Ford Motor Company of Australia Limited v Tristar Steering & Suspension Australia Limited

REASONS FOR JUDGMENT 1 The respondent ("Tristar") served on the applicant ("Ford") a demand pursuant to s 459E(1) of the Corporations Act 2001 (Cth) ("the Act") claiming that Ford owed Tristar $2,185,109.44. This sum represented the total amount of fourteen debts described in the demand by reference to specified invoice numbers and dates. In the demand Tristar required Ford within 21 days after service of the demand to pay the total of the amounts of the debts or to secure or compound for that total to Tristar's reasonable satisfaction. The demand was served on Ford on 10 February 2003. On 3 March 2003 Ford filed an application with the Court pursuant to s 459G and s 459J(1)(b) of the Act seeking an order that the demand be set aside or alternatively that the time within which Ford was to comply with the demand be extended until 21 days after the determination of an appeal pending before the Full Federal Court. In that appeal Ford is the appellant and Tristar and Arrowcrest Group Pty Ltd ("Arrowcrest") are the respondents. 2 The grounds set out in Ford's application were that: · the amounts set out in the demand were the subject of a genuine dispute between the parties; · Ford had offsetting claims against Tristar; · by reason of the Full Federal Court appeal there were other reasons pursuant to s 459J(1)(b) of the Act for setting aside the demand. 3 At the same time that Tristar served the demand on Ford, Arrowcrest served a separate demand on Ford claiming that certain debts were due to it. An application was filed by Ford on 3 March 2003 to set aside the demand served by Arrowcrest. The issues raised by the Arrowcrest demand have been resolved between the parties as have some of the debts or issues raised by the Tristar demand. 4 In order to understand the grounds raised by Ford for setting aside Tristar's demand it is necessary to explain the background which has led to the present appeal pending in the Full Federal Court between Ford as appellant and Tristar and Arrowcrest as respondents. 5 Tristar and Arrowcrest had entered into separate agreements with Ford for the supply of motor vehicle components to Ford. Arrowcrest supplied wheels pursuant to an agreement dated 19 July 1999. Tristar supplied steering gear components pursuant to an agreement dated 3 December 2001. Ford either proposed to terminate or purported to terminate the two agreements. Arrowcrest and Tristar commenced a proceeding against Ford in the Federal Court on 5 September 2002 in which they sought mandatory injunctions to compel Ford to perform the agreements and to enjoin Ford from terminating the agreements, which proceeding was ultimately heard by Heerey J. An application for interlocutory injunctions to preserve the status quo pending the hearing of the application was dismissed. 6 Arrowcrest and Tristar pursued their claims for specific performance of the agreements with Ford on the grounds that the agreements had been wrongfully terminated. The proceeding was given an expedited hearing and the trial commenced on 21 October 2002. Arrowcrest and Tristar filed an amended statement of claim in which Tristar set out the conduct and a number of representations upon which it relied which led to the making of an agreement on 3 December 2001 for the long‑term supply by Tristar of power rack and pinion steering gears to Ford. Tristar alleged that Ford's conduct and representations constituted a contravention of s 51AA(1) and s 52 of the Trade Practices Act 1974 (Cth) ("the TPA") and as a result of such conduct and representations Tristar had suffered loss and damage. In the course of pleading those causes of action, the amended statement of claim, relevantly, set out the following allegations: "48. By a letter dated 16 October 2001 Ford provided tooling order nos. 334011 and 345984 to Tristar subject to its standard terms and conditions (May 2000 issue). PARTICULARS (a) Purchase order 334011 was for tooling dies and fixtures of a value of $851,363 plus GST due to be supplied by Tristar by 15 April 2002; (b) Purchase order 345,984 was for tooling for an oil bottle. The purchase order was for $6,800 plus GST. 49. Induced by and in reliance upon the tooling purchase order and the second Ford representation, Tristar supplied tooling pursuant to that purchase order but has received no payments therefrom. … 62. By reason of the matters aforesaid the Second Applicant alternatively the Applicants, have suffered loss and damage. PARTICULARS (a) Tristar incurred investment in its plant and equipment described in the particulars appended to paragraph 56 above, to produce the Grizzly steering