty Ltd;
(b)	a number contractors and employees of HungryPanda AU Pty Ltd. This included Xiaoyun (Sharon) Wang  and Aijuan (Annie) Shi. These persons are now third parties in the Victorian proceeding.
98	On 29 March 2022, Lee J ordered, upon his own motion, that the matter be transferred to this Court pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).  In his Honour’s reasons for judgment, he said, inter alia:
1 	This matter has come to me in my capacity as the Commercial and Corporations Duty Judge. The applicant seeks orders that the respondents deliver up to the Court, by 30 March 2022, various documents said to have been obtained by the respondents in the course of, or incidental to, their employment or contractual relationship with the applicant, together with a suite of additional orders. More particularly, a further application is made for an injunction restraining various respondents from performing work for what are said to be competing businesses until determination of the substantive matter.
2 	It is unnecessary to canvass the issues in the case in any detail. It suffices to note that the applicant operates a food delivery “app service” called “HungryPanda”, which operates in a niche market focusing on Asian restaurants. The first respondent, QINN International Group Pty Ltd (QINN), provided staff to HungryPanda and is said to have been otherwise integrated into HungryPanda’s systems. A services contract between QINN and HungryPanda dated 1 December 2022 is said to provide as follows:
(a)	at cl 6.1, an obligation to ensure that any information, including client/consumer data, be kept confidential by QINN and not disclosed to any third party;
(b)	at cl 6.2, a warranty that QINN would ensure that the workers it supplied would not disclose any such confidential information to a third party without written approval;
(c)	at cl 6.3, an obligation to take effective steps as fast as possible to “prevent data proliferation”; and
(d)	at cl 6.7, that these obligations would survive termination.
3	HungryPanda had earlier purchased its business from a company known as “EASI”, and as part of that acquisition, many of EASI’s staff “transferred” to HungryPanda’s operation (as either employees or contractors). This included the second to eleventh respondents, of which the second to sixth respondents were engaged as contractors, and the seventh to eleventh respondents were employed. It is alleged that each of the employees and contractors had access to, and worked closely with, important confidential information owned by HungryPanda, being its data on merchants (including contract details, commission structures, menus and price points), much of which is said to be not publicly available. The second to eleventh respondents are said to have signed identical non-disclosure agreements that provided relevantly as follows:
(a)	at cl 2, a definition of “Confidential Information” which encompassed information relating to “the business, customers, clients or suppliers”, “product information” and information derived from the “Confidential Information”;
(b)	at cl 3, obligations to treat such “Confidential Information” as confidential and not disclose it without the consent of HungryPanda; and
(c)	at cl 4, obligations to retain the “Confidential Information” securely.
4	Further, the employment contracts of the seventh to eleventh respondents are said to include additional confidentiality obligations (cl 12); an obligation to return confidential information on the cessation of employment (cl 13); and a restraint of trade clause preventing the employee from working for competitor businesses, including those engaged in “online food ordering and delivery services” (cl 11).
5	In the originating application, the applications seek relief permanently restraining the respondents from using, disclosing, or divulging any confidential information pursuant to the relevant agreements, orders enforcing the restraint of trade clauses in the respective employment contracts, and declaratory relief, pecuniary penalties, and compensation under Schedule 2 of the Competition and Consumer Act 2010 (Cth).
6	Proceedings are ongoing between HungryPanda and EASI in the High Court of Justice in England. More relevantly for present purposes, HungryPanda has commenced proceedings in the Supreme Court of Victoria against Fantuan Australia Pty Ltd (Fantuan).
7	The evidence deals with what are said to be controversial circumstances surrounding Fantuan’s emergence as a competitor in the Australian market. In short, it is alleged that the operations of Fantuan involved a deliberate misuse of confidential information and resources properly owned by HungryPanda. Evidence sought to be adduced on this application was directed to the proposition that the sixth to eleventh respondents in particular, were directly and heavily involved in both the establishment of Fantuan and the recruitment of existing HungryPanda staff to its operations. It is unnecessary, for present purposes, for me to form a view about the strength of these allegations.
99	The Federal proceeding was then transferred to this Court.
100	On 8 June 2022, Croft J ordered, by consent, that the proceeding be discontinued.  In ‘Other Matters’ of the orders his Honour recorded the following:
A.	The Court notes that the Plaintiff, by their Counsel, undertakes not to bring any another proceeding in respect of the same subject matter in any jurisdiction against the First to Sixth Defendants and the Eighth to Tenth Defendants, save for any alleged breach of the undertaking in (C), and that this is a condition of the discontinuance in this proceeding (‘the Plaintiff’s undertaking’).
B.	The Court notes that the Plaintiff seeks to join the Seventh Defendant and the Eleventh Defendant to proceedings in the UK High Court of Justice (CL-2022- 000069).
 C.	The Court notes that the First to Sixth Defendants and the Eighth to Tenth Defendant, by their Counsel, undertake that:
Without any admission of liability, until further order of the Court, they shall not use any information in their possession, custody or control, comprising the Plaintiff’s merchant lists, or any information derived from such lists.
D.	For the avoidance of doubt, subject to compliance with the above undertaking, each of the First to Sixth Defendants and the Eight to Tenth Defendants are not precluded from being employed or engaged by any business involved in on-line food ordering or delivery services.
E.	This Order is authenticated by a Judge of the Court pursuant to r 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
101	The seventh and eleventh defendants did not give, and were not the subject of, the various undertakings.  The seventh defendant is Aijuan (Annie) Shi and the eleventh defendant is Xiaoyun (Sharon) Wang.  They are Third Parties in the Victorian proceeding.  Both of these persons have also now received a ‘letter before action’ from the HungryPanda Companies’ solicitors in relation to the High Court proceeding.
102	On 8 June 2022, the proceeding was discontinued.
Stay applications
103	The solicitors for Fantuan Australia and the HungryPanda Companies exchanged correspondence on the issue of whether the Victorian proceeding should be stayed.
APPLICABLE PRINCIPLES
104	The applicable principles upon an application for a temporary stay are well established and were not in dispute between the parties.
105	Section 29(2) of the Supreme Court Act 1986 (Vic) (‘Supreme Court Act’) relevantly provides that every court, subject to the provisions of the Supreme Court Act or any other Act, must exercise its discretion in every proceeding before it as to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of proceedings concerning any of those matters is avoided.
106	Section 30 of the Supreme Court Act provides:
Nothing in this Act affects the power of the Court to stay a proceeding in the Court, either of its own motion or on the application of any person, whether or not a party.
107	Section 30 recognises that the Court has power to grant a stay of proceedings, both permanent and temporary.  The Court has power to control its own proceedings.
108	The Court must, in determining whether to exercise its power to temporarily stay a proceeding, give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the ‘Rules’) to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute and, in making any order, the Court shall further the overarching purpose by having regard to the objects in s 9(1) of the Civil Procedure Act.
109	In Sterling Pharmaceuticals Pty Ltd v Boots Co (Aust) Pty Ltd (‘Sterling’) Lockhart J said:
The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first…
….
In my opinion relevant considerations to be taken into account in the present case include the following:
•	Which proceeding was commenced first.
•	Whether the termination of one proceeding is likely to have a material effect on the other.
•	The public interest.
•	The undesirability of two courts competing to see which of them determines common facts first.
•	Consideration of circumstances relating to witnesses.
•	Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
•	The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
•	How far advanced the proceedings are in each court.
•	The law should strive against permitting multiplicity of proceedings in relation to similar issues.
•	Generally balancing the advantages and disadvantages to each party.
110	This list of factors is not exhaustive.  Each case must be decided upon its own facts and circumstances.  As observed by Hargrave J (as he then was) in UDP Holdings Pty Ltd (rec and mgr appted) v Ironshore Corporate Capital Ltd & Anor (‘UDP Holdings’):
The factors mentioned are, however, a useful guide to the kinds of circumstances which will be relevant in considering such applications.
111	His Honour also said that ‘where the relevant factors in the particular case, including the interests of justice, are evenly balanced the discretion should be exercised against granting a stay’.
112	In Sterling, the applicant was an Australian subsidiary of Sterling US and the respondent was a subsidiary of Boots UK.  The applicant in the proceeding in the Federal Court alleged breaches of the Trade Practices Act 1974 (Cth) (‘Trade Practices Act’) arising from statements made on the packaging of ‘Nurofen’.  At the time the proceeding was commenced, there were already proceedings in the High Court of New Zealand in which the applicant was the New Zealand subsidiary of Sterling US and the respondent was the New Zealand subsidiary of Boots UK.  The New Zealand proceeding was brought under the Fair Trading Act 1986 (NZ), relying upon sections similar to the Trade Practices Act and based on facts similar to those in the Australian case.
113	Lockhart J granted a stay of the Australian proceeding having found that ‘in all of the circumstances, having balanced the advantages and disadvantages to each party in the Australian proceeding, I am satisfied that the interests of justice are best served by acceding to the motion of Boots Australia’.  Lockhart J:
(a)	found that the resolution of the issues in New Zealand and Australia would not give rise to an issue estoppel in the other country because the parties are different, but said it would be ‘quite unreal to regard companies from the same international group as if they were totally independent of each other such that the success or reversal of one of them in proceedings in one country would not materially, as a practical matter, affect the conduct of their associates in another country where the proceedings involve similar issues.’;
(b)	found the issues in the two sets of proceedings are not precisely the same. His Honour found that there was a substantial identity of issues in the two proceedings although the issues in the New Zealand proceeding were wider and the resolution of the issues in the New Zealand proceeding should determine the result of those issues in the Australian proceeding.  Lockhart J said: ‘…whether the parties to the Australian proceedings do or do not agree to accept the result of the New Zealand proceeding, this Court will be able to control the future conduct of the Australian proceeding by giving directions with the benefit of the findings in New Zealand which may substantially reduce the scope of the issues in the Australian proceeding, in particular, the medical issues’;
(c)	found that if both proceedings continued there was likely to be a substantial measure of duplication in the preparation for and conduct of the final hearing of the two proceedings in respect of the same or substantially the same issues. His Honour found that this would be burdensome to the parties and their expert and lay witnesses;
(d)	said ‘… it cannot be right that necessary calls are made upon the resources of this Court or the High Court of New Zealand in relation to the final hearing of the issues substantially common to both proceedings’;
(e)	found that the Australian and New Zealand proceedings were public interest proceedings rather than proceedings to protect proprietary rights of corporations;
(f)	said ‘The Sterling interests chose to commence the New Zealand proceeding first…it took more than two years before that complaint [ie complaint of conduct breaching s 52 of the Trade Practices Act] assumed juridical form in this country’;
(g)	found that the Australian and New Zealand proceedings raise very similar issues of construction of, inter alia, packaging and leaflets;
(h)	said  ‘I am alive to the fact that a party who has properly invoked the jurisdiction of an Australian court is prima facie entitled to have his case heard and determined by that court notwithstanding that he institutes proceedings in a foreign court. I have approached the case on this prima facie assumption’.
114	In Bella Products Pty Ltd v Creative Designs International Ltd (‘Bella’) Finkelstein J referred to the list of factors set out by Lockhart J in Sterling and said:
The following propositions may be drawn from this list. First, for obvious reasons it is undesirable that two courts should determine the same dispute. Second, practical considerations based on common sense and fairness should dictate which action should proceed first.
115	All parties referred, in their written submissions, to the factors identified by Lockhart J in Sterling. In Tucker v State of Victoria, the Court of Appeal recently set out the principles relevant to the grant of a temporary stay, endorsing the principles set out in Sterling and in Bella.
116	In Michael Wilson & Partners v Emmott Brereton JA (with whom Leeming JA and Emmett AJA agreed) said: 
…The notion of a “case management stay” is well-established. It does not involve any conclusion as to jurisdiction, or as to appropriate forum, but is a technique for the management of proceedings in the context of lis alibi pendens. The applicable principles were expounded by Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Aust) Pty Ltd, to which reference was made by the High Court in Henry v Henry, as follows:
“Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow the factual issues to be determined in the other jurisdiction [See, eg, Sterling Pharmaceuticals Pty Ltd v Boots Co (Australia) Pty Ltd (1992) 34 FCR 287]. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy.”
…
On an application for a temporary stay, the question is not whether the proceedings are vexatious and oppressive. The power of the Court to grant a temporary stay of this kind is an aspect of its general power to control its own proceedings, and is exercisable where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first. Its exercise is informed by the general principle that it is undesirable that two courts should determine the same dispute, and practical considerations based on common-sense and fairness guide which action should proceed first.
117	The HungryPanda Companies, at the commencement of their oral submissions, also relied upon the following observations of President Bell (as he then was) in Australian Health & Nutrition Association v Hive Marketing Group Pty Ltd (‘Australian Health & Nutrition Association’):
The discretion is ultimately to be exercised by reference to the facts of the particular case and a careful consideration, in light of those facts, of the nature and complexity of the matters in issue, the degree of risk of inconsistent decisions and the weight to be attributed to that possibility as against the weight to be attributed to the consequences of one party losing the real benefit of an exclusive jurisdiction clause for which it bargained and secured as part of the overall commercial arrangement between the parties.
How that balance is struck will often be a delicate and difficult matter as both of the broad policy considerations referred to in [81] above are powerful. Those considerations are not such, however, that one will always or necessarily trump the other. Neither is determinative: Global Partners at [84]. Everything will depend upon the facts and circumstances of the particular case. I have already observed that the facts and nature of the dispute in the present case are far less complex than those in Donohue v Armco. Further, as Beatson LJ observed in Trust Risk Group at [49]:
“There may be a difference between a complex series of agreements about a single transaction or enabling particular types of transactions, and the situation in which there is a single contract creating a relationship which is followed by a later contract embodying a subsequent agreement about the relationship.”
118	In Australian Health & Nutrition Association the primary judge, however, had exercised a discretion to dismiss proceedings between the first appellant (ie the first plaintiff) and the second respondent (ie the second defendant) on the basis of a foreign jurisdiction clause.  
SUBMISSIONS
119	Fantuan Australia’s key submissions were:
(a)	The Victorian proceeding should be temporarily stayed.
(b)	The HungryPanda Companies chose to commence the High Court proceeding first even though it believed, at that time, that Fantuan Australia was using the HungryPanda Companies’ goodwill and ex-employees to accelerate the establishment of its business in Australia.
(c)	The facts and issues in the Victorian proceeding and the High Court proceeding are intertwined. There is an obvious risk of inconsistent rulings and findings being made in the Victorian and High Court proceedings in relation to the same facts and issues. It is ‘almost inconceivable’ that the Court should embark upon the determination of claims of inducing breach of contract when another court is seized of whether there was a breach and claims of accessorial liability when another court is seized of whether there is direct liability.
(d)	The HungryPanda Companies did not join the Sellers or the Senior EASI Executives as defendants to the Victorian proceeding as they knew that this would create difficulty by reason of parallel proceedings against the same entities and persons in the High Court proceeding.
(e)	The High Court proceeding has the potential to resolve, or significantly reduce, the issues for determination in the Victorian proceeding. For example, if the High Court of England and Wales determines that the Sellers did not breach the Asset Purchase Agreement then it follows that Fantuan Australia could not have induced such a breach. Fantuan Australia submitted that, as a result, ‘one of the two primary causes of action may fall away.’
(f)	Fantuan Australia refers to and repeats as against the third parties, allegations, inter alia, from the particulars of claim made by the HungryPanda Companies in the High Court proceeding. In the event that the HungryPanda Companies succeed on establishing those matters in the High Court proceeding then a res judicata would arise between those parties and Fantuan Australia would tender the High Court judgment at the trial of the Victorian proceeding. It submitted that if the Victorian proceeding is not stayed and is determined first then it would lose that opportunity.
(g)	The applicable law of the Asset Purchase Agreement is English law.
(h)	The High Court proceeding is more advanced than the Victorian proceeding and is the larger and more substantial proceeding.
(i)	It is not determinative that Fantuan Australia is not a party to the High Court proceeding or that the High Court ‘might not order such relief [against Fantuan Australia]’.
(j)	The HungryPanda Companies intend to join persons and entities in the ‘Fantuan Group’, albeit not Fantuan Australia, to the High Court proceeding.
(k)	The proper invoking of the Court’s jurisdiction by the HungryPanda Companies does not prevent a temporary stay.
(l)	There is likely to be a significant commonality of witnesses between the Victorian proceeding and the High Court proceeding.
(m)	The HungryPanda Companies’ financial remedies in the Victorian proceeding will ‘avail’ them and are also effectively sought from other parties in the High Court proceedings.
(n)	In the event that the Court does not order a stay of the Victorian proceeding, the third party proceeding should not be stayed:
(i)	Fantuan Australia did not cause the present inconvenience and additional expense of the third party claims. The first and only opportunity for Fantuan Australia to raise the third party claim arose after it filed its defence. Fantuan Australia relied upon r 11.05 of the Rules and submitted that it was only able to file a third party notice after it had filed a defence.
(ii)	Having regard to the way in which the HungryPanda Companies’ claims are framed against Fantuan Australia (relying upon the conduct of the third parties which is then said to be attributable to Fantuan Australia) a third party notice of the kind filed was highly predicable. It is a consequence not of any unreasonable step taken by Fantuan Australia, but of the way in which the HungryPanda Companies chose to put their case.
(iii)	Not only would staying the third party claims create the possibility of inconsistent determinations on the same facts in two separate proceedings (ie the HungryPanda Companies’ proceeding against Fantuan Australia and Fantuan Australia’s proceeding against the Third Parties), there is also a genuine risk of inconsistent determinations of fact by the same judge.
(iv)	Fantuan Australia described this outcome as the ‘worst of all worlds for the conduct of this proceeding in particular’.
120	The Sellers and Executives Third Parties’ key submissions were:
(a)	The third party proceeding should be temporarily stayed.
(b)	The continued prosecution of the third party claims is an abuse of the Court’s processes. By adopting some of the HungryPanda Companies’ claims in the High Court proceeding in the third party statement of claim they have brought about the abuse of this Court’s processes. As a result, Fantuan Australia has become ‘an effective proxy or in many ways a privy’ for the HungryPanda Companies in the High Court proceeding.
(c)	The continued prosecution of the third party claims will give rise to the likely wastage of costs and expenses incurred in the High Court proceeding.
(d)	A stay of the third party proceeding would prevent the Sellers and Executives Third Parties from being vexed twice in respect of the same claims.
(e)	It would reduce the risk of inconsistent findings giving rise to re judicata and preclusion disputes.
(f)	A stay of the third party proceeding would enable the HungryPanda Companies to pursue their claims against Fantuan Australia.
(g)	Given the substratum of facts, the risk of inconsistent findings would not disappear in this scenario.
(h)	It would not prevent Fantuan Australia advancing the third party claim after the final determination of the High Court proceeding as no Anshun estoppel would arise against Fantuan Australia in respect of the third party claims. The potential difficulty and likely expenses associated with this should not be given great weight as Fantuan Australia seeks to prove these claims by tendering the judgment in the High Court (which it cannot do) and has not otherwise indicated that it seeks to prove the alleged wrongdoing in some other way. In any event, there are means by which Fantuan Australia could prove these matters by taking a number of steps.
(i)	It would make it difficult for the defendants in the High Court proceeding to contend, following a final determination of the Victorian proceeding, that the continued prosecution of the High Court proceeding is vexatious and abusive (on different grounds, including the rule in Henderson v Henderson). It would prevent the defendants in the High Court proceeding from arguing that the High Court should disregard the judgment in the Victorian proceeding because it emanated from an abusive proceeding.
(j)	The High Court proceeding was commenced on 16 February 2022 well before the Victorian proceeding and the parties in the High Court proceeding have incurred considerable costs. Furthermore, the third party proceeding was not commenced until 29 July 2022. In the period from 16 February 2022 to 29 July 2022, the Sellers incurred substantial costs in relation to the High Court proceeding.
(k)	It would prevent the third party proceeding from undermining the effect of cl 41 of the Asset Purchase Agreement which gives the Sellers and Executives Third Parties a right to be sued in England.
(l)	If the Victorian proceeding is stayed, and the HungryPanda Companies do not join Fantuan Australia as a defendant in the High Court proceeding, then they will not be able to pursue their claims.
(m)	If a stay of the third party proceeding causes inconvenience and additional expense for Fantuan Australian then that state of affairs has arisen from its belated allegations made in the Victorian proceedings (and the knowledge that this step would create the very problems about which it now complains in order to support its stay application of the Victorian proceeding).
(n)	It would promote the overarching purpose for which s 7 of the Civil Procedure Act provides.
(o)	The Sellers and Executives Third Parties accepted that Fantuan Australia would not have the benefit of res judicata estoppels and issue estoppels arising from the determination of the claims of the HungryPanda Companies against Fantuan Australia in the Victorian proceeding.
(p)	The third party proceedings will not avoid a multiplicity of proceedings or lead to a finality of litigation.
(q)	If the third party proceeding is not stayed:
(i)	In the event that the Sellers and Executives Third Parties seek particulars of paragraph 19(b) of the third party statement of claim it is likely that this request will be re-directed to the HungryPanda Companies and this would lead to the absurd and wasteful situation in which the parties to the High Court proceeding would be conducting elements of that proceeding in the Victoria proceeding.
