“7. … the principles which are applicable to this application are as follows: i) When determining the effect of a debarring order the court should first consider the terms of the order. What does the order state the relevant party is debarred from doing? … ii) If an order debars a defendant from defending the proceedings (like the one here), at the trial the defendant should not be permitted to adduce evidence, cross-examine the claimant's witnesses, or make submissions in defence of the claim. iii) Moreover, the defendant will usually be prevented not just from advancing a positive case, but also from making any submissions that challenge the claimant’s case … iv) The prohibition on making submissions (and cross-examining) applies to issues of quantum just as it does to issues of liability … v) There appears to be a narrow, residual discretion or trial management power to permit a debarred defendant to take some part in the relevant proceedings … vi) The court may also have regard to the nature of the pleaded defence of the debarred defendant for the purposes of understanding the nature and extent of the relevant claim … vii) But in exercising this narrow power, the court should have regard to the importance of ensuring that a debarring order, which is an important sanction available to the court in the exercise of its case management powers, and an important method of ensuring that the court’s case management orders are respected, means what it says and is not undermined by permitting the defendant to escape its effect by purporting to make supposedly “clarificatory” submissions. viii) Of course, where a defendant is not permitted to participate in the trial, by reason of an order debarring him from defending a claim, the claimant does not automatically win by default. At the trial, the claimant must satisfy the court that he is entitled to the relief sought. In this case it remains for the Claimant to prove her claim and her entitlement to the damages sought. 8. The debarring order is not only an important method of ensuring that the court’s case management orders are respected, but it is also of important practical effect as the facts of this case show. Allowing the Defendant in this case to have a limited form of participation at trial by defending both the merits of the claim and quantum of liability, would be unfair to the Claimant. It would allow the Defendant to participate in the trial despite his refusal to comply with court orders concerning disclosure in a case where disclosure is central to the claim …”
“(a) all business activities carried on by the Sellers and any other member of the Sellers’ Group on the date of this Agreement in Australia; (b) 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; and (c) the online take-away food ordering service business carried on by the Sellers, any other member of the Sellers’ Group, the JV Entities and the Franchisees on the date of this Agreement in the Target Countries other than Australia”
“The Sellers undertake to the Purchasers that between the date of this Agreement and the Second Closing Date they will use their best endeavours to procure that: (a) one or more member of the Sellers’ Group acquires full legal and beneficial title to the entire Franchise Business of each Franchisee prior to the Second Closing Date on an unconditional basis and on terms satisfactory to the Purchaser’s Representative at its sole discretion; and (b) one or more member of the Sellers’ Group acquires the full legal and beneficial interests in each JV Entity that are not already owned by a member of the Sellers’ Group (the “JV Equity Interests”) prior to the Second Closing Date on an unconditional basis and on terms satisfactory to the Purchasers’ Representative at its sole discretion.”
“In view of the numerous expressions of doubt and concern that we have recently received from EASI franchisees, merchants, delivery personnel, and users regarding the strategic merger between EASI and HungryPanda, EASI hereby gives the following special statement: So far, the strategic merger between EASI and HungryPanda has not been completed. As a result, EASI is still operating independently in an orderly manner according to the principle of providing quality services to users, merchants, and delivery personnel. We would like to thank all EASI franchisees, merchants, delivery personnel, and users for your longstanding support. As always, EASI will do its best to serve you. Let us join hands to overcome the current crisis against the pandemic!”
“In light of this, and while our clients have not yet come to a decision, they are presently considering exercising their option to terminate the APA, or alternatively opening further negotiations to find mutually agreeable terms for a revised arrangement which benefits both parties.”
“I believe that both the fall in order volumes, and the departure of employees are at least partly the result of HungryPanda being unable to exercise any control over the IT Systems, as I have described. However, whether or not that is so – as a result of the Sellers’ continued withholding of the IT Systems necessary to control the Business, HungryPanda is unable to do anything to remedy the situation, or to preserve the Goodwill of the Business it has acquired, let alone transition it into the HungryPanda brand as intended.”
“… it falls on the defendant to prove that the loss would not have occurred but for the breach. This is something described by the maxim ‘omnia praesumuntus contra spoliatorem’ - everything is presumed against the wrongdoer – but that probably goes too far. In practice, the principle gives a fair wind not a free ride, and only has real traction where the question is as to what third parties would have done or what profits would have been made, not what the claimant or the defendant would have done.”
“The court … has to conduct a factual inquiry as to how the contract would have been performed had it not been repudiated. Its performance is the only counter-factual assumption in the exercise. On the basis of that premise, the court has to look at the relevant economic and other surrounding circumstances to decide on the level of performance which the defendant would have adopted. The judge conducting the assessment must assume that the defendant would not have acted outside the terms of the contract and would have performed it in his own interests having regard to the relevant factors prevailing at the time. But the court is not required to make assumptions that the defaulting party would have acted uncommercially merely in order to spite the claimant. To that extent, the parties are to be assumed to have acted in good faith although with their own commercial interests very much in mind.”
“In light of (1) my understanding as to the reasons behind the budgeted growth and subsequent departure from budget along with (2) my review of the 2023 HP Budget compared with actual results, and in the absence of any other information, I have relied on the 2022 HP Budget as being a reasonable indicator of HP’s performance had EASI complied with the terms of the APA.”