gears (b) has further failed neglected and refused to pay Tristar for tooling ordered by Ford, details of which have already been provided. (c) Tristar did not pursue other contracts for supply of motor vehicle components that might otherwise have been supplied during the whole or a part of the period cause by the LTA." 7 Ford delivered an amended defence and cross‑claim in which it responded to the allegations in pars 48, 49 and 62 of the amended statement of claim in the following terms: "48. It admits, subject to the production of the tooling orders dated 16th October, 2001 and reference to their full terms, that Ford sent those tooling orders to Tristar and says further that such tooling orders were provided as a result of: (a) the continuing threat by Tristar to cease supply of AU steering gears; and (b) the illegitimate pressure and/or unconscionable conduct of Tristar but otherwise it does not admit any of the allegations contained in paragraph 48 thereof. PARTICULARS Ford relies upon the affidavit sworn 27th September, 2002 by Sam Casabene, Anthony Simpson and Eileen Keane and filed herein. 49. It denies each of the allegations contained in paragraph 49 thereof and says further that: (a) Tristar knew that Ford had already entered into a binding contract with Delphi in December, 1998 to supply Barra steering gears; (b) Tristar had full knowledge of the illegitimacy and unconscionability of the pressure exerted by Tristar upon Ford and of the fact that Ford's preparedness to negotiate with Tristar to supply Barra steering gears was the result solely of that pressure. PARTICULARS Ford relies upon the affidavit sworn 27th September, 2002 by Sam Casabene, Anthony Simpson and Eileen Keane and filed herein. … 62. It denies each of the allegations contained in paragraph 62 thereof and says further that the profits made by Tristar on goods supplied by it to Ford, if the matters alleged in paragraph 71 thereof are true, well exceed the expenditure alleged in paragraph 56 thereof and the matters alleged in paragraph 62 thereof. Ford's cross‑claim alleged that its termination of the agreements was lawful and it sought damages against Arrowcrest and Tristar on a number of bases not relevant for present purposes. 8 Tristar contended that par 62 of the amended statement of claim was not the relevant pleading which alleged the loss and damage consequent upon the wrongful termination. Rather, the pleading was to be found in par 71 which set out a claim for loss and damage based upon loss of profits. That allegation was denied by Ford in its defence. 9 Ford contended before Heerey J that the Tristar agreement had been procured as a result of Tristar's unconscionable conduct and that Ford was entitled to terminate the agreement as it had done on 3 September 2001 or had otherwise duly avoided it. 10 Ford also filed evidence in the proceeding that it had not completed the testing of the Tristar steering gears by the time Ford terminated the Tristar agreement. 11 Heerey J directed the parties to file a statement of issues identifying the principal questions which the parties required him to decide. This direction was given on the basis that the matter was urgent and it was proposed that his Honour would deliver a short form judgment addressing each of the issues identified by the parties as soon as possible after the conclusion of the trial. Final submissions were made on 19 November 2002 and judgment was delivered on 25 November 2002, which judgment was followed by another judgment on 17 December 2002 providing further reasons and making final orders. 12 The following paragraphs of the statement of issues are relevant for present purposes: "18. (a) Were there any exceptional circumstances existing as at 3 September, 2002 entitling Ford to terminate the Tristar agreement; and/or (b) Was Ford entitled to terminate the Tristar purchase orders in accordance with clause 27(a) of Ford's standard terms pursuant to the notice dated 3 September, 2002? 19. If yes to either part of question 18, did a termination of the Tristar purchase orders in accordance with clause 27(a) of Ford's standard terms have the effect of terminating the Tristar agreement? 20. If no to each part of question 18:- (a) is Tristar entitled to an order for specific performance or mandatory injunctions in connection with the Tristar agreement; (b) is any, and if so what, part of any loss or damage claimed by Tristar the product of its own wrongful conduct; and/or (c) did Tristar suffer any, and if so what, loss and damage recoverable from Ford. … 25. Did the conduct of Ford between July, 2001 and September, 2002 by which Ford sought to establish alternate sources of supply of steering gears and conceal its intention to terminate the steering gears LTA: - (a) breach any express or implied term of the Tristar agreement; (b) mislead or deceive Tristar contrary to the TPA; and 26. If yes to either part of question 25, to what relief is Tristar entitled to any, and if so what, relief [sic]: - (i) by way of damages; (ii) in equity; and/or (iii) pursuant to sections 80 or 87 of the TPA as a result of such misrepresentations? 