(ii)	Fantuan Australia’s intention to tender the judgment of the High Court to prove the matters in paragraphs 19(b) and 21(b) is misplaced given s 91 of the Evidence Act 2008 (Vic). If Fantuan Australia does not plan to adduce any evidence other than a judgment of the High Court then its claims would not succeed. In the meantime, the Sellers and Executives Third Parties would still have to deal with the allegations.  The HungryPanda Companies could also not ignore them. 
(iii)	In the event that the High Court proceeding is not determined first the third party proceeding will cause a multiplicity of proceedings, lack of finality in litigation, and actual and potential problems and burdens to which the parties to the English proceedings will be exposed. The Sellers and Executives Third Parties submitted that, in these circumstances, ‘[a]ll sorts of weird and wonderful arguments could arise’ [eg applications based upon Anshun estoppel in the High Court proceeding, referred to in English law as the rule in Henderson v Henderson]. They also submitted that ‘[i]t’s the potentiality for further controversy generated by the alleged preclusive effects of the Victorian judgment’. They also submitted: ‘…Your Honour doesn't have to deal with it.  Your Honour can't.  It's not Your Honour's job.  It's Mr Justice Robin Knowles or Mr Justice Butcher [ie in the High Court of Justice] or someone else who'll have to deal with that but Your Honour needs to know that it's a serious risk and the potentiality is far from farfetched…’. In the event that the High Court proceeding was determined first then, inter alia, the Sellers and Executives Third Parties may tender the judgment of the High Court in the Victorian proceeding to support a preclusion estoppel plea or an abuse plea. 
121	The Other Executives Third Parties’ key submissions were:
(a)	The Victorian proceeding should be temporarily stayed.
(b)	The present situation has been created by the HungryPanda Companies and Fantuan Australia. The HungryPanda Companies made forensic decisions to commence the High Court proceeding, the Victorian proceeding and the Federal Court proceeding. Fantuan Australia made the forensic decision not to seek a stay or a joinder of the third parties until July 2022. 
(c)	The Other Executives Third Parties accepted that the HungryPanda Companies came quickly to this Court and the delay caused by a temporary stay is ‘one of the real countervailing considerations’, in circumstances in which the Court did not determine the urgent application for injunctive relief on the basis that there would a speedy trial. No-one, however, brought to the Court’s attention the important considerations concerning jurisdiction and a stay. There are some advantages for the HungryPanda Companies in continuing the Victorian proceeding including a speedier trial and possibly speedier relief.
(d)	Clause 41 of the Asset Purchase Agreement is also a factor of some significance on this application and weighs heavily in favour of the grant of a stay of the Victorian proceeding as:
(i)	The clause, properly construed, is an exclusive jurisdiction clause intended to facilitate, in the one forum, the resolution of all disputes between the parties and non-parties arising out of the Asset Purchase Agreement.
(ii)	The Victorian proceeding, including the third party proceeding, is caught by the broad ambit of the Asset Purchase Agreement.
(iii)	The HungryPanda Companies should be held to their contractual obligations.
(iv)	A temporary stay of the Victorian proceeding would achieve the express purpose of the exclusive jurisdiction clause
(v)	Clause 35 of the Asset Purchase Agreement does not prevent the Other Executives Third Parties from invoking the Court’s case management powers and pointing to cl 41 as an important factor.
(e)	A temporary stay of the Victorian proceeding would achieve the express purpose of the exclusive jurisdiction clause to avoid a multiplicity of proceedings, to have the UK courts determine the entire controversy and avoid the prospect of inconsistent findings. In temporarily staying the proceeding, the Court does no more than give effect to a contractual promise to which the HungryPanda Companies are bound and conceded themselves to be bound.
(f)	A temporary stay avoids the inconvenience and embarrassment of having multiple courts try the same or similar issues. There is a substantial overlap between the allegations in the Victorian proceeding and the High Court proceeding. Further, Fantuan Australia has adopted allegations in the third party statement of claim from the HungryPanda Companies’ claims in the High Court proceeding and is thereby effectively acting as proxy in Victoria for the HungryPanda Companies in the High Court proceeding.
(g)	It is unclear what obstacles the HungryPanda Companies face in pursuing Fantuan Australia in the High Court proceeding and enforcing any remedy in Australia. During the hearing, the Other Executives Third Parties accepted that there would be difficulties in enforcing any injunction that is granted by the High Court.
(h)	Once the High Court proceeding is determined, the ‘practical’ and remaining scope of the Victorian proceeding is likely to be substantially reduced based upon the liability findings made by the High Court.
(i)	A temporary stay will mean that the third parties are not vexed twice by the costs and burden of two proceedings.
(j)	The HungryPanda Companies could join Fantuan Australia to the High Court proceeding.
(k)	A temporary stay preserves the HungryPanda Companies’ rights to seek the determination of specific issues against Fantuan Australia including consequential remedies following determination of all issues in the High Court. It also preserves the right of Fantuan Australia to seek contribution or other remedy against the third parties.
(l)	The Other Executives Third Parties referred to the submissions of Fantuan Australia set out in its submissions at [12]-[23]. As a result of the third party proceedings, it submitted that there is now a greater duplication of issues, parties and witnesses with an increased risk of inconsistent findings.
(m)	Alternatively, the Other Executives Third Parties submitted that the third party proceeding should be temporarily stayed:
(i)	This would protect them from defending two proceedings. The HungryPanda Companies have indicated their intention to join them in the High Court proceeding.
(ii)	They accepted that, if the third party proceeding was stayed, the Third Parties would not be bound by any findings made in relation to the proceeding between the HungryPanda Companies and Fantuan Australia. They submitted that this is the ‘consequence of the late joinder of third parties.’
(iii)	Fantuan Australia would be at liberty to prosecute the third party proceeding upon the conclusion of the High Court proceeding.
(iv)	They adopt the submissions of the Sellers and Executives Third Parties.
122	The HungryPanda Companies key submissions were:
(a)	Fantuan Australia has the onus of persuading the Court that the Victorian proceeding should be stayed.
(b)	The Victorian proceeding should not be temporarily stayed.
(c)	The Victorian proceeding is more advanced.
(d)	The HungryPanda Companies do not object to the temporary stay of the third party proceeding.
(e)	The Third Parties are the ones who, in ‘reality’, are making the application to stay the Victorian proceeding as they are the ones involved in either the management of Fantuan Australia or sharing in its economic success. The HungryPanda Companies submitted that Fantuan Australia is ‘the corporate vehicle by which trading occurs as a joint venture between the Sellers and Fantuan Canada.’ The HungryPanda Companies submitted: ‘Now these people now want to seek the plaintiff to stop – to have a stay of the plaintiff’s proceeding to stop them operating through their corporate vehicle.’ They also submitted that there is at least some ‘potentiality for some of the third parties to benefit’ from a stay and referred to the documents concerning the joint venture.
(f)	It was necessary for the HungryPanda Companies to commence the High Court proceeding given the ‘exclusive jurisdiction clause’ contained in the Asset Purchase Agreement. 
(g)	The nature of the wrongdoing perpetuated by the Sellers and Fantuan Australia necessitated the commencement of the High Court proceeding and the Victorian proceeding. Even if the English courts could order injunctive relief against Fantuan Australia ‘it is unlikely this could be enforced by HungryPanda in Australia’. The HungryPanda Companies relied upon the decision of Riordan J in King v Linkage Access Ltd at [35] concerning the recognition and enforcement of foreign judgments in personam at common law.
(h)	The HungryPanda Companies sought an urgent hearing in the High Court as the Sellers had failed to transfer assets pursuant to the Asset Purchase Agreement. 
(i)	The Victorian proceeding was the first substantive proceeding commenced, with points of claim being filed on 15 March 2022 whereas particulars of claim were not filed in the High Court proceeding until 6 May 2022. They commenced the Victorian proceeding ‘after it uncovered the wrongdoing of Fantuan Australia in the course of reviewing the transferred assets.’ The HungryPanda Companies did not continue to seek their interlocutory relief in the Victorian proceeding upon the basis that the Court indicated that the HungryPanda Companies’ final relief could be determined at an expedited trial.
(j)	While the Victorian proceeding and the High Court proceeding involve a common substratum of fact, there are material differences between the facts and issues raised in each proceeding. The HungryPanda Companies relied upon the Burton affidavit at [39]-[51]. While there is a common issue as to whether the Sellers breached the Asset Purchase Agreement, the issues for determination are otherwise separate and distinct. In the High Court proceeding, the alleged breaches of the Asset Purchase Agreement is an ultimate issue whereas in the Victorian proceeding it is a necessary element of the claim for inducing breach of contract.
(k)	The determination of the High Court proceeding will not resolve the Victorian proceeding or render it unnecessary. The defendant to the Victorian proceeding is not a party to the High Court proceeding and will not be affected by its determination. 
(l)	Clause 41 of the Asset Purchase Agreement is not enlivened as a result of the HungryPanda Companies’ claims against Fantuan Australia as its conduct cannot be reasonably be said to arise out of or be in connection with the Asset Purchase Agreement. Further, by reason of cl 35 of the Asset Purchase Agreement, Fantuan Australia nor the Other Executives Third Parties can seek to enforce the exclusive jurisdiction clause or otherwise rely upon it in seeking a stay of the Victorian proceeding. The HungryPanda Companies also submitted that the Other Executives Third Parties’ reliance upon Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) (‘Global Partners’) is misplaced.
(m)	The public interest in the administration of justice requires the timely and efficient resolution of claims, particularly those relating to serious misconduct. The Victorian proceeding was commenced by the HungryPanda Companies in urgent circumstances when they became aware of Fantuan Australia’s wrongdoing. The Court did not grant interim injunctive relief on the basis that the matter could proceed to an expedited trial. It is in the interests of the administration of justice and consistent with the overarching purpose that the Victorian proceeding be determined as soon as possible, rather than being delayed for a substantial period pending the outcome of the High Court proceeding.
(n)	No circumstances relating to witnesses weigh in favour of a stay being granted. The majority of witnesses are located in Australia. The HungryPanda Companies relied upon a list of the witnesses and their addresses attached to their submissions. Any foreign witnesses could give evidence by audio visual link.
(o)	The Victorian proceeding is well advanced. The High Court proceeding is not likely to be listed for trial before April 2024. If the Victorian proceeding was stayed, the significant work undertaken by the parties would go to waste.
(p)	The HungryPanda Companies would suffer significant detriment if the Victorian proceeding was stayed in that they would be deprived of the opportunity to obtain meaningful relief and the timely resolution of its claims:
(i)	The Victorian proceeding offers the HungryPanda Companies the advantage of a speedy trial whereas the High Court proceeding is not likely to be listed before April 2024.
(ii)	A temporary stay would deprive the HungryPanda Companies of meaningful relief in circumstances where they seek time limited injunctive relief (until 14 December 2024) that may not be available in the same form after a lengthy stay.
(iii)	If injunctive relief is not granted it is unlikely that damages will be an adequate remedy. In this regard the HungryPanda Companies relied upon the First Strahorn affidavit at [26]-[31]. The significant financial and reputational damage that the HungryPanda Companies has suffered and continues to suffer as a result of Fantuan Australia’s wrongdoing is increasing each day.
(iv)	Fantuan Australia will be able to continue to operate using the HungryPanda Companies’ confidential information and employees during the period of any stay. 
(q)	There is no evident prejudice to Fantuan Australia from the continuation of the Victorian proceeding.
(r)	They also submitted that ‘claims of third parties raising estoppels against their corporate vehicle [ie Fantuan Australia] should also be given little weight, absent an explanation of who benefits to oppose the plaintiff’s relief’.
(s)	The HungryPanda Companies also referred to the defence in the Victorian proceeding at [82]-[84] (relating to s 50 of the Competition and Consumer Act 2010 (Cth)) and submitted that ‘[b]ut it tends against the stay, because it’s a peculiarly Australian provision, a peculiarly Australian defence that Australian courts are suited to deal with, rather the UK courts who have no jurisdiction to hear the matter, in terms of anti-competitive conduct.’
ANALYSIS
123	The HungryPanda Companies have properly invoked the jurisdiction of this Court. They are prima facie entitled to have their case heard and determined by this Court notwithstanding that they have also instituted the High Court proceeding. I have approached these applications on this prima facie assumption. In Sterling, Lockhart J said that he approached the case on this prima facie assumption but nonetheless found that, in all of the circumstances, having balanced the advantages and disadvantages to each party in the proceeding before him, he was satisfied that the interests of justice was best served by granting a temporary stay.
124	It is convenient to address the factors set out in Sterling and then to address the further matters relied upon by the parties.
Which proceeding was commenced first?
125	In Sterling, Lockhart J found that the Sterling interests chose to commence the New Zealand proceeding first. Lockhart J also held that it was relevant that the Sterling interests then took more than two years from their complaint about the conduct of The Boots Company (Australia) Pty Ltd (ie the respondent in the Australian proceeding) before they commenced proceedings against it in Australia.
126	The HungryPanda Companies commenced the High Court proceeding on 16 February 2022 and then the Victorian proceeding on 28 February 2022. Fantuan Australia commenced the third party proceeding on 29 July 2022.
Which was the first substantive proceeding?
127	The HungryPanda Companies submitted that the Victorian proceeding was the ‘first substantive proceeding’. They submitted that they commenced the High Court proceeding as the Sellers failed to transfer assets to them under the Asset Purchase Agreement. They also referred to the fact that they filed their points of claim on 15 March 2022 in the Victorian proceeding and did not file their particulars of claim in the High Court proceeding until 6 May 2022.
128	I do not accept the HungryPanda Companies’ submission that the Victorian proceeding was the first substantive proceeding. The High Court proceeding was a substantive proceeding when it was commenced. This is readily apparent from the Claim Form, the Application Form and the witness statement of Mr Liu. The High Court proceeding when it commenced included, inter alia, substantive claims in addition to the claims for a transfer of assets under the Asset Purchase Agreement. It included:
(a)	claims for breaches of post-completion restrictions and permanent injunctive relief to prevent further breaches of those restrictions. These claims were based upon allegations that the defendants were ‘competing with the Business [ie as defined in the Asset Purchase Agreement]’ and ‘soliciting/employing Assumed Employees [ie as defined in the Asset Purchase Agreement]’;
(b)	an urgent interlocutory application to restrain a wide range of conduct, including to restrain the Sellers from competing with the ‘Business’ and from ‘soliciting/employing Assumed Employees’.
129	On 22 February 2022, the Sellers gave undertakings in the High Court proceeding concerning, inter alia, this conduct. It was not limited to undertakings concerning a transfer of assets under the Asset Purchase Agreement. 
130	In my opinion, this factor is neutral. Both proceedings were substantial proceedings when they were commenced and the Victorian proceeding was commenced within a very short period of time after the High Court proceeding.
Did the HungryPanda Companies choose to commence a proceeding against the Sellers first?
131	Fantuan Australia submitted that ‘the plaintiffs chose to commence the UK Proceeding first’ and that this ‘tells against allowing them to seek determination of this proceeding separately.’ 
132	The issue that arises is whether, at the time the HungryPanda Companies commenced the High Court proceeding against the Sellers, they had a sufficient basis to commence a proceeding against Fantuan Australia. I address the issue of whether the HungryPanda Companies chose England as the jurisdiction in which to commence the proceeding against the Sellers later in these Reasons.
133	The HungryPanda Companies commenced the High Court proceeding on 16 February 2022 to seek, inter alia, urgent relief to compel the transfer of assets under the Asset Purchase Agreement and to restrain the Sellers from competing with the ‘Business’. I am not satisfied that, by 16 February 2022, the HungryPanda Companies had a sufficient basis to commence a proceeding against Fantuan Australia.
134	As at 16 February 2022, the evidence establishes that the HungryPanda Companies:
(a)	believed that ‘Fantuan’, its global competitor, was seeking to enter into the Australian market;
(b)	knew Fantuan Australia had been recently incorporated and registered for GST;
(c)	believed that Fantuan Australia ‘appeared’ to be entering the Australian market using the ‘goodwill’ and ex-employees of the EASI Business. This included Annie Shi (now the tenth third party), who was EASI Global’s Chief Marketing Officer and one of the ’Assumed Employees’ under the Asset Purchase Agreement; and
(d)	believed that they had information that ‘strongly’ indicated that Fantuan Australia was seeking to build its network in Australia ‘using’ the contacts and services of former EASI representatives to accelerate that establishment.
135	Mr Liu’s evidence of this ‘use’ concerned instances where former employees of the EASI business were now approaching the HungryPanda Companies’ merchants on behalf of the Fantuan business and that ‘EASI’s delivery drivers are being poached by Fantuan with wage offers of AU$350 per day.’
136	I accept that by no later than 16 February 2022 the HungryPanda Companies also believed that:
(a)	the Sellers were, inter alia, breaching the Asset Purchase Agreement by competing with the Business and soliciting and employing Assumed Employees. This is because the HungryPanda Panda Companies commenced the High Court proceeding against the Sellers on 16 February 2022 in which they made these claims; and
(b)	this competition related to, inter alia, the HungryPanda Companies’ global competitor entering the Australian market by establishing Fantuan Australia and doing so ‘via the very Goodwill and ex-employees of the EASI Business that were supposed to be acquired from HungryPanda’. This is because this is the competition identified in Mr Liu’s witness statement dated 16 February 2022 filed in the High Court proceeding.
137	I also refer to the evidence of Ms Burton concerning the circumstances of the commencement of the Victorian proceeding I have set out earlier in these Reasons (set out again for convenience):
10. 	Following the transfer of certain of the Critical Withheld Assets [ie on 23 February 2022], HungryPanda discovered that certain of the defendants (namely, Yan Liu, EASI Global and EASI China (together, the EASI Conspiracy Defendants)) had deleted documents and information, including approximately 81% of the data in the EASI Microsoft Exchange system, which hosted the electronic records of the EASI Business, including email records. The data recovery specialists engaged by HungryPanda on 25 February 2022, McGrathNicol, have since recovered a significant volume of the deleted material.
11. 	Upon reviewing the recovered material [ie , HungryPanda learnt that, from at least 24 November 2021, the EASI Conspiracy Defendants conspired with Fan Tuan Holding Ltd (Fantuan Canada) with the common aim of establishing an online food delivery business in Australia (under the Fantuan name) using assets, employees and contractors of the EASI Business.
138	I am not satisfied that the HungryPanda Companies had a sufficient basis, as at 16 February 2022, to commence a proceeding against Fantuan Australia to allege that the ‘use’ of the contacts and services of former EASI representatives was the result of wrongful conduct of Fantuan Australia, including concerning: 
(a)	a misuse of confidential information; 
(b)	inducing or procuring a breach of the Asset Purchase Agreement ; or 
(c)	accessorial liability for breach of fiduciary duty. 
I am not satisfied that the HungryPanda Companies had, at that time, sufficient information to allege: how Fantuan Australia was able to use this information; whether it involved any wrongdoing by Fantuan Australia and, if so, the nature of that wrongdoing. The HungryPanda Companies only obtained the information to make these allegations after the commencement of the High Court proceeding and the transfer of the assets.   
139	I also accept that it was appropriate for the HungryPanda Companies to seek urgent relief by commencing a proceeding against the Sellers to, inter alia, obtain an order with respect to the transfer of the assets under the terms of the Asset Purchase Agreement and not to, in effect, wait until any further investigations were undertaken.
140	As a result, this is not a factor. I  am not satisfied that the HungryPanda Companies chose to commence a proceeding against the Sellers first.
Did Fantuan Australia delay in commencing the third party proceeding?
141	The Sellers and Executives Third Parties’ submitted that the third party proceedings were ‘belated’.  They also submitted that no mention was made of the third party proceeding in the First Nomikos affidavit (made 6 June 2022) and that the first mention was made in the Second Nomikos affidavit (made 16 June 2022). They submitted that an inference may be made that the joinder of third parties ‘wasn’t under consideration or it hadn’t occurred to people early June’. They then submitted that they did not seek for the Court to make any findings on this issue. Ultimately, the Sellers and Executives Third Parties submitted that the third party proceeding was commenced late relative to the commencement of the High Court proceeding and that costs were incurred by the parties to the High Court proceedings during this time.
142	The Other Executives Third Parties’ submitted that Fantuan Australia is to ‘blame’ for a late forensic decision to join the Third Parties.
143	In response, Fantuan Australia submitted:
(a)	it could not file a third party notice earlier than it did given the operation of  r 11.05(1) of the Rules which meant that a third party notice could not be filed until after it had first filed a defence. It submitted that ‘the first and only opportunity for [it] to raise its third party claim arose after [it] filed its Defence on 26 July 2022’;
(b)	Riordan J made orders with respect to the points of claim and points of defence upon the basis that the documents would be ‘living documents’; 
(c)	it would have been premature for Fantuan Australia to have sought to commence a third proceeding in these circumstances; 
(d)	the HungryPanda Companies were on notice from no later than 16 June 2022 that Fantuan Australia intended to join additional parties as defendants or alternatively as third parties if the application for a stay was unsuccessful;
(e)	Croft J ordered pleadings and Fantuan Australia filed its defence on 26 July 2022. Fantuan Australia submitted that this, in effect, ‘forced our hand’ and if a statement of claim was filed earlier then it would have dealt with it earlier.
144	Fantuan Australia filed the third party notice on 29 July 2022. This was 5 months after the proceeding had been commenced and over 3 months after the HungryPanda Companies filed amended points of claim. 
145	In my opinion, Fantuan Australia delayed in joining the Third Parties to the Victorian proceeding in the period from about late May 2022 to 29 July 2022:
(a)	the HungryPanda Companies’ amended points of claim, filed on 20 April 2022, set out the claim against Fantuan Australia by making extensive allegations concerning the Third Parties. For example, I refer to paragraphs 11 and 54 of the amended points of claim. Prior to that time these allegations were not as advanced. Fantuan Australia referred to the statement of claim and submitted that ‘the way in which it is framed makes the desire to join third parties almost inevitable’. In my opinion, this observation applies with equal force to the amended points of claim;
(b)	it was always open to Fantuan Australia to inform the Court and the parties that it wished to make claims against non-parties by adding them as third parties and to seek an order for pleadings to do so. The process adopted by Riordan J of points of claim and points of defence, and not pleadings, was not a bar to that course. In my opinion, allowing for a period of a month after the filing of the amended points of claim to obtain instructions and finalise potential third party claims, Fantuan Australia could have taken this step by no later than late May 2022;
