The Court dismissed the plaintiff's application for summary judgment, holding that where the Court of Appeal allowed an appeal, set aside the primary judge's orders, and remitted the matter to proceed as if commenced by writ without making limited orders preserving any part of the first instance determination, there was no extant decision capable of founding an issue estoppel. The Court applied the principle from Bankstown Football Club that a trial judge's determination does not dispose of an issue once and for all where the decision is supplanted by an appellate court's decision setting aside the orders. The Court also held that the first defendant's reliance on a personal contractual licence capable of protection by injunction — a right that does not vest in the trustee in bankruptcy under s 58 of the Bankruptcy Act 1966 (Cth) following King v King — raised arguable triable issues that precluded summary disposition.
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