13 Heerey J answered these questions in the following terms: "18. … As to (a), No. … As to (b): No. … 19. … Unnecessary to answer. 20. As to (a), No. … As to (b), None. Tristar's loss and damage flows from Ford's breach of the Tristar agreement. As to (c), $12 million. The parties did not raise discrete issues for determination in relation to damages and my response will be correspondingly general. There was no dispute as to the appropriate measure of damages, that is to say the profits Tristar would have made over the term of the Tristar agreement had it not been wrongfully terminated by Ford. Nor did Ford's expert, Mr Banks, dispute the methodology adopted by Tristar's expert Mr Edwards. The main attack by Ford was based on what it said was the inadequacy and unreliability of the information and records supplied by Tristar to Mr Edwards. … … 25. … As to (a), in respect of seeking alternate sources of supply, No. … As to (b), No in respect of seeking alternate sources of supply, but Yes (prior to 3 December) in respect of concealing its intention. … 26. … As to (i), Yes. However, damages under this head are merged into Tristar's damages claim for breach of the Tristar agreement. By its loss of profit claim Tristar will be put back into the same position as if the Tristar agreement had been performed by Ford. As to (ii), No, for the reasons already discussed. As to (iii), No, apart from damages." 14 Relevantly, questions 25 and 26 of the statement of issues raised Tristar's entitlement to damages under the TPA and required Heerey J to determine what loss, if any, Tristar suffered as a result of Ford's conduct between July 2001 and September 2002 which period included the delivery by Ford of tooling orders to Tristar. In answering 26(i), Heerey J noted that damages under the head of Ford's misleading and deceptive conduct were merged into Tristar's damages claim for breach of the Tristar agreement. Heerey J said that by its loss of profit claim Tristar would be put back in the same position as if the Tristar agreement had been performed. 15 The affidavits filed by Tristar for the purpose of the proceeding before Heerey J included an affidavit of Vincent Chi‑Hock Kong sworn 16 October 2002 in which Mr Kong set out a table listing invoices from Tristar to Ford together with copies of the invoices referred to which had not been paid by Ford. Those invoices included invoice No 133099 dated 12 September 2002 for $842,849.37, invoice No 133238 dated 30 September 2002 for $6,732.00 and two invoices dated 15 October 2002, No 133356 for $93,649.93 and No 133357 for $748.00. This affidavit was filed before the statement of issues had been the subject of consideration or agreement. The demand served on Ford required the payment of the total of fourteen specified invoices, including the four invoices referred to in Mr Kong's affidavit. 16 During the trial, discussions occurred between counsel for the parties in relation to the payment for products which had been supplied by Arrowcrest and Tristar to Ford. These products can be described generally by reference to the categories tooling, parts and stockobsolescence. There is a dispute between the parties as to what was the subject of discussions between counsel and what was the subject‑matter of any agreement which may have been reached. It is sufficient for present purposes simply to note that there is a dispute between the parties as to the content of the discussions and whether any agreement was made which bound Ford to pay for the products. 17 There is a difficulty in any event in relation to what is claimed to be the agreement between counsel in relation to the tooling invoices. On 19 November 2002, the date of final submissions, Tristar's solicitors wrote to Ford's solicitors in relation to the proceeding in the following terms: "We refer to your letter to us yesterday in response to our letter dated 7 November 2002 to you relating to warranty payments. We confirm that the matters set out in your letter relating to the AU Warranty are acceptable to Tristar. As discussed between counsel, the payment is to await judgment on the parties' other claims between each other (as is the case with several overdue payments owing by Ford to Tristar in relation to tooling and the like). …" What is not clear is what was to occur after judgment was delivered. 