(c)	on 16 June 2022, Fantuan Australia informed the Court and the parties that  if it was unsuccessful in its application for an order staying the Victorian proceeding, then it would likely apply to join additional parties to the Victorian proceeding as defendants, or alternatively, as third parties;
(d)	Fantuan Australia made a forensic decision, at some time prior to 16 June 2022, not to join the Third Parties, until its application for a stay was determined. I refer to the Second Nomikos affidavit at [9];
(e)	Fantuan Australia then subsequently decided to join the Third Parties and did so after pleadings were filed pursuant to the orders made by Croft J.
146	In my opinion, the delay was not inordinate. Fantuan Australia also put the parties on notice on 16 June 2022 that it may, inter alia, join additional parties as third parties.  I accept that during this period of delay the HungryPanda Companies in the Victorian proceeding and the parties to the High Court proceeding continued to incur time and expense in conducting those proceedings.
147	As a result, this is a factor in favour of a stay only of the third party proceeding, but only marginally so.
Whether the termination of one proceeding is likely to have material effect on the other
148	In Sterling, Lockhart J found that the resolution of the issues in one proceeding would not give rise to an issue estoppel in the other proceeding. His Honour did find that  the success or otherwise of a party in one proceeding would, as a practical matter, affect the conduct of that party’s associates in the other proceeding.
149	It is convenient to address this factor by addressing the likely material effect by operation of law, and then as a practical effect, of the termination of one proceeding on the other.
Legal effects
150	The Sellers and Executives Third Parties submitted:
Conversely, if this Court does not stay the Third Party claims pending the final determination of the English proceeding, and if this Court’s judgment is registered successfully in England, the English Defendants would receive an opportunity to advance a Henderson abuse plea in the English proceeding (on the basis that the English Plaintiffs, in their capacity as VSC Plaintiffs, could and should have made the identical claims against the relevant parties in the VSC proceeding). Such a plea would probably lead to arguments about the meaning and effect of clause 41.2 of the Asset Purchase Agreement.
151	The Sellers and Executives Third Parties submitted that:
(a)	assuming a trial of the Victorian proceeding takes place before the High Court delivers judgment; and
(b)	Fantuan Australia relies upon those paragraphs of the third party statement of claim that refer to and repeat paragraphs from the particulars of claim in the High Court proceeding; 
there is a risk that this may ‘generate preclusion estoppel pleas or an abuse of process plea’ in the High Court proceeding.
152	The Sellers and Executives Third Parties further submitted that:
(a)	assuming a trial of the Victorian proceeding takes place before the High Court delivers judgment;
(b)	Fantuan Australia does not rely upon those paragraphs of the third party statement of claim that refer to and repeat paragraphs from the particulars of claim in the High Court proceeding;
then, nonetheless, ‘one can envisage arguments in England concerning the preclusive effect of the judgment of this Court’.  For example, they submitted that in these circumstances, and assuming that the judgment of this Court is registered successfully in England, then the Sellers would receive an opportunity to advance a ‘Henderson abuse plea’ (ie equivalent to Anshun estoppel) on the basis that the HungryPanda Companies could and should have made identical claims against the Sellers in the Victorian proceeding. They further submitted:
It is highly likely that there would be arguments in the English proceedings about the existence, nature and extent of preclusive effects generated by the VSC judgment. Such arguments will take up resources (time and money), including the resources of the state (as the body responsible for administering the system of justice in England). The results of such arguments may result in the wastage of sunk costs. That outcome would be highly unsatisfactory.
153	The Sellers and Executives Third Parties initially submitted that if the third party proceeding was stayed pending the determination of the High Court proceeding then the following advantages would be attained:
(b) 	It would prevent the wastage of costs incurred in connection with the prosecution of claims in the English proceeding. The final determination of the VSC proceeding will give rise to res judicata estoppels, and such estoppels will render otiose, unnecessary and abusive the continued prosecution of the English proceeding. 
(c) 	It may well make it difficult for the English Defendants to contend, following the final determination of the VSC proceeding, that the continued prosecution of the English proceeding is vexatious and abusive (on different grounds, including the rule in Henderson v Henderson). 
(d) 	It would prevent the English Defendants from arguing that the High Court of England should disregard this Court’s judgment because it emanated from an abusive proceeding. 
(e) 	If the Third Party claims are stayed pending the final determination of the English proceeding, no Reichel abuse would arise if Fantuan Australia advanced the relevant Third Party claims after the final determination of the English proceeding. That is because Fantuan Australia would not have propounded (and lost) the relevant claims in the English proceeding. 
154	The Sellers and Executives Third Parties also submitted that, assuming the trial of the Victorian proceeding takes place after the High Court delivers a judgment, then:
‘[s]ubject to satisfying different requirements, however, these parties would probably tender that judgment to support a preclusion estoppel plea or an abuse plea. In any event, in this scenario, considerable duplication, wastage and vexation would exist in the period leading to the delivery of the judgement in the English proceeding. It is likely that further duplication, wastage and vexation would occur in the VSC proceeding in these circumstances.
155	The Sellers and Executives Third Parties, during the hearing of the applications, then made submissions on the basis that this Court does not need to find, on this application, that this would, in fact, be likely, just that there is a risk. They submitted, for example:
(a)	‘Mr Peters’ clients [ie the HungryPanda Companies] are here as well as in England, my clients [ie Sellers and Executives Third Parties] or most of them are here as well as in England and our mere presence here and participation in the trial is very likely to generate preclusive estoppel arguments and abuse pleas in England because we're here.  And someone might turn around - I don’t want to tread on the toes of English counsel, Mr Peters’ counterpart, my counterpart in London, but they may well turn around and say, depending on what happens in England, well, to use the crude expression, the Anshun expression and also the Henderson v Henderson expression, you could’ve, should’ve.  
You could’ve, should’ve done it there because that’s where you were and you didn’t.  Therefore, you’re estopped…’
(b)	‘what is argued in England is a matter for the English litigants and their respective lawyers, but one can see the potential for such arguments, associated costs and the risk of wastage of sunk costs’; 
(c)	‘There are a couple of potential arguments.  We set it out in the supplementary note… And then we're going to have an almighty fight potentially.  Again, I'm not going to be involved and I don't want to pre-empt what people might say but one can conceive of a situation where the parties go at each other in respect of the question of indispensability, for example’;
(d)	‘the delivery of that judgment [ie in the Victorian proceeding] will generate controversy in all likelihood in England’;
(e)	‘All sort of weird and wonderful arguments could arise’;
(f)	‘I don’t’ want to overstate it though because I don’t really need to put it much higher than that or in greater detail than that’;
(g)	there is the ‘potentiality for further disputes’;
(h)	‘…the potentiality is not farfetched stuff, Your Honour.  Your Honour doesn't have to deal with it.  Your Honour can't.  It's not Your Honour's job.  It's Mr Justice Robin Knowles or Mr Justice Butcher [ie Justices of the High Court] or someone else who'll have to deal with that but Your Honour needs to know that it's a serious risk and the potentiality is far from farfetched…Its not theoretical. These are points that are serious points and if we’re all fighting here [ie in Victoria], one can see very easily that clever lawyers in other jurisdictions [ie in England] will take points they can take’.
156	The Other Executives Third Parties submitted that if the High Court proceeding is decided first ‘there may well be some res judicata in respect of findings and in the respect of common parties here and there. There would be, at least, a rationalisation of some of the key facts and issues in dispute’. In this context, the Other Executives Third Parties relied upon the submissions of the Sellers and Executives Third Parties. 
157	Fantuan Australia in reply submitted:
Mr Heath’s clients might think that a good outcome [ie stay of the third party proceeding], and his theoretical arguments about the impact of an outcome of this proceeding on the English proceeding may well be right, what he doesn’t focus on, in my respectful submission, is the impact on this proceeding of going ahead in that way [ie on Fantuan Australia not being able to prosecute the third party proceeding at the same time as the proceeding between the HungryPanda Companies and Fantuan Australia].
158	The HungryPanda Companies submitted that as Fantuan Australia is not a party to the High Court proceeding Fantuan Australia will not be affected by the outcome of that proceeding.
159	The HungryPanda Companies made the following the submission based on there being a stay of third party proceeding:
Let’s say we have a hearing early next year, Your Honour determines that the defendant should be restrained from trading in Australia or not, and Your Honour determines that the damage caused by the defendant’s conduct is X or the defendant’s profits should be handed over to the plaintiff or not, that’s not going to decide the individual responsibility of the parties who stand behind the plaintiff [intended to be a reference to the defendant].  
They have that case excised to the United Kingdom.  Mr Williams has no interest in the United Kingdom.  His client has no interest, they don’t have any assets there, they don’t trade there, they don’t seek to be joined there.  They’re just not interested in it.  So this is the natural place for this case to be determined and it’s very difficult to see, absent a coherent argument about how our res judicata would arise, or an estoppel would arise, that that is a substantive element for Your Honour to take into account in staying the whole proceeding.
160	I accept the submission of the Sellers and Executives Third Parties to the effect that there is some risk:
(a)	given the HungryPanda Companies and Sellers are parties to the Victorian proceeding and the High Court proceeding; 
(b)	the common substratum of facts, alleged common facts and similar issues in those proceedings; and
(c)	the likely determination of the Victorian proceeding prior to the High Court proceeding (which I address later in these Reasons);
that the Sellers may seek to take steps to rely upon the findings and judgment in the Victorian proceeding to make a preclusive plea or pleas, and an application in the High Court proceeding, to dismiss or permanently stay the High Court proceeding based upon the legal effects of the findings and judgment in the Victorian proceedings. I refer to the Sellers and Executives Third Parties’ further submissions at [21], [22], [23(a)] and [24]. In the event that any such plea and application was successful it may result in, inter alia, the High Court proceeding being dismissed or permanently stayed and the time and costs incurred in that proceeding being wasted.
161	I am not otherwise able to determine the likelihood of that risk eventuating and was not urged to do so. As a result, this is a marginal factor.
162	I address this factor further in these Reasons when I address whether the third party proceeding is the consequence of the way in which the HungryPanda Companies have chosen to make their claims in the Victorian proceeding.
Material effect as a practical matter
163	The HungryPanda Companies submitted that the determination of the High Court proceeding will not resolve the Victorian proceeding or render it unnecessary. They submitted that Fantuan Australia is a defendant to the Victorian proceeding but is not a party to the High Court proceeding and will not be affected by its determination.
164	The Other Executives Third Parties submitted:
(a)	‘Once the UK proceeding is determined, the practical and realistic scope of the dispute in the Victorian Proceeding (and the parties’ appetite for continued litigation) is likely to be substantially reduced based on the liability findings made by the English Court.’ 
(b)	 ‘…if there is a temporary stay granted here what we will have is the UK courts dealing with the bulk of the claims, including the claims against the third parties…The parties would have the benefit of all of those findings… and in the respect of the common parties here and there.’ 
(c)	‘But the practical point is we would have the UK which we say is the centre of gravity here, dealing with a large body of claims which have a common nexus to the Australian claims.  We have third parties who are also parties to the UK proceeding, either existing or foreshadowed.  It would make a great deal of - it would be greatly significant if the UK was able to run its course first before it was concurrent and overlapping trial here dealing with very similar if not identical claims.’
165	I refer to the table I have set out earlier in these Reasons of the relevant entities and persons in relation to the Victorian proceeding and the High Court proceeding. It includes those entities and persons who have received a ‘letter before action’ from the HungryPanda Companies’ solicitors in relation to the High Court proceeding.
166	At present:
(a)	the HungryPanda Companies are the plaintiffs in the Victorian proceeding and the claimants in the High Court proceeding;
(b)	Fantuan Australia is the defendant to the Victorian proceeding but is not a party to the High Court proceeding. Fan Tuan Holding Ltd and Just Order Enterprise Corp, and two directors of Fan Tuan Holding Ltd, namely Leping Wu and Yaofei Feng, have received a ‘letter before action’ from the solicitors for the HungryPanda Companies in the High Court proceeding.  The directors of Fantuan Australia also include Leping Wu and Yaofei Feng. The shareholders of Fantuan Australia include AU Fan Tuan Pty Ltd (51%). The directors of AU Fan Tuan Pty Ltd include Leping Wu. The HungryPanda Companies submitted that Fantuan Australia is ‘the corporate vehicle by which trading occurs as a joint venture between the Sellers and Fantuan Canada.’ Fantuan Australia admitted that the Sellers have a minority interest in it;
(c)	the Sellers are the defendants in the High Court proceeding and the first to fourth third parties in the Victorian proceeding;
(d)	the fifth to tenth third parties in the Victorian proceeding are not parties to the High Court proceeding but each of them has received a ‘letter before action’ from the solicitors for the HungryPanda Companies in the High Court proceeding.
167	In my opinion, leaving aside the potential legal effects that may arise following the determination of either proceeding, the determination of the High Court proceeding or the Victorian proceeding first is likely to have a material effect, as a practical matter, on the termination of the other proceeding. It would be quite unreal to regard a party’s success or failure in one proceeding not to materially, as a practical matter, effect the conduct of that party in the other proceeding.  This is because
(a)	there is some commonality of parties in both proceedings (ie the HungryPanda Companies and the Sellers);
(b)	the Victorian proceeding and the High Court proceeding involve a common substratum of alleged facts, a substantial number of common alleged facts and also of similar issues. This is further addressed later in these Reasons;
(c)	there is some commonality of potential witnesses in the Victorian proceeding and the High Court proceeding. This is further addressed later in these Reasons; and
(d)	the preparation for, and trial of, each proceeding is likely to be very substantial.
168	In these circumstances, for example, if a party was unsuccessful in the first proceeding this may make it seriously consider whether to continue with its claims or defences in the second proceeding.
169	In my opinion, the material effect of the determination of the High Court proceeding first, as a practical matter, is likely to be greater than the determination of the Victorian proceeding first. This is because the High Court proceeding concerns a broader set of claims.  The HungryPanda Companies accepted that the High Court proceeding contains a ‘broader set of claims’ and is a ‘broader proceeding’. For example, the High Court proceeding includes a cause of action concerning an unlawful means conspiracy concerning the establishment of the business in Australia under the ‘Fantuan name’ (ie the business conducted by Fantuan Australia)(particulars of claim, [135]-[158]).
170	Further, in the event that the Victorian proceeding is not stayed, but the third party proceeding is stayed, the Sellers may not participate in the trial of the Victorian proceeding and, in those circumstances, the practical effect of findings and judgment in the Victorian proceeding concerning, inter alia, the conduct of the Sellers (eg concerning breaches of cl 23.1(a)-(c) of the Asset Purchase Agreement) may be lessened. This is because the Sellers would not have participated in the Victorian proceeding.
171	In my opinion, the material effect of the determination of the High Court proceeding, as a practical matter, is likely to be even greater if the persons who have received a ‘letter before action’ in the High Court proceeding are, in fact, joined to the High Court proceeding. The HungryPanda Companies have taken steps to join these persons as respondents to the High Court proceeding. I do not, however, take this into account as whether they will be joined has not been decided in the High Court proceeding. 
172	As  a result, this is a factor in favour of a stay of the Victorian proceeding.
Public interest
173	In Sterling, Lockhart J held that the New Zealand proceeding and the Australian proceeding were both ‘public interest proceedings’ rather than proceedings to protect proprietary rights of corporations.
174	The High Court proceeding and the Victorian proceeding are not public interest proceedings. They concern the private rights of the parties to those proceedings.
Public interest factor submitted by the HungryPanda Companies 
175	The HungryPanda Companies submitted that there is a public interest in the administration of justice resulting in the timely, efficient and just resolution of claims, particularly claims relating to ‘serious misconduct’. The HungryPanda Companies also submitted:
Now, the price upon which we lost our application for an interlocutory injunction was that Justice Riordan indicated the plaintiff’s claim for final relief could be determined at an expedited trial.
176	The HungryPanda Companies relied, inter alia, upon the First Strahorn affidavit, [6]-[7]. This set out, inter alia, the observations made by Riordan J on 3 March 2022:
…this is a case where effectively the interlocutory proceeding really would be tantamount to final relief and in those circumstances I’m thinking that really we should be applying our mind to expedite as an urgent trial of this matter which I think is in the interests of both parties frankly
177	His Honour made orders on this basis, including for points of claim and points of defence. As at 3 March 2022, there was a writ and general indorsement of claim.
178	The HungryPanda Companies submitted that:
The public interest in the administration of justice and the timely and efficient resolution of claims is not served by [Fantuan Australia] taking advantage of the cessation of an application for an interlocutory injunction on the basis of an expedited trial offered by the court, saying nothing about joining third parties, saying nothing about we don’t want to have discovery of this proceeding, agrees to what is the discovery and fights about access to financial information. And yet now says, oh well, let’s stop this proceeding and send us overseas.
179	I accept that there is a public interest in the timely, efficient and just resolution of legal proceedings. This is very important for the administration of justice. For reasons I express later in these Reasons, the substantial delay in the Victorian proceeding being determined, in the event of a stay of the Victorian proceeding, is a factor against a stay of the Victorian proceeding. The Victorian proceeding also concerns allegations of serious misconduct and there is a public interest in having those allegations expeditiously determined.
180	The observations made by Riordan J on 3 March 2022 that an expedited trial is in the interests of the parties, and the early interlocutory steps taken to achieve that (eg points of claim and point of defence), were made and undertaken, in the context of the Victorian proceeding at that time.  At that time, the Victorian proceeding had only recently been commenced. Since that time, important and significant developments have taken place both in the Victorian proceeding and the High Court proceeding. 
181	First, since 3 March 2022 a number of significant developments have occurred in the Victorian proceeding. The HungryPanda Companies filed points of claim and then amended points of claim. As I have said earlier in these Reasons the HungryPanda Companies’ amended points of claim, filed on 20 April 2022, set out the claim against Fantuan Australia by making extensive allegations concerning the Third Parties. Prior to that time these allegations were not as advanced. Croft J then ordered pleadings. The allegations now made against Fantuan Australia are much more extensive than the allegations made in the general indorsement of claim on the writ (filed 28 February 2022). The HungryPanda Companies issued subpoenas and the decision of Daly AsJ on an application to set aside those subpoenas is now the subject of an appeal. Fantuan Australia joined the Third Parties. No application has been made to summarily dismiss the third party proceeding or to strike it out in whole or in part. 
182	Secondly, since 3 March 2022 a number of significant developments have occurred in the High Court proceeding. This includes the filing of particulars of claim that set out, for the first time, the particulars of the HungryPanda Companies’ claims in detail in the High Court proceeding. The HungryPanda Companies have also take steps to add a number of persons and entities as respondents to the High Court proceeding.
183	I accept that the HungryPanda Companies did not press their claim for interlocutory injunctive relief on the basis that there would be an expedited trial. The significant developments in both the Victorian proceeding and the High Court proceeding, however, have meant that this has not been possible.  The developments in the Victorian proceeding and the High Court proceeding have resulted in complexities emerging in the relationship between the Victorian proceeding and the High proceeding that have resulted in, inter alia, these applications for a stay.  
184	I am not satisfied that the steps taken by Fantuan Australia after 3 March 2022 in the Victorian proceeding have been taken to take advantage of the cessation of the application for an interlocutory injunction. The impugned steps taken by Fantuan Australia were not addressed in detail in submissions, except for the timing of the making of the application for a stay and the filing of the third party proceeding. For the reasons I express later in these Reasons, I am satisfied that Fantuan Australia delayed in making the application for a stay (ie on 15 June 2022) but that delay was not significant. As I have already said in these Reasons, I am satisfied that Fantuan Australia also delayed from about late May 2022 in filing the third party notice (ie on 29 July 2022). A substantial part of that delay was after it had already made the application for a stay (ie on 15 June 2022) and after it had put the parties on notice that it may, inter alia, join additional parties as third parties (ie on 16 June 2022).
Public interest factor submitted by Fantuan Australia 
185	Fantuan Australia initially submitted that there is no public interest in advancing the Victorian proceeding and that, to the contrary, the HungryPanda Companies’ express intention is to eliminate market competition by removing Fantuan Australia and to obtain a monopoly, which is anti-competitive and inherently against public interest. 
186	During the hearing, when questioned on this submission by the Court, Fantuan Australia explained that this submission supports a stay, ‘in this way’, as it makes it more likely that the HungryPanda Companies will be confined to their financial remedies than obtaining injunctive relief to ‘take its increasingly growing competitor out of business’. Fantuan Australia further submitted:
I wish to make the submission that it is likely that the plaintiff - the plaintiffs will be confined to financial remedies.  There's no reason to think indeed that those financial remedies won't avail it, and given that those financial remedies are also effectively sought from other parties in the UK, the only think [sic] that’s different about this proceeding and which justifies a different approach in Mr Peter’s submissions in which it looms large is the fact that in this proceeding, injunctive relief is sought, including permanent injunctive relief.  What I’m asking Your Honour to do by my submission is to give less weight than you might otherwise give to that submission given the nature of the injunctive relief that is sought and the anticompetitive nature of it, which I invite Your Honour to find makes it less likely than it might be in some other cases that such injunctive relief would be granted, even if the facts are made good.
