LEAVE TO APPEAL
5 The primary question is then whether leave to appeal the interlocutory decision of Siopis J should be granted. The proceeding has its own interesting history, that is, the proceeding in WAD 348 of 2010, in which 3D was the applicant for relief and Intellec was the respondent. Intellec seems to have done very little by way of actually instructing lawyers, although lawyers initially went on the record on behalf of the company.
6 The matter was listed for a summary judgment application on 31 January 2011. Intellec did not attend and summary judgment was entered. By notice of motion dated 11 February 2011, Intellec applied to have the judgment set aside. Intellec's motion was dismissed and it is this decision of Siopis J that was handed down on 21 April 2011 and found at 3D Funtimes Limited v Intellec Development Group Pty Ltd (No 2) [2011] FCA 407, which is the subject of this application for leave. His Honour was unimpressed with suggestions that Mr McHutchison, the officer of Intellec, did not know that the summary judgment objection had been listed for hearing on 31 January 2011, and having read his Honour's reasons I can see why he would have been unimpressed with the arguments put forward on behalf of Intellec.
7 However, his Honour essentially put all of that to one side in order to determine whether there was a good defence to the claims in respect of which the summary judgment had been entered, and whether any injustice would flow to Intellec if it were not to be set aside. In the end, his Honour took a view of the facts that led him to form the view that even if, as Intellec contended, there were invoices remaining unpaid by 3D in respect of tooling done by Intellec, 3D was entitled to an equitable set-off in respect of other moneys paid by 3D on behalf of Intellec during a period in which the two companies were in merger discussions. It is this issue that raises itself in the present application in relation to the question of substantial injustice and the defence that might be run if an appeal were successful.
8 It is contended on behalf of the applicant, Intellec, that the evidence of Mr McHutchison that was before his Honour for the purposes of setting aside the summary judgment application has not sufficiently been noted. In particular, the applicant emphasises [7] of the affidavit made by Mr McHutchison, previously sworn 25 March 2011, in which he said that the payments totalling the $1.4 million or so were not tooling-related payments and were not treated by Intellec as such payments. Against that it is argued, not unreasonably by the respondent, 3D, to this leave application that it is neither here nor there so far as his Honour's finding is concerned that there is an equitable estoppel available in respect of the $1.4 million, generally speaking.
9 The argument, however, put by the applicant, is that the materials also raised the question of whether there can be an equitable estoppel in circumstances, on the reading of the facts it would press on an appeal, namely that there was no present obligation by Intellec to repay that $1.4 million or so to 3D, the time for payment had not arrived and no equitable estoppel could arise to take account of those amounts in such circumstances. It seems to me that in relation to that particular question of fact and law, there is sufficient doubt raised in respect of the judgment that is sought to be appealed from, but in weighing these sorts of factors up for the purposes of a leave application, one both considers the ground of the defence that would be argued together with the extent of the injustice that might be perpetrated if an appeal were not allowed but might succeed.
10 So it is consideration of both of those factors, identified in the authorities such as DÉcor Corporation v Dart Industries Incorporated (1991) 33 FCR 397, that leads me to consider that on balance it is appropriate that leave to appeal be granted.