18 On 17 December 2002 Heerey J pronounced judgment for Arrowcrest and Tristar against Ford which included judgment for Tristar in the sum of $12 million together with interest. 19 Thereafter Arrowcrest and Tristar pressed Ford for the payments claimed to be due for the outstanding products and outstanding invoices. 20 On 31 January 2003 Ford filed a notice of appeal and paid the sums payable pursuant to the judgment. 21 Arrowcrest has accepted that the demand it served on Ford should be set aside. Tristar and Ford have resolved their dispute in relation to the invoices for parts. They have agreed that there is an issue to be resolved in relation to stock obsolescence and the only dispute which falls for determination is the dispute relating to the invoices for tooling. 22 Ford submitted that the demand, insofar as it relates to the tooling invoices, should be set aside for the following reasons: · the indebtedness of Ford for tooling was before the court in the proceeding before Heerey J, it was pleaded and sought to be proved in that proceeding; · the amount due for the tooling was taken up in the calculation of damages by Heerey J; · the statement of issues did not make the pleadings irrelevant; · an Anshun estoppel (Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589) can now be raised as, in any event, the tooling issue should have been raised before Heerey J; · there is an appeal on foot which was filed before the demand was served. 23 Tristar submitted that: · the amount due for the tooling was not claimed in the proceeding before Heerey J; · the statement of issues did not include any claim for the tooling which was to be dealt with by the parties later; · there was an agreement that the tooling would be paid for by Ford after the proceeding was resolved; · it was not unreasonable, in Anshun terms, not to have raised the claim for tooling in the proceeding before Heerey J having regard to the urgency with which the matter was brought on for hearing and the fact that there was no issue of fact or law in relation to the tooling. 24 Tristar's case was essentially that orders placed for the tooling were not the subject of the proceeding before Heerey J and that Ford had acknowledged that it would pay for the tooling. According to Tristar, Ford placed purchase orders for the tooling on 18 October 2001 (which order was revised on 13 June 2002) and 13 August 2002. The total amount to be paid for the tooling was $943,979.30. 25 The tooling needed to be fabricated to enable Tristar to manufacture steering gears for Ford's "Barra" model Falcon vehicle. The tooling was fabricated and approved by Ford and was used to manufacture steering gears. An issue arose as to the manner in which the payment for the tooling was to be made and as to whether a progress payment was to be made. Tristar produced an email from Ms Eileen Keane of Ford in which Ms Keane acknowledged that the first payment of 90% would occur "on submission of PSW". This was a reference to a document entitled "Part Submission Warrant" which was sent to Ford on 13 August 2002. Tristar contended that Ford has not disputed, nor has it questioned, that it ordered the tooling, that the amount to be paid for it was agreed, that the tooling was fabricated, that it was to Ford's satisfaction and that Ford has acknowledged its obligation to pay. 26 However, Ms Jennifer Linsten, the Corporate Secretary and Legal Manager of Ford, has sworn that the debt for the tooling is disputed by Ford. Ms Linsten said that Tristar has not offered or sought to provide to Ford any of the tools the subject of the claim, even though they remain the property of Ford. Tristar led evidence that the tooling had been used. 27 There was no issue between the parties as to the relevant principles of law to apply. The key issue to be determined in accordance with s 459H(1) of the Act is whether there is a genuine dispute as to the existence or the amount of the debt or whether there is an offsetting claim: John Shearer Limited v Gehl Company (1995) 60 FCR 136 at 139. Although the Court must be satisfied that there is a genuine dispute between the parties, it should not enter into a detailed consideration as to the merits of the relevant dispute. Rather, the Court is required to determine that there is a dispute and that it is genuine: Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290 at 295; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 787. 