187	In those circumstances, I address Fantuan Australia’s submission in the context of the disadvantage to the HungryPanda Companies of a stay of the proceeding and its effect on the injunctive relief that they seek.
The undesirability of two courts competing to see which one determines common facts first
188	Fantuan Australia submitted that the facts alleged in the Victorian proceeding and the High Court proceeding are ‘intertwined’. It submitted that the causes of action in the Victorian proceeding and the High Court proceeding ‘arise out of the same substratum of disputed facts’. It submitted that there is an obvious risk of inconsistent findings in relation to alleged common facts. The Other Executives Third Parties made similar submissions. The Sellers and Executives Third Parties submitted that the risk of inconsistent findings of alleged common facts is present ‘across the board in all scenarios’ (ie the different outcomes of the applications for a stay). The Sellers and Executives Third Parties submitted that, even if the third party proceeding was stayed, ‘the risk of inconsistent findings would not disappear…’.
189	The HungryPanda Companies submitted that a stay of a proceeding will not always be granted where there is risk of inconsistent findings being made by two courts in relation to alleged common facts.
190	The HungryPanda Companies accepted that there is a ‘common substrata of facts’ alleged in the proceedings. It submitted that part of the factual substratum of each proceeding is a ‘fraud committed against’ the HungryPanda Companies. They submitted that there are material differences between the facts in dispute. They also submitted there are no alleged common facts.
191	The HungryPanda Companies submitted the risk of inconsistent findings would be ‘minimised’ if the third party proceeding was stayed.
192	I accept that a stay of a proceeding will not always be granted where there is a risk of inconsistent findings being made by two courts in relation to alleged common facts. It may be a factor to be taken into account, in an appropriate case, in determining whether a stay should be granted. 
193	There are a substantial number of alleged common facts in the statement of claim in the Victorian proceeding and the particulars of claim in the High Court proceeding. I refer to Appendix A to the Kangeson affidavit. Appendix A compares the allegations made in the statement of claim in the Victorian proceeding with the allegations made in the particulars of claim in the High Court proceeding. This demonstrates the nature and extent of the alleged common facts. They are substantial. Fantuan Australia is not a party to the High Court proceeding. The HungryPanda Companies, however, are plaintiffs/claimants in both proceedings and both proceedings involve a common substratum of alleged facts. In these circumstances, it is undesirable for the High Court and this Court to, in effect, compete to determine the alleged common facts. There is also a risk of inconsistent findings being made by the High Court and this Court in relation to a substantial number of alleged common facts. 
194	The third party statement of claim in the Victorian proceeding refers to and repeats some of the allegations made in the statement of claim in the Victorian proceeding. As result, this does not create a further risk of the High Court and this Court, in effect, competing to see which one determines alleged common facts first.
195	The third party statement of claim in the Victorian proceeding also refers to and repeats some of the allegations made in the particulars of claim in the High Court proceeding.  This is unorthodox. The Sellers and Executives Third Parties sought to impugn these pleas as an abuse of process. I address this issue later in these Reasons. Fantuan Australia submitted that these pleas are ‘…a red herring for the purposes of this application, they don’t really add anything, nor do they subtract anything. The third party notice on any view of the world conventionally adopts the allegations made against the defendant in this proceeding by the plaintiff in this proceeding, and that is more than enough for [Fantuan Australia] to make good my application for a stay, because of the clear overlap and connection, which no one denies, between these matters and what is in issue in the UK proceeding.’ In my opinion, to the extent the third party statement of claim in the Victorian proceeding refers to and repeats some of the allegations made in the particulars of claim in the High Court proceeding this does create, at least, some further risk of the Victorian proceeding and the High Court proceeding competing to see which one determines these facts first and a risk of inconsistent findings being made in relation to those facts.  For reasons I express later in these Reasons, however, these pleas in the third party statement of claim may be able to be dealt with prior to a trial of the Victorian proceeding (eg upon a strike out application in the Victorian proceeding).
196	I do not consider that the risk of the High Court and the Victorian competing to determine alleged common facts would be ‘minimised’ if only the third party proceeding was stayed. 
197	First, I accept that this may address the risk of the High Court and Victorian Court, in effect, competing to determine those alleged common facts in the particulars of claim in the High Court proceeding that are specifically referred to and repeated in the third party statement of claim. As I have just said, however, these pleas may be able to be dealt with prior to a trial of the Victorian proceeding (eg upon a strike out application in the Victorian proceeding).
198	Secondly, there would still be, however, a substantial number of alleged common facts between the two proceedings given the allegations made in the statement of claim in the Victorian proceeding and the allegations made in the particulars of claim in the High Court proceeding. I refer to Appendix A to the Kangeson affidavit. 
199	Thirdly, there would still be the risk of inconsistent findings being made in relation  to alleged common facts.
200	As a result, this is a factor in favour of a stay of the Victorian proceeding. 
Consideration of the circumstances relating to witnesses
201	The HungryPanda Companies submitted that no circumstances relating to witnesses weigh in favour of a stay being granted. They submitted that the majority of witnesses in the Victorian proceeding are located in Australia (as set out in an Annexure to their submissions) and that there is no reason why any foreign witness could not give evidence by audio visual link.
202	The submissions of the HungryPanda Companies concerning the identity of the witnesses were largely based upon the deponents of affidavits in February and March 2022 in the Victorian proceeding and prior to the joinder of the third parties. Except for one witness, they reside in Australia.
203	Fantuan Australia submitted that there is likely to be a ‘significant’ commonality of witnesses in the two proceedings given that the HungryPanda Companies’ claims rely on the conduct and knowledge of others (ie, not Fantuan Australia), including, inter alia, the Sellers.
204	I am satisfied that there is likely to be some commonality of witnesses in the two proceedings. This is because:
(a)	the HungryPanda Companies are parties to both proceedings;
(b)	the Sellers are parties to both proceedings;
(c)	there are alleged common facts and similar issues in both proceedings; 
(d)	there is likely to be, at least, a commonality of witnesses called on behalf of the HungryPanda Companies and the Sellers in the both proceedings. 
205	I am satisfied it may be burdensome and inconvenient to those witnesses to prepare for and be involved in two substantial proceedings.
206	The extent of that commonality may be less if the third party proceeding was stayed. This is because the Sellers would not have to participate in the Victorian proceeding as parties until after the stay of the third party proceeding.
207	I am not, however, able to further determine the extent of the commonality of witnesses. This is because there was no evidence of the witnesses likely to be called by Fantuan Australia, the Sellers and Executives Third Parties or the Other Executives Third Parties in the Victorian proceeding or by the Sellers in the High Court proceeding and those parties did not make any submissions on the witnesses likely to be called by them or their circumstances.  As a result, this is a marginal factor.
208	I address this factor further in these Reasons when I address whether the third party proceeding is the consequence of the way in which the HungryPanda Companies have chosen to make their claims in the Victorian proceeding.
Whether work done in preparation may be wasted
209	The HungryPanda Companies submitted that if the Victorian proceeding is stayed, then the significant work undertaken by the parties would go to waste. It submitted that by the time the High Court proceeding is listed for trial (ie not earlier than April 2024), Fantuan Australia would have been operating for over two years and the circumstances relevant to their claims in the Victorian proceeding would have changed substantially.
210	I accept that the HungryPanda Companies have incurred substantial time and cost in relation to the Victorian proceeding.  
211	I also accept that the HungryPanda Companies have incurred time and cost in relation to the Victorian proceeding during the period when Fantuan Australia delayed in commencing the third party proceeding (ie late May 2022 to 29 July 2022).
212	I accept that some of the work already done in preparation for the Victorian proceeding may be wasted in the event that it is stayed. For example, the work done by the HungryPanda Companies in relation to matters such as evidence and discovery may become outdated during the period of a stay and may need to be updated.
213	As a result, this is a factor against a stay of the Victorian proceeding.
How far advanced proceedings are in each court
214	In my opinion, the Victorian proceeding (excluding the third party proceeding) (ie the proceeding between the HungryPanda Companies and Fantuan Australia) is more advanced than the High Court proceeding:
(a)	a defence has been filed in the Victorian proceeding. No defence has been filed in the High Court proceeding;
(b)	the HungryPanda Companies seek to join a number of further defendants to the High Court proceeding but have not done so;
(c)	the HungryPanda Companies seek to amend their particulars of claim in the High Court proceeding but that application has not been determined;
(d)	the defendants in the High Court proceeding have made an application, inter alia, to strike out parts of the particulars of claim and that application has not been determined;
(e)	there has been discovery in the Victorian proceeding between the HungryPanda Companies and Fantuan Australia, however there remains disputes between the parties concerning discovery.  Fantuan Australia submitted that the HungryPanda Companies have not produced a copy of a database. The HungryPanda Companies submitted that Fantuan Australia has breached orders by not providing certain financial information;
(f)	subpoenas have been issued in the Victorian proceeding and have been the subject of orders made by Daly AsJ. This is now the subject of an appeal by the subpoenaed parties who are now some of the Third Parties. The appeal is presently stayed;
(g)	the Victorian proceeding (excluding the third party proceeding)(ie if the third party proceeding is stayed) may be ready for trial by about mid to late 2023 (at the earliest). This will depend upon, in part, the nature and extent of any interlocutory disputes, including concerning subpoenas and discovery;
(h)	the High Court proceeding will not be listed for trial until April 2024 at the earliest.
215	In my opinion, the Victorian proceeding (including the third party proceeding) (ie the proceeding as between the HungryPanda Companies, Fantuan Australia and the Third Parties) is marginally more advanced than the High Court proceeding:
(a)	the Third Parties in the Victorian proceeding have not filed defences;
(b)	the Sellers and Executives Third Parties have referred to a possible application to strike out the impugned pleas in the third party statement of claim (ie paragraphs [19(b)] and [21(b)] in the Victorian proceeding);
(c)	there has no discovery between Fantuan Australia and the Third Parties;
(d)	the Victorian proceeding (including the third party proceeding) may be heard in about late 2023 or early 2024 (at the earliest). Rule 11.12(b)(ii) requires that, unless otherwise ordered, at the trial the questions between the defendant and third party shall be tried concurrently with the questions between the plaintiff and defendant. Again, the time at which the proceeding will be ready for trial will depend upon, in part, the nature and extent of any interlocutory disputes, including concerning pleadings.
216	Fantuan Australia accepted that, although the likelihood of the Victorian proceeding being determined before the High Court proceeding was a factor against the application to stay the Victorian proceeding, it was a less important factor than the other ‘very real juridical difficulties’ and ought not carry much weight. In my opinion, it is a factor against a stay of the Victorian proceeding. I accept that it must be weighed, like all factors, against other factors, including those in favour of a stay of the Victorian proceeding.
217	As a result, this is a factor against a stay of the Victorian proceeding.
The law should strive against permitting multiplicity of proceedings in relation to similar issues
218	Fantuan Australia submitted that there was a substantial commonality of issues.
219	The HungryPanda Companies submitted that the Victorian proceeding and the High Court proceeding concern different causes of action against different parties. They further submitted that not all of the issues in the Victorian proceeding and the High Court proceeding are the same. They submitted that there are material differences between the issues raised in each proceeding. They submitted that the proceedings do not involve substantially the same issues.
220	The HungryPanda Companies accept that there is a common issue whether the Sellers breached the Asset Purchase Agreement but submit that this is an ‘ultimate issue’ in the High Court proceeding but only a ‘necessary element of the claim’ in the Victorian proceeding. They submitted that although there are common allegations to both proceedings ‘these relate to background information and not to the key facts and issues in dispute’. They submitted that:
This claim is really a very narrow issue about should an injunction go, perhaps with some additional relief by way of damages or an account of profits, should an injunction go against a defendant, who's traded in circumstances which infringe the plaintiff's rights.  It's not about how the whole problem occurred and how third parties are liable for their own personal responsibility to the plaintiff for what's happened.
221	The HungryPanda Companies also submitted that the Victorian proceeding deals with what has been happening in Australia and this concerns, in effect, the product of Fantuan Australia’s trading. 
222	The HungryPanda Companies submitted that ‘the risk has to be judged from the point of view between whom are those matters decided. Because [Fantuan Australia] is not a party to the English proceedings’. 
223	The Sellers and Executives Third Parties submitted that Fantuan Australia’s adoption of allegations in the particulars of claim from the High Court proceeding means that there is a multiplicity of proceedings concerning these issues.
224	I accept that a stay of a proceeding will not always be granted where there is a multiplicity of proceedings in relation to similar issues. It may be a factor to be taken into account, in an appropriate case, in determining whether a stay should be granted. 
225	The Victorian proceeding and the High Court proceeding relate to a number of similar issues concerning the claims made in those proceedings. These issues are substantial issues in each proceeding. These include (but are not limited to):
(a)	whether any of the Sellers breached cl 23.1(a) of the Asset Purchase Agreement; 
(b)	whether any of the Sellers breached cl 23.1(b) of the Asset Purchase Agreement;
(c)	whether any of the Sellers breached cl 23.1(c) of the Asset Purchase Agreement;
(d)	whether Fantuan Australia has used and continues to use the EASI Merchant Database and the EASI Delivery Driver Database without the consent of the HungryPanda Companies;
(e)	whether the Sellers engaged with Fantuan Canada with the common intention of establishing and launching an online takeaway food ordering business in Australia using the Fantuan name to compete with the business to be acquired by the HungryPanda Companies under the Asset Purchase Agreement.
226	The Victorian proceeding and the High Court proceeding also relate to a substantial number of similar issues concerning the relief sought in those proceedings.
227	First, with respect to the damages sought by the HungryPanda Companies for their claims for inducement of breach of cl 23 of the Asset Purchase Agreement in the Victorian proceeding and for their claims for breach of cl 23 of the Asset Purchase Agreement in the High Court proceeding:
(a)	in the Victorian proceeding, the HungryPanda Companies seek damages. The damage is alleged to have been suffered ‘as a consequence of the Sellers’ breaches of the Asset Purchase Agreement, and Fantuan Australia’s inducement of those breaches, by reason of the fact that Fantuan Australia is directly competing with it for customers, merchants, market share, employees, drivers and contractors.’;
(b)	in the High Court proceeding the HungryPanda Companies seek damages. The damage is alleged to be the difference between the value of the business as it is compared to the value of what the business would have been had the EASI Defendants not acted in breach of the Asset Purchase Agreement, to be assessed as close to trial as possible. This includes reference to the customers who ‘have begun subscribing to, and ordering through, the Fantuan Australia platform. Many, if not most, of those customers would otherwise have ordered through the HungryPanda or EASI Platforms. This is causing HungryPanda to lose revenue and goodwill’.
228	Secondly, with respect to the injunctive relief sought by the HungryPanda Companies in the Victorian proceeding and the injunctive relief sought in the High Court proceeding:
(a)	the following relief is similar (accepting that it is sought against different parties):
(i)	paragraph A(a)(i) of the prayer for relief in the Victorian proceeding and paragraph  167(7) in the particulars of claim in the High Court proceeding;
(ii)	paragraph A(a)(ii) of the prayer for relief in the Victorian proceeding and paragraph  167(1) in the particulars of claim in the High Court proceeding;
(iii)	paragraph A(a)(iii) of the prayer for relief in the Victorian proceeding and paragraph  167(3) in the particulars of claim in the High Court proceeding;
(iv)	paragraph A(a)(iv) of the prayer for relief in the Victorian proceeding and paragraph  167(2) in the particulars of claim in the High Court proceeding;
(v)	paragraph A(a)(v) of the prayer for relief in the Victorian and paragraph  167(4) in the particulars of claim in the High Court proceeding;
(vi)	paragraph A(b) of the prayer for relief in the Victorian proceeding and paragraph  167(8) in the particulars of claim in the High Court proceeding;
(b)	there are some differences between the injunctions sought in both proceedings: 
(i)	the injunctions in the High Court proceeding are broader in scope as they are not limited to Australia;
(ii)	in the Victorian proceeding the HungryPanda Companies seek the requirement that Fantuan Australia deliver up or destroy the alleged Confidential Information, whereas in the High Court proceeding the HungryPanda Companies seek the Sellers to confirm and procure the deletion of all alleged Confidential Information held by entities within the Sellers’ Group and related persons; 
(iii)	the injunctions are sought against different entities and persons in the Victorian proceeding (ie Fantuan Australia) and the High Court proceeding (ie the Sellers).
229	Presently there is a multiplicity of proceedings in relation to a substantial number of similar issues. Those issues are significant. Those issues also relate to the same substratum of alleged facts. They both deal with the establishment and operation of Fantuan Australia and it competing with the HungryPanda Companies in Australia. Fantuan Australia is not a party to the High Court proceeding. The HungryPanda Companies, however, are plaintiffs/claimants in both proceedings and both proceedings involve a common substratum of alleged facts. In these circumstances, in my opinion, it is a relevant factor that the law should strive against permitting multiplicity of proceedings in relation to similar issues. 
230	I accept that a stay of the third party proceeding would address the compounding effect of there being a multiplicity of proceedings in relation to similar issues caused by the third party proceeding referring to and repeating paragraphs from the particulars of claim in the High Court proceeding. For reasons I express later in these Reasons, these pleas in the third party statement of claim may be able to be dealt with prior to a trial of the Victorian proceeding (eg upon a strike out application in the Victorian proceeding). Further, a stay of the third party proceeding has the potential to also significantly compound the multiplicity of proceedings in relation to similar issues. This is because a stay of the third party proceeding would give rise to the risk of there being a separate trial in relation to the third party claims. 
231	As a result, this is a factor in favour of a stay of the Victorian proceeding and a factor against a stay of the third party proceeding.
The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues
232	The HungryPanda Companies submitted:
The nature of the wrongdoing perpetrated by the EASI Sellers and Fantuan Australia in different jurisdictions necessitated the commencement of each proceeding against different defendants seeking different and specific injunctive relief. 
233	The HungryPanda Companies initially submitted that they commenced the High Court proceeding as it was ‘necessary’ to do so given the ‘exclusive jurisdiction clause’ in the Asset Purchase Agreement (ie cl 41). The HungryPanda Companies submitted that they ‘had to go to the High Court and get an injunction to give us access to the platform we bargained for’. They referred to cl 41.2 of the Asset Purchase Agreement as being an ‘exclusive jurisdiction clause’. They also made the following submissions concerning the effect of the second sentence of cl 41.2:
(a)	 cl 41 has a ‘carve out’;
(b)	‘the second sentence of four lines derogates from the obligations of the purchasers’; 
(c)	‘the purchasers, plaintiffs,  have a broader right to sue in different jurisdictions. And the point is they can do that to the sellers if they wanted to…’; 
(d)	cl 41 should be given ‘little weight’ as it ‘does not even restrain the plaintiff from suing the sellers in other jurisdictions’;
(e)	‘the reason I say that [ie little weight] is because I’m conscious of the fact that we have issued proceedings against the sellers in the United Kingdom, and that’s one of the delicate issues in this matter that Your Honour has to balance.  I can’t shy away from that.  And I can’t shy away from the fact that whilst our claims are different in the UK, they’re a broader set of claims against different people.  There are some common issues in the sub-strata in fact, in both universes of cases.’
234	The HungryPanda Companies submitted:
Even if the English courts could order injunctive relief against Fantuan Australia, it is unlikely this could be enforced by HungryPanda in Australia.
235	Fantuan Australia submitted in response (in the context of the submissions made by the HungryPanda Companies concerning the second sentence of cl 41.2):
Another way this could have been addressed by the plaintiff, at the risk of 'coulda shoulda', if that's an expression that's going to take up some meaning in this proceeding, if I understood Mr Peters' submission correctly, he was saying that the exclusive jurisdiction clause, so called, would not have prevented his clients from suing in Australia.  
So the easiest solution, particularly given, as I pointed out earlier, and as we pinpoint in our written submissions, the plaintiffs were well aware of the conduct of which they complain in this proceeding, when they commenced the English proceeding, they could've chosen to bring the whole thing here.  Putting aside the clause, this is where the action is, the largest part of the business that was sold seems to be the Australian business.  
The conduct that's complained about is in connection with the business now being operated here by the defendant.  They could have brought the whole proceeding here and none of this would have ever been a problem, unless someone said you've got an exclusive jurisdiction clause, you've got to sue us in England.  But Mr Peters says, well that wouldn't have availed them because you look at the terms of the clause and it says that they can go anywhere they like.
So that was always an option open to the plaintiff, and therefore to the extent that the plaintiffs' got this difficulty, that would arise if it was prevented from pursuing this proceeding whilst that one's on foot, that would be a consequence of its own choice, and that's a factor that should play into Your Honour's discretion.
236	The Other Executives Third Parties made the following submission concerning the second sentence of cl 41.2 of the Asset Purchase Agreement:
Now, my submission in relation to that wording is that there's nothing stopping Mr Peters from issuing in another jurisdiction against the sellers.  Now, however, that doesn't mean that the parties - sorry, I'll withdraw that.  …It means that they can issue it in another jurisdiction.  However, the overriding substance of the clause is that the parties have still bound themselves to the UK court.  The non-UK court can have regard to this clause in determining whether to stay the proceeding that has been issued.
237	The Other Executives Third Parties also submitted that the HungryPanda Companies made a forensic choice, inter alia, to ‘litigate in the United Kingdom’. They submitted:
The situation here has occurred in part because the plaintiffs made a forensic decision as to where to litigate.  They decided to litigate in the United Kingdom initially.  For injunctive relief they decided to litigate in this court in respect of Fantuan Australia. They also decided to litigate, you may see from the file, against numerous employees and contractors in a Federal Court. So all three proceedings were commenced by HungryPanda, the HungryPanda group.  
238	I have earlier set out cl 41 of the Asset Purchase Agreement in these Reasons. The second sentence of clause 41.2 provides (set out again for convenience):
Nothing in this Clause shall (or shall be construed so as to) limit the Purchasers’ right to take Proceedings against the Sellers in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not) if and to the extent permitted by law.
239	The parties accepted, correctly, that cl 41.2 is to be construed pursuant to the laws of England. In Global Partners, the Court of Appeal of New South Wales applied English law to the proper construction of the foreign jurisdiction clause. 
240	Presently, the HungryPanda Companies bring two proceedings in two jurisdictions concerning a common substratum of facts and a substantial number of alleged common facts and similar issues. This is the result of choices made by them concerning forum for their claims against the Sellers.
241	The HungryPanda Companies did not identify any reason why it was ‘necessary’ for them to commence the proceeding against the Sellers in England except for cl 41.2 of the Asset Purchase Agreement. 
242	Clause 41.2 provides, inter alia, that nothing in the clause shall (or shall be construed so as to) limit the HungryPanda Companies’ right to take proceedings against the Sellers in any other court of competent jurisdiction (whether concurrently or not) if and to the extent permitted by law. 
243	The HungryPanda Companies also accepted that pursuant to cl 41.2 (second sentence) the HungryPanda Companies have a broader right to sue the Sellers in different jurisdictions to England.
244	As I have said earlier in the Reasons, at the time the HungryPanda Companies commenced the High Court proceeding:
(a)	they believed the Sellers were, inter alia, breaching the Asset Purchase Agreement by competing with the Business and soliciting and employing ‘Assumed Employees’; 
(b)	they believed this competition was related, inter alia, to the HungryPanda Companies’ global competitor entering the Australia market by establishing Fantuan Australia;  and
(c)	they made an interlocutory application in the High Court proceeding to obtain injunctive relief to restrain the Sellers from, inter alia, breaching the Asset Purchase Agreement by competing with the Business and soliciting and employing ‘Assumed Employees’ in Australia, as well as other countries. 
Nonetheless, the HungryPanda Companies chose to commence the proceeding against the Sellers in England.
245	The HungryPanda Companies then commenced the proceeding against Fantuan Australia in this Court. They evidently did so on the basis that they seek, inter alia, injunctive relief against Fantuan Australia and that Fantuan Australia is resident in Victoria. 
246	The HungryPanda Companies then chose to continue to prosecute the High Court proceeding.
247	The HungryPanda Companies have now taken steps to join the remaining Third Parties (ie the fifth to tenth Third Parties), and other persons, to the High Court proceeding and not as defendants to the Victorian proceeding. They have also taken steps to amplify and make further claims in the High Court proceeding by seeking leave to amend their particulars of claim.
248	As a result, this is a factor in favour of a stay of the Victorian proceeding.
Generally balancing the advantages and disadvantages to each party
249	I will now consider the advantages and disadvantages, as submitted by the parties, of a stay of the Victorian proceeding and of the third party proceeding.
The HungryPanda Companies and the opportunity to obtain meaningful relief and the timely resolution of their claims 
250	The HungryPanda Companies submitted that if the Victorian proceeding is stayed:
(a)	it would deprive the HungryPanda Companies of meaningful relief as it seeks various time limited injunctive relief (ie until 14 December 2023 and 14 December 2024) that might not be available in the same form after a lengthy stay of the Victorian proceeding. It submitted that this would be a significant detriment;
(b)	the HungryPanda Companies ‘cannot go to the United Kingdom for primary relief [ie injunctive relief]’ as non-monetary judgments cannot be registered in Australia and the High Court of England and Wales is not able to administer a sanction for contempt of court in Australia. They submitted that ‘[its] got to be a proceeding in Australia if you want an injunction to stop someone trading’;
(c)	damages are unlikely to be an adequate remedy. They referred to the capacity of Fantuan Australia to pay any damages;
(d)	Fantuan Australia will be able to continue operating its business using the HungryPanda Companies’ confidential information and employees during the period of a stay of the Victorian proceeding; and
(e)	the significant financial and reputational damage that the HungryPanda Companies have suffered and continues to suffer as a result of Fantuan Australia’s wrongdoing is increasing each day.
251	Fantuan Australia submitted:
(a)	in the event that the HungryPanda Companies commenced a proceeding against Fantuan Australian in the United Kingdom and obtained injunctive relief it could be enforced in an action for contempt in a United Kingdom Court. A fine could be imposed that could then be enforced. It also submitted that the ‘idea that the order would not be complied with by people who are involved in international commerce, it’s all inconceivable.’;
(b)	‘It's said that, well damages won't be an adequate remedy for that, but that's just said, he's not really established how damages won't be an adequate remedy, and you haven't heard any substantial submission about that, and there's no evidence about that.’
(c)	‘it is likely that…the plaintiffs will be confined to financial remedies.’ Fantuan Australia submitted that the HungryPanda Companies seek a permanent injunction. Fantuan Australia then clarified this submission: ‘I should step back from permanent injunction to injunction until 13 December 2023, the precise terms, but in practice that's permanent to close down a business which has started.’ It referred to the HungryPanda Companies’ expressed purpose of the Asset Purchase Agreement being to take out its only material competitor in the Australian market and submitted that the relief was ‘anti-competitive’. Fantuan Australia submitted:
Well in terms of evidence I rely on the evidence that we pointed to as to the plaintiff's actual intention.  And in terms of the relief, I point to the terms of the injunction which seeks a permanent injunction, taking the plaintiff out of this business forever.
(d)	Fantuan Australia also submitted as to the financial remedies that:
There's no reason to think indeed that those financial remedies won't avail it, and given that those financial remedies are also effectively sought from other parties in the UK…
252	The Other Executives Third Parties accepted that the HungryPanda Companies would be prejudiced by a stay of the Victorian proceeding. They submitted that one option to address this is for the HungryPanda Companies to join Fantuan Australia to the High Court proceeding, obtain judgment and then ‘it could take the findings from that judgment and the – the evidentiary findings and use that in the Australian proceeding because there’s common parties, and there could be at the very least issues estoppel, because they’re both parties to the UK proceeding…That would shortcut the trial down here.’ They accepted that this has not been thought through carefully and would still result in delay. They accepted if Fantuan Australia was joined to the High Court proceeding any injunctive relief granted by the High Court could not be enforced in Australia.
253	The following key issues arise for consideration:
(a)	Is it unlikely that the HungryPanda Companies will obtain injunctive relief in the Victorian proceeding as it is ‘anti-competitive’?
(b)	If the Victorian proceeding is stayed, will the HungryPanda Companies be able to obtain meaningful injunctive relief against Fantuan Australia in the Victorian proceeding?
(c)	If the Victorian proceeding is stayed, are the HungryPanda Companies able to obtain meaningful injunctive relief against Fantuan Australia by alternate means? For example, by joining it to the High Court proceeding or by commencing a new proceeding against Fantuan Australia in England?
(d)	Are damages an adequate remedy for the HungryPanda Companies’ claims in the Victorian proceeding?
(e)	Assuming that a stay of the Victorian proceeding is a disadvantage to the HungryPanda Companies’ in the Victorian proceeding, is that disadvantage addressed by any other matters?
Is it unlikely that the HungryPanda Companies will obtain injunctive relief in the Victorian proceeding as it is ‘anti-competitive’?
254	I am not satisfied, upon the present material, that it is unlikely that the HungryPanda Companies will obtain injunctive relief in the Victorian proceeding as it is ‘anti-competitive’. 
255	The HungryPanda Companies seek, inter alia, injunctive relief concerning the alleged misuse of confidential information in support of their claims based upon the restraints in the Asset Purchase Agreement. I am not satisfied, upon the present material, that this is anti-competitive. 
256	Apart from the injunctive relief in relation to alleged misuse of confidential information the injunctive relief is time limited. It is based upon restraints in the Asset Purchase Agreement. I am not satisfied that the injunctions would, as submitted by Fantuan Australia, take it ‘out of this business forever’. No such relief is sought. 
257	Fantuan Australia did not take the Court to any authority despite the Court raising this issue with it. Fantuan Australia also did not otherwise develop this submission in any detail.
258	Fantuan Australia did not make any submissions, in this context, concerning its defence alleged in paragraphs [82]-[86] of the defence concerning s 50 of the Competition and Consumer Act 2010 (Cth). It did not submit that this was relevant in the context of this submission. These matters, in any event, concern the quantification of damages and not the HungryPanda Companies’ entitlement to injunctive relief.
If the Victorian proceeding is stayed, will the HungryPanda Companies be able to obtain meaningful injunctive relief against Fantuan Australia in the Victorian proceeding?
259	In my opinion, in the event that:
(a)	the Victorian proceeding (including the third party proceeding) is not stayed, it may be ready for trial by about late 2023 or early 2024 (at the earliest), and if the HungryPanda Companies are successful, the HungryPanda Companies may obtain judgment, including injunctive relief, against Fantuan Australia by about early to mid 2024 (at the earliest);
(b)	only the third party proceeding is stayed, the Victorian proceeding may be ready for trial by mid to late 2023 (at the earliest) and if the HungryPanda Companies are successful, they may obtain judgment, including injunctive relief, against Fantuan Australia by about late 2023 to early 2024 (at the earliest).
260	In my opinion, in the event:
(a)	the Victorian proceeding is stayed (including the third party proceeding);
(b)	the High Court gives judgment in about mid to late 2024 at the earliest (ie upon the assumption that the trial is in April 2024); and
(c)	the stay in the Victorian proceeding then ceases and the Victorian proceeding (including the third party proceeding) continues to be prosecuted up to and including a trial, and the HungryPanda Companies are successful, the HungryPanda Companies may obtain judgment, including injunctive relief, against Fantuan Australia by about late 2024 to early 2025 (at the earliest).
261	The HungryPanda Companies described the injunctive relief as their ‘primary relief’. I accept the submission of the HungryPanda Companies that the utility of the injunctions ‘wanes’ as time passes. This is because the injunctive relief is mostly time limited. 
262	In those circumstances, a stay of the Victorian proceeding is likely to deprive the HungryPanda Companies of the opportunity to obtain meaningful injunctive relief in that proceeding. Fantuan Australia would also be able to continue to engage in the impugned conduct the subject of the claims by the HungryPanda Companies in the Victorian proceeding.
If the Victorian proceeding is stayed, are the HungryPanda Companies able to obtain meaningful injunctive relief against Fantuan Australia by alternate means? For example, by joining Fantuan Australia to the High Court proceeding or by commencing a new proceeding against it in England?
263	If the Victorian proceeding is stayed, the HungryPanda Companies may not be able to obtain meaningful injunctive relief against Fantuan Australia by alternate means. For example, by joining it to the High Court proceeding or commencing another proceeding against it in England:
(a)	Fantuan Australia may not be able to effectively enforce an injunction of the High Court or of another English court in this jurisdiction. For example, it is well established that for recognition and enforcement of foreign judgments in personam at common law a foreign judgment must be for a fixed sum or definite sum of money. There is no also statutory avenue for the registration of an injunction as the Foreign Judgments Act 1991 (Cth) does not extend to non-money judgments. Section 5(6) of the Act allows for foreign non-money judgments to be prescribed under the Foreign Judgments Regulations 1992 (Cth) so that they can be enforced in Australia. However, no types of non-money judgments have been prescribed;
(b)	an action for contempt in the High Court or another court in England against Fantuan Australia may not be an effective alternative to enforcement of an injunction of this Court against Fantuan Australia in this jurisdiction;
(c)	trusting the persons in control of Fantuan Australia, as ‘people who are involved in international commerce’, to abide by any injunction obtained in the High Court or another court in England may not be an effective alternative to enforcement of an injunction of this Court against Fantuan Australia in this jurisdiction; and
(d)	the option submitted by the Other Executives Third Parties of the HungryPanda Companies obtaining a final judgment in the High Court proceeding and then ‘using’ it in the Victorian proceeding, does not deal with the matters I have just addressed concerning enforcement of an injunction. It may also be productive of further delay. It may also not be an effective alternative to enforcement of an injunction of this Court against Fantuan Australia in this jurisdiction.
Are damages an adequate remedy for the HungryPanda Companies’ claims in the Victorian proceeding?
264	I am satisfied that there is a real risk that damages in the Victorian proceeding may not be an adequate remedy for the HungryPanda Companies’ claims in the Victorian proceeding as Fantuan Australia may not be in a financial position to pay such damages:
(a)	Fantuan Australia has a paid up share capital of $2,000,100. This is also consistent with the provisions of the joint venture agreement (as amended);
(b)	the results of the searches of the national ownership register show that Fantuan Australia holds no real properly in Australia;
(c)	HungryPanda Companies’ potential claim may significantly exceed the sum of $2,000,100 (being the paid up share capital of Fantuan Australia). The alleged damages are continuing;
(d)	I do not accept the HungryPanda Companies’ submissions that it is ‘unlikely’ that damages will be an adequate remedy. As I have already said, there is a ‘real risk’ that this will not be the case. This is because there is insufficient information, upon these applications, for the Court to make that finding. For example, there is no evidence as to what funds Fantuan Australia received, and from whom, to enable it to launch a business in Australia on 1 March 2022 and to continue to trade for a period until it received the sum of $2,000,000 (in addition to the $100 it had already received upon incorporation) in about mid-May 2022.
Assuming that a stay of the Victorian proceeding is a disadvantage to the HungryPanda Companies’ claims in the Victorian proceeding, is that disadvantage addressed by any other matters?
265	In my opinion, the disadvantage to the HungryPanda Companies of a stay of the Victorian proceeding may be addressed, at least to some extent, by other matters.
266	The HungryPanda Companies claim damages for similar losses in the High Court as they do in the Victorian proceeding. I have addressed this earlier in these Reasons. As a result, the HungryPanda Companies may be able to, as submitted by Fantuan Australia, ‘avail’ themselves of their financial claims in the High Court proceeding. The damages in the High Court proceeding may be, in effect, a significant remedy. 
267	I accept Fantuan Australia’s submission that the undertaking given by Fantuan Australia on 3 March 2022 in relation to use of particular  information of the HungryPanda Companies would continue in the event that the proceeding was stayed. This addresses the injunctive relief sought in paragraph A(a)(i) of the Prayer for Relief in the statement of claim. It does not, however, address the other substantive claims for injunctive relief. As a result, I do not consider this to be a relevant factor with respect to the remainder of the injunctive relief sought by the HungryPanda Companies.
Conclusion
268	As a result, this factor is in favour of not staying the Victorian proceeding. I also take into account, however, that the damages in the High Court proceeding may be a significant remedy.
Fantuan Australia and its intended reliance upon the judgment of the High Court
269	Fantuan Australia submitted that it would be disadvantaged if there was no stay of the Victorian proceeding as:
(a)	the Victorian proceeding would likely be determined first; and
(b)	it would lose the opportunity to tender the judgment of the High Court proceeding in the Victorian proceeding to prove the allegations made in the third party statement of claim that refer to and repeat allegations in the particulars of claim in the High Court proceeding (ie in paragraphs 19(b) and 21(b) of the third party statement of claim).
It submitted that ‘[i]t’s not the largest reason, but it’s a reason.’
270	The Sellers and Executives Third Parties’ submitted that, by reason of s 91 of the Evidence Act 2008 (Vic), the findings of the High Court would not be admissible to prove the existence of a fact that was in issue in the High Court proceeding. Fantuan Australia made no further submissions in reply.
271	Section 91 of the Evidence Act provides:
91 	Exclusion of evidence of judgments and convictions 
(1) 	Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. 
(2) 	Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
272	In Talacko v Talacko, Elliott J referred to s 91 of the Evidence Act and then cited the following passage from Ainswoth v Burden:
It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose – as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false – they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act.
273	In these circumstances, evidence of the decision, or of a finding of fact, in the High Court proceeding is not admissible in the Victorian proceeding to prove the existence of a fact that was in issue in the High Court proceeding.
274	As a result, I do not accept Fantuan Australia’s submissions that it would be disadvantaged as submitted and I conclude that it is not a factor. 
Fantuan Australia and the prosecution of its third party claims in the event that the third party proceeding is stayed
275	Fantuan Australia submitted that if the third party proceeding is stayed then it would be significantly disadvantaged as:
(a)	Fantuan Australia may be exposed to the burden and expense of two trials in this Court;
(b)	Fantuan Australia would have the onus of proving its claims against the Third Parties in a separate trial; 
(c)	the Third Parties would not be bound by the decision made in the proceeding between the HungryPanda Companies and Fantuan Australia;
(d)	there is a risk of inconsistent findings by this Court upon the claims by the HungryPanda Companies against Fantuan Australia and upon the claims by Fantuan Australian against the Third Parties in relation to the same facts and issues;
(e)	the submissions of the Third Parties do not address, in practical or real terms, how this Court could reasonably proceed with adjudication of the HungryPanda Companies’ case against Fantuan Australia whilst temporarily staying the third party proceeding; and
(f)	Fantuan Australia described a stay of the third party proceeding as ‘the worst of all worlds for the conduct of this proceeding’.
276	The HungryPanda Companies referred to the documents concerning a sale to Fantuan Canada and also documents concerning the Joint Venture Agreement and made the following key submissions:
(a)	the Third Parties are either in the management of Fantuan Australia or sharing in its economic success;
(b)	Fantuan Australia is the corporate vehicle by which trading occurs as a joint venture between the Sellers and Fantuan Canada;
(c)	the ‘Key Employees’ in the Letter of Intent are some of the Third Parties;
(d)	they referred to the Letter of Intent and the parties to it, including the ‘Key Employees’ listed in it, and submitted that ‘these people now want to seek’ a stay of the Victorian proceeding;
(e)	it is a fair inference that some of the management that are entitled to receive profits pursuant to the Joint Venture Agreement are some or all of the Third Parties;
(f)	it is sufficient for the HungryPanda Companies to show that there is at least the possibility that some of the Third Parties will benefit from a stay of the Victorian proceeding;
(g)	Fantuan Australia’s solicitors in the Victorian proceeding are the same solicitors that acted for it in relation to the Joint Venture Agreement (they are referred to in the parties details on the first page of the Joint Venture Agreement);
(h)	no weight should be given to the claims made by Fantuan Australia that it is prejudiced by the Third Parties not assisting it to defend the claims of the HungryPanda Companies; and
(i)	‘claims of third parties raising estoppels against their corporate vehicle should also be given little weight, absent an explanation of who benefits to oppose the plaintiff’s relief’.
277	The Sellers and Executives Third Parties submitted:
(a)	the Court should not give great weight to potential difficulties in Fantuan Australia  seeking to prove the allegations in the particulars of claim in the High Court proceeding that are repeated and referred to in the third party statement of claim; and
(b)	assuming that Fantuan Australia did seek to prove the alleged wrongdoing of the Third Parties it could do so by its own evidence, including documents discovered in the third party proceeding, and by cross-examining the Third Parties. It also submitted that quantum would already have been determined in the proceeding between the HungryPanda Companies and Fantuan Australia.
278	The Sellers and Executives Third Parties submitted:
If the stay of the Third Party claims causes inconvenience and additional expense for Fantuan Australia, that state of affairs has arisen from its belated adoption of allegations made in the English proceeding (and the knowledge that this step would create the very problems about which it now complains in order to support its stay application for a temporary stay of the entire VSC proceeding).
279	The Sellers and Executives Third Parties also submitted that the orthodox use of the third party procedure would not achieve the avoidance of a multiplicity of proceedings and would not achieve finality in litigation given the High Court proceedings and also the ‘actual and potential problems and burdens’ to which the parties in the High Court proceeding will be exposed as a result of the determination of the Victorian proceeding (including the third party claim)(eg possible preclusive pleas in the High Court proceeding).
280	The Other Executives Third Parties submitted that this disadvantage to Fantuan Australia is the ‘consequence of the late joinder of third parties’ and that, as a result, Fantuan Australia must, in effect, pay the ‘price’ of an expedited trial on the basis that ‘there’s no binding findings against third parties.’ 
281	Fantuan Australia in reply:
(a)	admitted that the Sellers have a minority economic interest in it; 
(b)	submitted that with respect to the those Third Parties who are also alleged to be the ‘Senior EASI Executives’:
there’s no evidence, it’s not pleaded and it’s not admitted that the senior executives are still executives of, or indeed are executives, let alone are still executives, of Fantuan Australia, and in fact they’re not.
(c)	accepted that the Third Parties will help Fantuan Australia in defence of the claims by the HungryPanda Companies against it;
(d)	submitted that if Fantuan Australia is found liable to the HungryPanda Companies then the Third Parties would be ‘very unlikely’ to help Fantuan Australia prove the case against themselves; and
(e)	submitted if  ‘a finding is made against it that the third parties have engaged in misconduct, and then when it turns around and says to the third party you've engaged in misconduct, you've got to make contribution, a finding is made that they didn't engage in the very same misconduct.  Now, that's an intolerable position for the defendant, and it's, if I might say so, it's close to intolerable position for the court.’
282	I make the following observations:
(a)	Fantuan Australia accepted that the Sellers have a minority interest in it;
(b)	Au Fan Tuan Pty Ltd, P&L Group Holdings Pty Ltd and Fantuan Australia entered into the Joint Venture Agreement concerning ‘an online take-away food ordering business in Australia’. Fantuan Australia admits the Joint Venture Agreement in its defence;
(c)	the HungryPanda Companies plead that the Senior EASI Executives are employees of Fantuan Australia and Fantuan Australia denies this in its defence;
(d)	the Letter of Intent provides that the ‘Key Employees’, which include some of the Third Parties, ‘will have entered into employment agreements with the Buyer [Fan Tuan Holding Ltd] and the Corporation [EASI Global Ltd] obligating them to employment to the Corporation [EASI Global Ltd] from the Closing Date until at least the date that is three years thereafter, on terms and conditions as those parties may agree, each acting reasonably’. I have said earlier in the Reasons that Fantuan Australia alleges that as the Sellers did not terminate the Asset Purchase Agreement the condition precedent in paragraph 6(a) of the Letter of Intent was not satisfied and that the Letter of Intent and Side Letter Agreement were thereby rendered null and void and that there was no sale or transfer of assets owned by EASI Global Ltd to any Fantuan entity. This is in issue in the Victorian proceeding;
(e)	Kelu Liu, the founder and Chief Executive Officer of the ‘HungryPanda corporate group’ gave evidence, on the application for interlocutory relief in the High Court proceeding, that Annie Shi (ie the tenth Third Party) was being represented, together with another person, as leaders of the ‘Fantuan team’; 
(f)	Fantuan Australia did not put on any evidence in support of its submission that none of the Third Parties are currently its employees. This was submitted from the Bar table.
283	I accept that some of the Third Parties may benefit from a stay of Victorian proceeding. This is because such a stay will also, in effect, stay the third party proceeding and delay it. I accept that a delay of the third party proceeding may financially benefit:
(a)	the Sellers (who have a minority interest in Fantuan Australia);
(b)	any Third Parties that may be entitled to an allocation of ‘management units’ under the Joint Venture Agreement (see cl 11 of the Joint Venture Agreement),
as Fantuan Australia could continue to engage in the impugned conduct. I also accept, in this context, that a stay of the Victorian proceeding may benefit Fantuan Australia. I note, however, that not all of the Third Parties seek a stay of the Victorian proceeding. This includes, importantly, the Sellers and Executives Third Parties, which also includes Ye (Gary) Ge, who is listed as a ‘Key Employee’ in the Letter of Intent. The Sellers and Executives Third Parties do not seek a stay of the Victorian proceeding. They only seek a stay of the third party proceeding.
284	The Third Parties may also benefit from only a stay of the third party proceeding. This is because they would not be bound by the findings made in the proceeding between the HungryPanda Companies and Fantuan Australia.  
285	In my opinion, a stay of the third party proceeding may expose Fantuan Australia to the burden and expense of two trials in this Court. There remains a risk that Fantuan Australia may prosecute its third party proceeding if it is found liable to the HungryPanda Companies as a result of any wrongdoing of the Third Parties.   Fantuan Australia may take such action even though it may be against the Sellers (who Fantuan Australia accepts have a minority interest in it) or a current employee. I do take into account, however, in assessing this risk, that it is not as great as a risk that may arise if there was no minority interest or alleged employment relationship. Nonetheless, it remains a very real risk. As I have already said, the Sellers and Executives Third Parties do not seek a stay of the Victorian proceeding. They seek a stay of the third party proceeding only, a position which is contrary to that of Fantuan Australia and potentially adverse to it.  The Other Executives Third Parties have also made submissions on these applications that are adverse to Fantuan Australia.  
286	As a result, this is a factor against a stay of the third party proceeding.
287	Secondly, in the event that Fantuan Australia prosecuted its claims against the Third Parties, Fantuan Australia would have the burden to prove the claims against the Third Parties without the benefit of the findings made in the trial between the HungryPanda Companies and Fantuan Australia. There is a risk that, in the event that the HungryPanda Companies obtain judgment against Fantuan Australia based upon establishing the alleged wrongdoing of the Third Parties, that the Third Parties may not assist Fantuan Australia in the third party proceeding. Fantuan Australia would, inter alia, have to rely upon its own evidence to prove the matters alleged in the third party statement of claim. This may be a disadvantage. Fantuan Australia did not identify this disadvantage with any further precision. 
288	As a result, it is a factor against a stay of the third party proceeding, but only marginally so.
289	Thirdly, in the event that Fantuan Australia prosecuted its claims against the Third Parties, there is a risk of inconsistent findings by this Court upon the claims by the HungryPanda Companies against Fantuan Australia and upon the claims by Fantuan Australian against the Third Parties in relation to the same facts and issues. This is because the Third Parties would not be bound by any findings or judgment between the HungryPanda Companies and Fantuan Australia. There is a risk that, in the event that the HungryPanda Companies obtain judgment against Fantuan Australia based upon establishing the alleged wrongdoing of the Third Parties, that the Third Parties may not assist Fantuan Australia by, in effect, accepting the findings or judgment between the HungryPanda Companies and Fantuan Australia.
290	As a result, this is a factor against a stay of the third party proceeding.
291	Fourthly, I accept the Sellers and Third Parties’ submission that the third party proceeding may not achieve the avoidance of all multiplicity of proceedings and finality in litigation. This is because of the existence of the High Court proceeding. In the event that the third party proceeding is not stayed, and proceeds, it will not ‘solve the problem of multiplicity of proceedings’. A stay of the third party proceeding, however, may compound the multiplicity of proceedings. I have already addressed this factor.
292	Fifthly, in AMP Insurance Co Ltd v Dixon, the Full Court said:
It is as well to begin a consideration of this matter by quoting the well-known passage from the judgment of Scrutton, LJ in Barclay's Bank v Tom, [1923] 1 KB 221, at p. 224 which reads: "The object of the third party procedure is then in the first place to get the third party bound by the decision between the plaintiff and the defendant. In the next place it is directed to getting the question between the defendant and the third party decided as soon as possible after the decision between the plaintiff and the defendant, so that the defendant may not be in the position of having to wait a considerable time before he establishes his right of indemnity against the third party while all the time the plaintiff is enforcing his judgment against the defendant. And thirdly, it is directed to saving the extra expense which would be involved by two independent actions.
293	In my opinion, each of the objects of the third party procedure may be defeated if the third party proceeding is stayed as:
(a)	the Third Parties would not be bound by the decision between the HungryPanda Companies and Fantuan Australia;
(b)	the questions between Fantuan Australia and the Third Parties would not be decided as soon as possible after the determination of the questions between the HungryPanda Companies and Fantuan Australia; and
(c)	there would be extra expense incurred in having two separate proceedings.
294	As a result, this is a factor against the stay of the third party proceeding.
295	Sixthly, I reject the Other Executives Third Parties’ submission that this disadvantage is the consequence of the late joinder of third parties. In my opinion, this is the consequence of the HungryPanda Companies making claims of wrongdoing against persons in the Victorian proceeding (ie the Third Parties) without joining those persons as defendants, resulting in Fantuan Australia joining those persons as third parties. I address this later in these Reasons. I also reject the Sellers and Executives Third Parties submission that the inconvenience and additional expense to Fantuan Australia has been caused by Fantuan Australia’s adoption of allegations from the particulars of claim in the High Court proceeding. This is because, this inconvenience would remain even if those allegations were not made in the third party statement of claim as the third party statement of claim also refers to and adopts extensive allegations from the HungryPanda Companies’ statement of claim in the Victorian proceeding.
Fantuan Australia and the enforcement of judgment against it if the third party proceeding is stayed
296	Fantuan Australia submitted:
(a)	if the third party proceeding is stayed; and
(b)	it is held liable to the HungryPanda Companies for damages;
the HungryPanda Companies could enforce the judgment against it prior to it prosecuting the third party proceeding. It submitted that this would be a disadvantage.
297	The HungryPanda Companies submitted that this should be given no weight as some of the Third Parties could easily ‘capitalise’ Fantuan Australia and avoid it being put into liquidation. The HungryPanda Companies submitted that, in the absence of any evidence concerning the ‘internal machinations’ within Fantuan Australia, no weight should be given to this alleged disadvantage. 
298	The Court raised with the parties that this potential disadvantage may be addressed by a condition on any stay of the third party proceeding that, for example, any judgment for damages or an account of profits not be enforced until further order. The HungryPanda Companies submitted that there was ‘force’ in this course and that they did not consent or oppose it but did oppose it applying to any costs awarded to them. As a result, I do not consider this to be a disadvantage to Fantuan Australia as if the Court was minded to grant a stay of the third party proceeding it could address this disadvantage by imposing such a condition.
299	As a result, this is not a factor as any disadvantage may be readily addressed by a condition imposed on any stay of the third party proceeding.
Third parties and the possibility of being involved in two proceedings and two trials in the event of no stay 
300	The Sellers and Executives Third Parties submitted that if the third party proceeding is not stayed then they will be vexed twice in respect of the same claims and will incur the costs and expenses of dealing with those claims in the Victorian proceeding and the High Court proceeding. The Other Executives Third Parties made submissions to the same effect but in the context that this may be addressed by a stay of the Victorian proceeding or a stay of the third party proceeding.
301	The Third Parties also submitted that they would be disadvantaged as they would have to defend allegations made in the particulars of claim in the High Court proceeding that Fantuan Australia refers to and repeats in its third party statement of claim. This is likely to be before the hearing and determination of the High Court proceeding. They submitted that this would cause them disadvantage as they would be forced to defend these allegations ‘in a truncated manner without the procedural steps and protections afforded to them’ in the High Court proceeding.  
302	Presently, the Sellers (ie the first to fourth third parties in the Victorian proceeding) are the only third parties who are also parties to the High Court proceeding. The other third parties have each received a ‘letter before action’ from the solicitors for the HungryPanda Companies and there is a risk that they will be joined as respondents to the High Court proceedings. I do not, however, take this in account as whether they will be joined has not been decided in the High Court proceeding.
303	The Sellers may be disadvantaged if there is no stay of the third party proceeding as they may be vexed by two proceedings concerning alleged common facts and similar issues. In the event that other third parties (ie the fifth to tenth third parties in the Victorian proceeding) are joined to the High Court proceeding they may also be disadvantaged in the same manner. As I have already said, I do not take this in account as whether they will be joined has not been decided in the High Court proceeding.
304	The Sellers may also be vexed by having to deal with, in the Victorian proceeding, those allegations from the particulars of claim in the High Court proceeding that are referred to and repeated in the third party statement of claim. I accept that a stay of the third party proceeding would address this disadvantage. For reasons I express later in these Reasons, however, these pleas in the third party statement of claim may be able to be dealt with prior to a trial of the Victorian proceeding (eg upon a strike out application in the Victorian proceeding).
305	I address this factor further in these Reasons when I address whether the third party proceeding is the consequence of the of the way in which the HungryPanda Companies have chosen to make their claims in the Victorian proceeding.
Is the third party proceeding the consequence of the way in which the HungryPanda Companies have chosen to make their claims in the Victorian proceeding?
306	Fantuan Australia submitted that the third party proceeding is a consequence of the HungryPanda Companies’ choice in making claims against Fantuan Australia based upon the alleged wrong doing of other persons, including the Third Parties, and not joining them as defendants. It submitted that, therefore, the ‘present difficulties’ are the natural and probable consequence of the HungryPanda Companies’s choice to proceed in that way.
307	The claims made by the HungryPanda Companies are, inter alia, based upon the alleged conduct of others, including the Third Parties, as follows:
(a)	the claims that Fantuan Australia induced or procured the Sellers to breach cl 23.1(a)-(c) of the Asset Purchase Agreement are, inter alia, based upon allegations that:
(i)	the Sellers breached cl 23.1(a)-(c) of the Asset Purchase Agreement (statement of claim, [56]-[58]);
(ii)	the breaches were committed on behalf of the Sellers by the Senior EASI Executives (ie the third to tenth Third Parties)(statement of claim,[59(a)];
(iii)	Fantuan Australia knew of the existence of the Asset Purchase Agreement, inter alia, by reason of the knowledge of the Senior EASI Executives (statement of claim, [50]);
(b)	the claims that Fantuan Australia has used, and continues to use, the alleged ‘Confidential Information’ are, inter alia, based upon allegations:
(i)	that the Senior EASI Executives provided or facilitated access to the alleged Confidential Information to Fantuan Australia (statement of claim, [70]);
(ii)	of knowledge, inter alia, of the Senior EASI Executives (statement of claim, [71(a)];
(c)	the claims that Fantuan Australia assisted and/or participated in breaches of fiduciary duty are based upon allegations of:
(i)	breaches by the Assumed Executives (ie the sixth to eighth and tenth Third Parties)(statement of claim, [76]);
(ii)	a dishonest and fraudulent scheme by, inter alia, EASI Global Ltd (ie the first third party) participated in by the ‘Assumed Executives’ (statement of claim, [77]);
(iii)	knowledge of the Senior EASI Executives being attributed to Fantuan Australia (statement of claim, [46] and [79]).
308	The HungryPanda Companies made a choice not to join these persons as defendants to the Victorian proceeding. This includes the Third Parties, seven of whom are resident in Victoria. This is because the HungryPanda Companies instead seek to join these persons to the High Court proceeding. They already make claims against the Sellers, as respondents, in the High Court proceeding and have taken preliminary steps to add other persons as respondents to the High Court proceeding. This includes the remaining Third Parties in the Victorian proceeding (ie the fifth to tenth Third Parties). This is the choice they have made.
309	In my opinion, the third party proceeding, insofar as it refers to and repeats parts of the statement of claim against the Third Parties, is the consequence of the way in which the HungryPanda Companies chose to make their claims in the Victorian proceeding. As a result, in my opinion, the difficulties caused by the third party proceeding may be attributed to the way in which the HungryPanda Companies chose to make their claims in the Victorian proceeding.  The difficulties include the following:
(a)	the Sellers being vexed by two proceedings;
(b)	the risk of the Sellers taking steps to rely upon the findings and judgment in the Victorian proceeding to make a preclusive plea or pleas and an application in the High Court proceeding to dismiss or permanently stay it, based upon the legal effects of the findings or judgment in the Victorian proceedings, and the resulting risk of wasted time and costs of the High Court proceeding; and
(c)	the burden and inconvenience to those witnesses who would have to prepare and be involved in both the Victorian proceeding and also the High Court proceeding.
310	As a result, these difficulties support a stay of the Victorian proceeding. 
Is the third party proceeding an abuse of process as a result of the third party statement of claim incorporating allegations from the High Court proceeding, and, if so, what is the effect?
311	The relevant paragraphs in the third party statement of claim are paragraphs 19(b) and 21(b). It is important to set out the whole of paragraphs 19 and 21 from the third party statement of claim:
Alleged breach of contract
19. 	Fantuan Australia refers to and repeats as against each of the Sellers and the Senior EASI Executives the allegations in: 
(a) 	paragraphs 30 to 45 and 56 to 60 of the 22 July SoC; and 
(b) 	paragraphs 112 to 134 of the Particulars of Claim filed in the UK Proceeding.
….
Alleged breaches of confidence
21. 	Fantuan Australia refers to and repeats as against each of the Senior EASI Executives the allegations in: 
(a) 	paragraphs 61 to 70 of the 22 July SoC; and 
(b) 	paragraphs 101 to 107 of the Particulars of Claim filed in the UK Proceeding.
312	The Sellers and Executives Third Parties submitted that the third party proceeding is an abuse of the Court’s processes as it refers to and repeats allegations from the particulars of claim in the High Court proceeding. It also submitted these pleas are not relevant to Fantuan Australia’s claims for contribution in the Victorian proceeding as these pleas relate to the damage the subject of the HungryPanda Companies claims in the High Court proceeding and not the Victorian proceeding. They submitted that the ‘current problems arose when, for the purpose of some Third Party Claims, Fantuan Australia adopted allegations made by the English Plaintiffs in the English proceeding.’ As a result, they submitted, in effect, that Fantuan Australia has become the ‘effective proxy’ for the HungryPanda Companies in the High Court proceeding.
313	The Sellers and Executives referred to a number of authorities on abuse of a court’s processes, including the following observations by the majority in Michael Wilson Partners Pty Ltd v Nicholls:
One recognised class of abuse of process is where proceedings are instituted against a party in a second forum when there are proceedings against that party pending in another and the continuance of the second would be an abuse of the process of the first. In such a case, the continuance of the second proceedings would be an abuse if it would be unjustifiably oppressive to the party that is named as defendant in both forums.
314	Fantuan Australia submitted that paragraphs 19(b) and 21(b) are ‘…a red herring for the purposes of this application, they don’t really add anything, nor do they subtract anything. The third party notice on any view of the world conventionally adopts the allegations made against the defendant in this proceeding by the plaintiff in this proceeding…’.
315	Fantuan Australia, by referring to and repeating paragraphs from the particulars of claim, makes claims against the Third Parties that are not otherwise the subject of claims by the HungryPanda Companies against it and not referred to or alleged in the statement of claim in the Victorian proceeding. For example, Fantuan Australia in paragraph 19(b) of the third party statement of claim refers to and adopts alleged breaches of the Asset Purchase Agreement made against the Sellers in paragraphs 112 to 134 of the particulars of claim in the High Court proceeding. This is not limited to cl 23 of the Asset Purchase Agreement which is the subject of the claims by the HungryPanda Companies in the Victorian proceeding. In this context, I refer to paragraph 112 of the particulars of claim in the High Court proceeding. This concerns alleged breaches by the Sellers of the Asset Purchase Agreement concerning the withholding of assets to be transferred to the HungryPanda Companies. None of these matters are alleged by the HungryPanda Companies in the Victorian proceeding.
316	In my opinion, it not necessary to determine whether the impugned sub-paragraphs of the third party statement of claim are an abuse of the Court’s processes on these applications. This is because even if they are, in my opinion, the appropriate remedy would be to strike out the impugned paragraphs and not to stay the third party proceeding.  This is because paragraphs 19(a), 21(a) and also 23 contain allegations that are in the ‘usual form’ of a pleading in a third party statement of claim. That is, they refer to and repeat the allegations in the statement of claim in the Victorian proceeding. These paragraphs are not an abuse of the Court’s processes (ie paragraphs 19(a), 21(a) and also 23). In the event that the third party proceeding is not stayed, paragraphs 19(b) and 21(b), if they are an abuse of the Court’s processes, may be readily dealt with by an application to strike them out. No such an application has been made to date. The Sellers and Executives Third Parties submitted that they reserve their rights to bring such a strike out application.
317	Fantuan Australia also submitted that if the Victorian proceeding proceeds to trial before the High Court proceeding then it will not pursue them.
318	As a result, this is not a factor, as any abuse of process may be readily dealt with prior to trial.
Foreign jurisdiction clause in the Asset Purchase Agreement
319	The Other Executives Third Parties submitted:
(a)	Cl 41.2 of the Asset Purchase Agreement is an ‘exclusive jurisdiction clause’;
(b)	the HungryPanda Companies and the Sellers are parties to the Asset Purchase Agreement;
(c)	the Other Executive Third Parties are non-parties in the sense considered by Spigelman CJ in Global Partners. That is, they are ‘closely connected’ with the implementation of the Asset Purchase Agreement and are not strangers to it;
(d)	the policy considerations underpinning the weight to be given to an exclusive jurisdiction clause upon an application for a permanent stay or dismissal of a proceeding are equally applicable to the temporary sought in the Victorian proceedings;
(e)	where parties have agreed pursuant to contract to submit to the exclusive jurisdiction of a foreign court (and have in fact submitted to the exclusive jurisdiction of an English court), such parties, being the HungryPanda Companies and the Sellers, should be held to their contractual obligations, whether enforced by another party or by means of the exercise of a discretion conferred upon the Court;
(f)	that they do not say that there has been ‘a breach or anything like that’ of cl 41.2;  
(g)	the HungryPanda Companies’ proceeding against Fantuan Australia is a proceeding ‘arising out of or in connection with’ the Asset Purchase Agreement within the terms of cl 41.2;
(h)	the Other Executives Third Parties are not seeking to enforce cl 41.2 of the Asset Purchase Agreement;
(i)	the Other Executives Third Parties are seeking to invoke the Court’s discretion to temporarily stay the Victorian proceeding;
(j)	the Court should weight the existence of the exclusive jurisdiction clause heavily in favour of the Court exercising its discretion whether to grant a temporary stay; and 
(k)	in temporarily staying the Victorian proceeding the Court does no more than give effect to a contractual promise to which the HungryPanda Companies are bound and have conceded themselves to be bound.
320	Fantuan Australia supported the Other Executives Third Parties’ submissions. 
321	The Sellers and Executives Third Parties initially submitted that a stay of the third party proceeding would prevent the third party proceeding from undermining the effect of cl 41.2 of the Asset Purchase Agreement. They submitted that Fantuan Australia’s prosecution of the relevant claims is inimical to the burden of that clause and that this was relevant to the Court’s exercise of discretion. This submission was not otherwise developed. They did not identify how Fantuan Australia’s prosecution of its claims was ‘inimical’ to cl 41.2. During the hearing, however, they submitted:
… and the exclusive jurisdiction clause - that's not really my fight except I just note that there is such a clause and I'm leaving to one side the proper construction of that clause. I think we simply note in our primary submissions that if it's an exclusive jurisdiction clause then Mr Peters' clients have been faithful to it in commencing in the English High Court.
322	The HungryPanda Companies submitted:
(a)	the Other Executives Third Parties and Fantuan Australia are not parties to the Asset Purchase Agreement;
(b)	by reason of cl 35.1 of the Asset Purchase Agreement, the Asset Purchase Agreement does not confer any third party rights, save with respect to the clauses referred to in cl 35.1, which do not include cl 41.2. As a result, it goes without saying that neither Fantuan Australia nor the Other Executives Third Parties can seek to enforce the exclusive jurisdiction clause, or otherwise rely on it in seeking a stay of the Victorian proceeding. In this context, they relied upon a decision of the Court of Appeal in Royal Bank of Scotland PLC v Babcock and Brown; and
(c)	the claims made by the HungryPanda Companies against Fantuan Australia in the Victorian proceeding do not arise out of or in connection with the Asset Purchase Agreement. Accordingly, the exclusive jurisdiction clause is not enlivened.
323	In Global Partners, the Court of Appeal determined an application for leave to appeal against interlocutory orders that had the effect of requiring proceedings to be determined in England. The Court of Appeal considered the terms and effect of an exclusive jurisdiction clause.  There were three respondents (described as BBL, BBI and BBUS), who were not parties to the agreement (ie a partnership agreement) that contained an exclusive jurisdiction clause, but who requested that the court exercise its discretion to grant a stay of proceedings against them based upon the exclusive jurisdiction clause.
324	Spigelman CJ (with whom Giles and Tobias JJA agreed) said that the three respondents were: 
[73] 	…entitled to approach the court, in their own right, to request that the court exercise its discretion to grant a stay. This is so because of their involvement in the affairs of the partnership, as envisaged by the [limited partnership agreement] itself, and the rights conferred upon them as indemnified persons under the [limited partnership agreement].