28 It should also be noted that s 459J(1)(b) of the Act confers upon the Court a wide and unfettered discretion to set aside a statutory demand. In Eumina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454 Emmett J held that s 459J(1)(b) applied where a company which had received a statutory demand had asserted an offsetting claim which had not been accepted at trial but was the subject of a special leave application. His Honour was satisfied that the appeal was based on reasonable and arguable grounds and that, if the appeal was ultimately successful, the existence of the offsetting claim would be demonstrated. 29 I consider that there is a genuine issue to be tried as to whether the claim for the amounts due on the relevant invoices for tooling was before Heerey J and in fact was determined by him in the sense that he took the amount claimed for the tooling into account in determining the amount of damages to be awarded to Tristar. Although there was no specific claim brought in contract for the amount of the tooling payable by reference to the invoices, there was the somewhat curious claim in respect of the costs of the tooling couched in terms of loss suffered as a result of misleading and deceptive conduct. This is found in pars 48 and 49 of the amended statement of claim (par [6] above). Counsel for Tristar (who did not settle the amended statement of claim) acknowledged that the formulation of the claim in this way was peculiar and conceded correctly that pleading the matter relating to the tooling costs this way was misconceived. Counsel nevertheless contended that tooling was not pursued as a real issue, as a breach of a contractual obligation is not properly characterised as a loss and also because no loss could be established unless insufficient profits were established on the loss of profits claim and an advantage was demonstrated from manufacturing the tooling. However, the fact remains that a claim was made in relation to tooling, the amount due for tooling was claimed as an item of loss and damage in par 62 of the amended statement of claim and, according to Heerey J's reasons for judgment, those damages merged in the loss of profits awarded in respect of the breach of agreement claim. 30 A distinction needs to be drawn between, on the one hand, whether the actual claim made in pars 48 and 49 of the amended statement of claim, namely that Tristar has not been paid for supplying the tooling, was one of the issues recorded in the statement of issues which Heerey J determined, and on the other hand, whether Heerey J took into account the amount not paid for the tooling in the calculation of the damages awarded to Tristar. I am satisfied that Heerey J did not deal with, or determine specifically as an issue, the allegations raised in pars 48 and 49 of the amended statement of claim as a contractual claim. 31 However, whether Heerey J took into account the amount due for the tooling in the calculation and assessment of the loss and damage awarded to Tristar is more problematic. Although question No 25 does not include within it the allegations raised in pars 48 and 49 of the amended statement of claim, I consider that it is arguable that Heerey J may have rolled up the amount due for the tooling into the damages awarded to Tristar in his affirmative answer to question No 25 that Ford's conduct, there identified, misled or deceived Tristar contrary to the TPA. Paragraphs 48 and 49 of the amended statement of claim formed part of the material allegations of fact upon which par 62 of the amended statement of claim was predicated. 32 Put another way, it was alleged in par 62 that by reason of "the matters aforesaid", that is to say, the matters preceding par 62, Tristar suffered the loss and damage there particularised. This included Ford's failure to pay for the tooling. Heerey J appears to have decided that Ford was guilty of misleading and deceptive conduct as described in his Honour's answer to question 25(b) and to have accepted that there were consequent damages to which Tristar was entitled, which damages had merged into Tristar's damages claim for breach of the Tristar agreement. If these damages for misleading and deceptive conduct were as pleaded in par 62 of the amended statement of claim, then Heerey J's conclusion appears to be that the damages claim for Ford's failure to pay Tristar for the tooling costs (which damages were particularised in par 62), has merged into Tristar's damages for breach of the Tristar agreement (which damages were particularised in par 71). I consider it to be arguable that this has occurred. 33 I turn to the alternative ground argued that, in any event, Tristar is estopped, on an Anshun principle, from maintaining the claim for tooling costs in a separate proceeding. The Anshun principle may be shortly stated in the terms that there will only be an estoppel against bringing a cause of action or raising a defence if the matter raised in the second or later proceeding, whether it be by way of defence or asserted cause of action, is so relevant to the subject‑matter of the first proceeding that it would have been unreasonable not to rely upon it in the first proceeding: Port of Melbourne Authority v Anshun Proprietary Limited (supra) at 602; Boles v Esanda Finance Corporation Ltd (1989) 18 NSWLR 666 at 673‑674; Ling v Commonwealth (1996) 68 FCR 180 at 182, 188. 34 Tristar submitted that at all times it acted reasonably in not prosecuting the tooling claim in the hearing before Heerey J and that it was not unreasonable not to have brought the claim forward for determination in that proceeding at that time. Tristar referred to the following factors: · the first proceeding was primarily a claim for specific performance following wrongful termination and no contractual claim for the tooling was made or pursued, hence there was very little overlap between the two causes of action; · the first proceeding was conducted in urgent and truncated circumstances; · the parties agreed on the issues to be determined; · the parties were at all times aware of the claim for the tooling costs and proceeded on the basis that it would not be determined in the first proceeding. 35 The application of the Anshun principle is somewhat unusual in the present circumstances in that the parties agreed on the issues to be determined by the court by reference to the statement of issues. The majority of the High Court in Anshun rested their principle on the basis of unreasonableness although the other members of the Court, Murphy and Brennan JJ, reached the same result as the majority but not by the route of unreasonableness. However, it may be that the Anshun principle will apply notwithstanding the explicit or implicit agreement of the party against whom the cause of action is asserted in the second proceeding that the cause of action not be raised in the first proceeding. This is because underlying the Anshun principle is a public policy issue which may apply independently of the acts of the parties, namely that it is in the interests of the administration of justice that all issues which properly belong to the subject‑matter of litigation be brought forward at the one time, not only to avoid the possibility of inconsistent decisions but also on the ground of providing for an efficient use of a scarce resource which is not infinite, namely, court resources and judicial time. 36 As Samuels JA pointed out in Boles v Esanda Finance Corporation Limited (supra), the test of unreasonableness adopted by the High Court in Anshun "can scarcely be regarded as the conceptual foundation for a principle of law". His Honour went on to note that the test of unreasonableness may not be incompatible (indeed he thought it was consistent) with the views expressed by Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446 at 466 which founded the rule of res judicata upon "broad considerations of public policy". Those principles were found in the Latin maxims "interest reipublicae ut sit finis litium" and "nemo debet bis vexari pro eadem causa" which translate generally as the State or public has an interest in there being an end to litigation and that no one should be proceeded against twice for the same cause of action. 37 In King v Lintrose Nominees Pty Ltd [2001] 4 VR 619 Callaway J adopted the same approach. His Honour said at 626: "… for the better view is that neither res judicata nor that principle [in Anshun's case] depends on niceties but rather that they are both rules of public policy based on the principles expressed in the maxims interest reipublicae ut sit finis litium and nemo debet bis vexari pro eadem causa." 38 These observations, in my view, support the proposition that there is underpinning the Anshun principle not only the aim of avoiding the possibility of inconsistent decisions but also the desire to maximise the use of scarce and finite judicial resources. Put another way, not only did the parties have an interest in having all relevant claims brought together in the one proceeding, there is also the interest of the public in ensuring that recourse to its judicial system be maximised as efficiently as possible. This underlying principle was recognised by Kenny JA (with whom Phillips JA agreed) in Gibbs v Kinna [1999] 2 VR 19 where her Honour said at 29: "It should, I think, be borne in mind that whilst the principle discussed in Anshun's case is designed to foster public and private interests by encouraging parties to advance all their related claims or defences at the one time, thereby diminishing unnecessary duplication of curial and other effort, it seeks to meet these objectives by terminating a litigant's right to have a court adjudicate upon the merits of a claim." 