[74] 	[the applicant] sought to categorise the first three respondents as ‘non parties’. However, there are non parties and non parties. These respondents are not strangers to the [limited partnership agreement].
…
[78] 	Notwithstanding the fact that BBL, BBI and BBUS are not parties to the [limited partnership agreement], they cannot be categorised as members of an undifferentiated group of “non parties”. It may be well that cl 18.11 [ie the exclusive jurisdiction clause] will not apply to other non parties. However, the respondents in the present case are in quite a distinct category.
325	The Other Executives Third Parties and Fantuan Australia are not parties to the Asset Purchase Agreement. The Other Executives Third Parties and Fantuan Australia seek to rely upon cl 41.2 of the Asset Purchase Agreement to request the Court to exercise its discretion to stay the Victorian proceeding. They seek to do so based upon the reasoning of Spigelman CJ in Global Partners.
326	In my opinion, the Other Executives Third Parties and Fantuan Australia are not entitled to approach the Court, in their own right, to request that the Court exercise its discretion to temporarily stay the proceeding based upon cl 41.2. 
327	First, the reasoning of Spigelman CJ in Global Partners is distinguishable as cl 35.1 expressly provides that the Asset Purchase Agreement is not intended to benefit any other person and no other person shall have any right to enforce any of its terms except for certain terms set out in that clause. This does not include cl 41.2.
328	Secondly, the reasoning of Spigelman CJ in Global Partners is also distinguishable as the Other Executives Third Parties and Fantuan Australia are strangers to the Asset Purchase Agreement:
(a)	Fantuan Australia was not incorporated at the time of the Asset Purchase Agreement. It has no connection to the Asset Purchase Agreement.
(b)	The Other Executives Third Parties appear to have been each a senior employee of the Sellers at the time of the Asset Purchase Agreement.  In Global Partners Spigelman CJ found that there was a particular close connection in the circumstances of that case. There is no such close connection between the Other Executives Third Parties and the Asset Purchase Agreement. In my opinion, it is not sufficient that they may have had some involvement in the implementation of the Asset Purchase Agreement.  Many employees of the Sellers presumably had such an involvement. No particular close connection has been identified. 
329	As a result, it is not necessary for the Court to determine other issues such as whether the HungryPanda Companies’ proceeding against Fantuan Australia is a proceeding ‘arising out of or in connection with’ the Asset Purchase Agreement within the terms of cl 41.2, and if so, the further considerations that arise in the exercise of discretion.
330	In my opinion, the Sellers and Executive Third Parties, abandoned, during oral submissions, any reliance upon cl 41.2 in relation to the claims by Fantuan Australia against them. I refer to their oral submission I have earlier referred to in these Reasons.  If I am incorrect, and they did not abandon them, then they did not develop them.  Further, even if I was satisfied that Fantuan Australia’s proceeding against the Third Parties is a proceeding ‘arising out of or in connection with’ the Asset Purchase Agreement within the meaning of cl 41.2, I would not consider this to support a stay of the third party proceeding. This is because:
(a)	the Sellers and Executive Third Parties do not seek to rely upon cl 41.2 against the HungryPanda Companies to seek a temporary stay of the HungryPanda Companies’ claims against Fantuan Australia. The claims against the Sellers and Executive Third Parties are substantially based upon the claims made by the HungryPanda Companies against Fantuan Australia. The Sellers are the only other parties to the Asset Purchase Agreement in addition to the HungryPanda Companies;
(b)	it would be manifestly unjust, in those circumstances to, in effect, take into account cl 41.2 only against Fantuan Australia and stay the third party proceeding, but allow the HungryPanda Companies to continue to prosecute their proceeding against Fantuan Australia.
331	As a result, the foreign jurisdiction clause is not a relevant factor, or, alternatively, is a neutral factor.
Applicable laws to the dispute in the Victorian proceeding
English law
332	Fantuan Australia submitted that cl 41.1 of the Asset Purchase Agreement expressly provides that the Asset Purchase Agreement is governed by and shall be construed in accordance with English law. It submitted that the Court will need to apply English law as it will need to determine whether there have been breaches of the Asset Purchase Agreement as part of the claims against Fantuan Australia that it induced those breaches.   It submitted that this supports a stay of the proceeding.
333	Fantuan Australia also relied upon the following observation of Hammerschlag J, the primary judge in Global Partners:
It is in my view only faintly (if at all) arguable that the substantive law of Australia will play any (let alone a significant) role in the determination of the rights and liabilities of the parties.  It is accepted that English law governs the construction and operation of the Partnership Agreement.  None of the conduct complained of occurred in this jurisdiction.  It is not suggested that any damage was suffered here.  
334	I have set out cl 41.1 earlier in these Reasons. It provides that the Asset Purchase Agreement, including any non-contractual obligations arising out of or in connection with the Asset Purchase Agreement, is governed by and shall be construed in accordance with English law.
335	First, Fantuan Australia did not identify any particular substantive English law that may need to be applied in determining whether the Sellers breached cl 23 of the Asset Purchase Agreement as alleged in the statement of claim at [56(d)], [57(b)] and [58(c)].
336	Secondly, Fantuan Australia did not identify any other particular substantive English law that may need to be applied in determining the HungryPanda Companies’ claims.
337	Thirdly, the observations of Hammerschlag J in Global Partners do not assist Fantuan Australia. Relevantly, in the Victorian proceeding:
(a)	the Court may also need to apply the substantive law of Australia, including concerning, inter alia, accessorial liability for breach of fiduciary duty, damages and injunctive relief;
(b)	the impugned conduct of Fantuan Australia appears, on the present evidence, to have taken place in Australia;
(c)	the first plaintiff is an Australian company and may have suffered damage here.
338	As a result, this a neutral factor.
Australian law
339	Fantuan Australia refers, in its defence at paragraphs 82 and 83, to various evidence in the High Court and Victorian proceeding and then alleges:
84. 	At all material times, section 50 of the Competition and Consumer Act 2010 (Cth) provided that a corporation must not directly or indirectly acquire assets of a person if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market. 
85. 	HungryPanda did not obtain informal clearance nor authorisation from the Australian Competition and Consumer Commission prior to entering into and giving effect to the acquisition of EASI (at least insofar as the transaction affects Australia).
PARTICULARS 
That is to be inferred by reason of the following: 
(i). 	There is no reference to the acquisition on the ACCC’s mergers register nor public informal merger reviews register. 
(ii). 	Fantuan Australia’s points of defence dated 23 March 2022 raised the allegation set out in this paragraph.
(iii).	By orders made on 25 March 2022, the plaintiff was ordered to make general discovery in this proceeding by 19 April 2022. 
(iv). 	By reason of the foregoing, if any communications between HungryPanda (or any of them or their agents) and the ACCC existed, then those documents were required to be discovered. 
(v).	 HungryPanda’s affidavit of documents (being an affidavit of Jinwan (Tina) Sun sworn on 20 April 2022) did not disclose any correspondence between HungryPanda (or their agents) and the ACCC and, by necessary implication, that those documents do not exist and have never existed.
86. 	Further and in the alternative to the matters set out in this Defence, if Ms Sun’s evidence set out above is accepted (which is not admitted), then for the reasons set out in immediately above, HungryPanda’s acquisition of EASI pursuant to the Asset Purchase Agreement (at least insofar as the transaction affects Australia): 
(a) 	may have contravened section 50 of the Competition and Consumer Act 2010 (Cth); 
(b) 	as a consequence, HungryPanda may, among other things, be ordered to divest itself of those assets pursuant to Part VI of the Competition and Consumer Act 2010 (Cth); and 
(c) 	by reason thereof, HungryPanda’s damages (if any) do not extend to loss of profits in relation to a business which it is not lawfully entitled to retain.
340	The HungryPanda Companies referred to Fantuan Australia’s defence concerning s 50 of the Competition and Consumer Act and described it as a ‘curious pleading’ as it does not plead a ‘breach’ of that Act. It then submitted:
…it tends against the stay, because it's a peculiarly Australian provision, a peculiarly Australian defence that Australian courts are suited to deal with, rather than UK courts who have no jurisdiction to hear the matter, in terms of anti-competitive conduct.
341	First, Fantuan Australia does not allege that the HungryPanda Companies have contravened s 50 of the Competition and Consumer Act.  It alleges that they ‘may’ have contravened the provision. Fantuan Australia does not seek any orders or any other relief (eg a declaration) based upon any alleged contravention of s 50 of the Competition and Consumer Act 2010. It has not filed any counterclaim. 
342	Secondly, in the event that the Victorian proceeding is stayed, these allegations would be determined in the Victorian proceeding but not until after the stay comes to an end (eg after the determination of the High Court proceeding). They would not be determined in the High Court proceeding unless the HungryPanda Companies joined Fantuan Australia to the High Court proceeding and sought to make these allegations. They have not expressed any intention of joining Fantuan Australia to the High Court proceeding to date.
343	Finally, in my opinion, these claims may need to be more clearly expressed if they are maintained. Fantuan Australia alleges in paragraph 86(c) of the defence that any damages suffered by the HungryPanda Companies ‘do not extend to loss of profits in relation to a business which it is not lawfully entitled to retain’. This plea relies upon the allegations in paragraphs 86(a) and (b) of the defence that allege that the HungryPanda Companies ‘may’ have contravened s 50 and that they ‘may’ be ordered to divest themselves of assets. The basis for the plea in paragraph 86(c) does not appear to be presently supported by the pleas in paragraphs 86(a) and (b).  
344	As a result, this is not a relevant factor.
Did Fantuan Australia delay in making the application for a stay?
345	The HungryPanda Companies and the Other Executives Third Parties submitted that Fantuan Australia delayed in making its application for a stay. 
346	The HungryPanda Companies also submitted:
Now, since His Honour Justice Riordan made that statement [concerning an expedited trial], the defendant has taken advantage of that statement to oppose the granting of an interlocutory injunction.  The defendant sought programming orders as to points of claim to exchange documents and take other steps and a trial date has been proposed of 31 January 2023.  There's an indication of an early trial date.  That's the orders of 28 June.  Now, no stay was sought until 7 June.
347	It is convenient to set out the following matters relevant to this issue:
(a)	the High Court proceeding was commenced on 16 February 2022. The claims concerned breaches by the Sellers of the Asset Purchase Agreement;
(b)	the Victorian proceeding was commenced on 28 February 2022;
(c)	on 15 March 2022, the HungryPanda Companies filed points of claim in the Victorian proceeding. The claims against Fantuan Australia were based upon an alleged breach of confidence. No claim was based upon inducing or procuring breaches by the Sellers of the Asset Purchase Agreement;
(d)	on 20 April 2022, the HungryPanda Companies filed amended points of claim in the Victorian proceeding. As I have already said in these Reasons, the amended points of claim set out the claims against Fantuan Australia by making extensive allegations concerning the involvement of the Third Parties. Further, the claims set out in the amended points of claim:
(i)	concerned a substantial number of additional claims against Fantuan Australia to those in the points of claim, including claims based upon inducing or procuring breaches by the Sellers of cl 23.1 of the Asset Purchase Agreement; and
(ii)	set out that ‘[o]n 16 February, HungryPanda commenced proceedings in the High Court of Justice of England and Wales against the Sellers alleging that the Sellers had failed to transfer certain assets in breach of the Asset Purchase Agreement, and had otherwise acted in breach of post-completion restrictions, including cl 23.1…’.
(e)	on 12 May 2022, Fantuan Australia’s solicitors sent a letter to the HungryPanda Companies’ solicitors referring to the amended points of claim and the High Court proceeding. It stated, inter alia, that the breaches alleged by the HungryPanda Companies against the Sellers in the High Court proceeding are the same breaches that the HungryPanda Companies allege were induced or procured by Fantuan Australia and asked them how their clients intended to ‘redress the issues caused by the hearing of three separate proceedings [ie including the Federal Court proceeding] dealing with the same facts and allegations.’ Further correspondence was then exchanged from the date of that letter to 3 June 2022.
(f)	on 15 June 2022, Fantuan Australia filed its summons for a temporary stay.
348	In my opinion, Fantuan Australia delayed in making its application for a stay but that delay was not significant in the context of these proceedings. This is because, upon the filing of the amended points of claim, Fantuan Australia was on notice that the claims against it now included inducing or procuring breaches by the Sellers of cl 23.1 of the Asset Purchase Agreement, being the breaches alleged by the HungryPanda Companies against the Sellers in the High Court proceeding.  Fantuan Australia then took 3 weeks to raise these issues with the HungryPanda Companies. It then took 2 weeks to file the application for a stay after the parties had exchanged correspondence on this issue.
349	As a result, this is a factor in favour of a stay of the third party proceeding, but only marginally so.
SUMMARY OF FACTORS
350	It is convenient to provide a brief summary of the factors for and against a stay of the Victorian proceeding and a stay only of the third party proceeding.
351	The following are significant factors in support of a stay of the Victorian proceeding:
(a)	the Victorian proceeding and the High Court proceeding concern a substantial number of alleged common facts. It is undesirable for this Court and the High Court to, in effect, compete to see which one determines those common facts first. This may also result in inconsistent findings on those alleged common facts;
(b)	the Victorian proceeding and the High Court proceeding concern a substantial number of similar issues. The law should strive to avoid a multiplicity of proceedings concerning similar issues;
(c)	the HungryPanda Companies bring two proceedings in two jurisdictions concerning a common substratum of facts and a substantial number of alleged common facts and similar issues. This is the result of choices made by them concerning forum for their claims against the Sellers;
(d)	the material effect of the determination of the High Court proceeding first, as a practical matter, is likely to be greater than the determination of the Victorian proceeding first.
352	There are also factors in support of a stay of the Victorian proceeding that may be attributed to the way in which the HungryPanda Companies chose to make their claims in the Victorian proceeding:
(a)	the Sellers being vexed by two proceedings. This is a significant factor;
(b)	the risk of the Sellers taking steps to rely upon the findings and judgment in the Victorian proceeding to make a preclusive plea or pleas and an application in the High Court proceeding to dismiss or permanently stay it, based upon the legal effects of the findings or judgment in the Victorian proceedings, and the resulting risk of wasted time and costs of the High Court proceeding. This is a marginal factor; and
(c)	the burden and inconvenience to those witnesses who would have to prepare and be involved in both the Victorian proceeding and also the High Court proceeding. This is a marginal factor.
353	The following are significant factors against a stay of the Victorian proceeding:
(a)	a stay will substantially delay the Victorian proceeding which is contrary to the public interest in the timely and efficient determination of legal proceedings. This is especially the case given the allegations of serious misconduct. The Victorian proceeding is further advanced than the High Court proceeding;
(b)	a stay will likely cause a disadvantage to the HungryPanda Companies as it will substantially delay the determination of their claims and will deprive them of the opportunity to obtain meaningful injunctive relief in the Victorian proceeding. Fantuan Australia will be able to continue to engage in the impugned conduct;
(c)	a stay may result in work done, including costs incurred, in the Victorian proceeding being wasted;
(d)	I accept the HungryPanda Companies’ submissions that there is no evident prejudice to Fantuan Australia from the continuation of the Victorian proceeding.
354	Fantuan Australia’s delay in:
(a)	making the application for a stay; and
(b)	commencing the third party proceeding;
are marginal factors in support of a stay of only the third party proceeding.
355	It is a marginal factor against a stay of only the third party proceeding that Fantuan Australia would have the burden of proving its claims against the Third Parties in a separate trial without the benefit of the findings made in the trial between the HungryPanda Companies and Fantuan Australia. The following factors are significant factors against a stay only of the third party proceeding:
(a)	the HungryPanda Companies chose to commence a proceeding against Fantuan Australia by making claims against it that rely upon the alleged wrong doing of others (ie the Third Parties) without joining them as defendants to their claims. The third party proceeding is a consequence of that choice;
(b)	a stay of the third party proceeding has the potential to significantly compound the multiplicity of proceeding in relation to similar issues;
(c)	a stay of the third party proceeding may cause a substantial disadvantage to Fantuan Australia:
(i)	Fantuan Australia may be exposed to the burden and expense of two trials in this Court;
(ii)	the Third Parties would not be bound by the decision made in the proceeding between the HungryPanda Companies and Fantuan Australia and there is a risk Fantuan Australia may be found liable to the HungryPanda Companies but fail in its claims against the Third Parties. There is a risk of inconsistent findings in this Court;
(d)	the objects of the third party procedure may be defeated if the third party proceeding is stayed.
EXERCISE OF DISCRETION
356	In all of the circumstances, having weighed the various factors I have addressed in these Reasons, I am satisfied that it is in the interests of justice to temporarily stay the Victorian proceeding and not to only stay the third party proceeding.  I have also concluded that practical considerations based on common sense and fairness dictate that the High Court proceeding should proceed first. In particular, I emphasise the following matters.
357	First, the Victorian proceeding and the High Court proceeding are each a very substantial proceeding.  The HungryPanda Companies are parties to both proceedings and both proceedings concern a common substratum of fact. They have a substantial number of alleged common facts and similar issues and have some common parties.  In those circumstances:
(a)	it is undesirable for this Court and the High Court to, in effect, compete to see which one determines those common facts first.  This may also result in inconsistent findings on those alleged common facts; and 
(b)	the law should also strive to avoid a multiplicity of proceedings concerning similar issues.
358	Secondly, presently the HungryPanda Companies bring two proceedings in two jurisdictions concerning a common substratum of facts and a substantial number of alleged common facts and similar issues.  This is the result of choices made by them concerning forum for their claims against the Sellers.
359	Thirdly, the HungryPanda Companies chose to commence a proceeding in this Court only against Fantuan Australia.  They chose to not make claims against the other persons and entities who are alleged by the HungryPanda Companies to have engaged in wrongful conduct and which conduct forms the basis of their claims against Fantuan Australia.  The HungryPanda Companies describe this conduct as ‘serious misconduct’.  This includes conduct by, among others, the Third Parties.  The HungryPanda Companies have chosen to, in effect, make those and similar claims in the High Court proceeding.  It has already made claims against the Sellers in the High Court proceeding and are taking steps to join the remaining Third Parties, among others, to the High Court proceeding to make those claims against them.  The third party proceeding, insofar as it refers to and repeats parts of the statement of claim against the Third Parties, is the consequence of the way in which the HungryPanda Companies chose to make their claims in the Victorian proceeding.  In my opinion, the difficulties caused by the third party proceeding may be attributed to the way in which the HungryPanda Companies chose to make their claims in the Victorian proceeding.  These are the difficulties I have previously addressed in these Reasons.
360	Fourthly, a stay only of the third party proceeding may cause significant disadvantage to Fantuan Australia for the reasons I have already given.  The objects of the third party procedure may also be defeated if only the third party proceeding is stayed.
361	Fifthly, a stay only of the third party proceeding has the potential to significantly compound the multiplicity of proceedings in relation to similar issues.  This is because it may result, as a practical matter, in a separate trial of the third party proceeding.
362	Sixthly, the allegations in the third party statement of claim, that refer to and repeat paragraphs from the particulars of claim in the High Court proceeding, and that are impugned as an abuse of process, may be appropriately addressed upon an interlocutory application (eg a strike out application).  Their existence in the third party statement of claim does not support a stay of the third party proceeding.
363	Seventhly, a stay only of the third party proceeding would not reduce the number of alleged common facts and similar issues in the Victorian proceeding and the High Court proceeding except insofar as it concerns those allegations in the third party statement of claim that refer to and repeat paragraphs from the particulars of claim in the High Court proceeding, and that are impugned as an abuse of process. As I have already said these may be appropriately addressed upon an interlocutory application (eg a  strike out application).
364	Eighthly, the material effect of the determination of the High Court proceeding first, as a practical matter, is likely to be greater than the determination of the Victorian proceeding first.  It is the more substantial proceeding.
365	Ninthly, I do not consider that Fantuan Australia’s delays in making the application for a stay and in commencing the third party proceeding are significant factors. They are marginal factors in favour of a stay only of the third party proceeding.
366	Tenthly, a stay of the Victorian proceeding is likely to cause significant disadvantage to the HungryPanda Companies as it will substantially delay the determination of their claims and will deprive them of the opportunity to obtain meaningful injunctive relief in the Victorian proceeding. I accept a stay of the Victorian proceeding may also result in wasted time and costs for the HungryPanda Companies. In my opinion, these disadvantages:
(a)	are outweighed by the other significant factors in support of a stay of the Victorian proceeding; and
(b)	I take into account that the damages in the High Court proceeding may be a significant remedy.
367	Eleventhly, the observations made by Riordan J on 3 March 2022 about an expedited trial being in the parties’ interests, and the course adopted by his Honour at that time of having an expedited trial and not determining the claim for interlocutory injunctive relief, were made in the context of the circumstances at that time and have been overtaken by developments in the Victorian proceeding and the High Court proceeding.
368	Twelfthly, although there is no evident prejudice to Fantuan Australia from the continuation of the Victorian proceeding, there are other significant factors in support of a stay of the Victorian proceeding.
369	As a result, I am satisfied that I should exercise my discretion to:
(a)	order a stay of the Victorian proceeding until further order. This means that if there is a change in circumstances concerning the Victorian proceeding or the High Court proceeding which make it appropriate to lift the stay the HungryPanda Companies, or any other party, are at liberty to apply to end the stay of the Victorian proceeding; and
(b)	not to order only a stay of the third party proceeding in the Victorian proceeding.
370	Accordingly, I will exercise my discretion to temporarily stay the Victorian proceeding until further order.
CONCLUSION
371	In conclusion, I will stay the Victorian proceeding until further order.
372	I will hear from the parties on the precise form of order and on costs.  The parties are requested to confer and provide a draft form of order, or in the absence of agreement, forms of order and submissions (limited to 3 pages), to chambers by 4:00pm on 24 March 2023.