39 The precise scope of the Anshun principle is unclear. In King v Lintrose Nominees Pty Ltd (supra) Callaway JA said at 627: "I am conscious that the scope of the principle in Anshun's case is not settled." His Honour was referring to the observation of Kenny JA in Gibbs v Kinna (supra)that in a number of cases in the High Court consequent to Anshun some doubts have been expressed about the precise scope of that decision. In Gibbs v Kinna (supra) Kenny JA observed at 26‑27: "Whether or not it is unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceeding depends almost entirely on the particular circumstances." 40 The application of the Anshun principle raises for consideration issues of relevance, unreasonableness and the possibility of inconsistent or contradictory judgments. In the present circumstances there is little scope for argument about the issue of relevance as the factual basis for the cause of action or claim relied upon in the statutory demand was pleaded in pars 48 and 49 of the amended statement of claim. However, I note that there are a number of judicial observations to the effect that the notion of relevance, which has a clear place in the consideration of whether a defence should have been raised, is of little help or use in considering whether a cause of action should have been raised and asserted in an earlier proceeding: Boles v Esanda Finance Corporation Ltd (supra) at 674; Gibbs v Kinna (supra) at 27. 41 I am satisfied that in the present circumstances there is a significant matter of substance giving rise to a genuine dispute, namely, that Tristar is estopped, on an Anshun principle, from asserting as a cause of action against Ford that Ford is indebted to it for the tooling costs set out in the demand. Although Tristar has not commenced a proceeding in the court raising that cause of action against Ford and seeking judgment for the amount of the tooling costs, it has taken advantage of a statutory procedure which is based on the fact that such a cause of action exists. In such circumstances, I consider that there is a genuine dispute or a triable issue, whichever formulation be used, that a party to a prior proceeding can raise an Anshun estoppel for the purpose of setting aside a demand served on it pursuant to s 459E(1) of the Act by the other party to the earlier proceeding. 42 Finally, it should be noted that the appeal by Ford against the judgment of Heerey J is fixed for hearing on 18 August 2003. Ford submitted that the appeal, if successful, would remove the basis for Tristar's claim for the tooling costs. Accordingly, the existence of the appeal established a sufficient genuine dispute for the purposes of s 459H of the Act but also constituted "some other basis" for setting aside the statutory demand pursuant to s 459J(1)(b). Ford relied upon Eumina Investments Pty Ltd v Westpac Banking Corporation (supra) in which Emmett J exercised a discretion under s 459J(1)(b) to set aside a statutory demand. His Honour said at 459: "It is, in my opinion, appropriate for a Court to exercise the discretion conferred by s 459J(1)(b) where the Court is satisfied that there is an appeal based on reasonable and arguable grounds which, if successful, would result in the existence of an offsetting claim." Little time was addressed in submissions to this ground for setting aside the demand. In Eumina Investments Pty Ltd v Westpac Banking Corporation (supra) Emmett J had before him the parties' summaries of arguments in relation to the special leave application. His Honour said at 461: "I should not presume to predict the outcome of the application for special leave or the outcome of any appeal if leave were granted. However, it is appropriate for me to give consideration to whether or not those summaries demonstrate that the application is and any appeal would be based on reasonable and arguable grounds." 43 No such approach was adopted before me. Although the notice of appeal was an exhibit, no argument was addressed to the grounds of appeal which were quite extensive. Without having had argument addressed to the reasons of Heerey J for his decision and the nature and substance of the grounds of appeal, I do not consider the fact of the appeal and the contents of the notice of appeal by themselves constitute "some other reason" why the demand should be set aside for the purpose of s 459J(1)(b). 44 However, for the reasons earlier referred to, the demand served on Ford on 10 February 2003 will be set aside with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg J.