SCHEDULE OF PARTIES

HUNGRYPANDA AU PTY LTD (ACN 630 315 132)	First Plaintiff	
		
HUNGRYPANDA JAPAN LTD (a company incorporated in Japan with company number 1200-01-232400)	Second Plaintiff	
		
HUNGRYPANDA (NZ) LTD (a company incorporated in New Zealand with company number 6570802)	Third Plaintiff	
		
- and -		
		
FANTUAN AUSTRALIA PTY LTD (ACN 656 561 492)	Defendant	
		
EASI GLOBAL LIMITED (HK) (a company incorporated in Hong Kong with company number 2754411)	First Third Party	
		
CHONGQING MEIKELAIFUYIREER TECHNOLOGY CO. LTD. 
(a company incorporated in China with company number 91500000MA60CREU1D)	Second Third Party	
		
YAN (LINDA) LIU	Third Third Party	
		
JIE SHEN	Fourth Third Party	
		
JUNQUAN (PETER) LIU	Fifth Third Party	
		
XIAOYUN (SHARON) WANG	Sixth Third Party	
		
HELIN (WILL) WANG	Seventh Third Party	
		
YINGMIN (EVAN) LI	Eighth Third Party	
		
YI (GARY) GE	Ninth Third Party	
		
AIJUAN (ANNIE) SHI	Tenth Third Party