Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd - [2019] NSWCA 73

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73
Hearing dates: 19 March 2019
Date of orders: 19 March 2019
Decision date: 16 April 2019
Before: Basten JA and Meagher JA at [1];
Emmett AJA at [20]
Decision:
(1) Dismiss the appellant’s application to call further evidence on the appeal.
(2) Appellant to pay the respondents’ costs of the motion.
Catchwords: CIVIL PROCEDURE – appeal – evidence – application to adduce further evidence on appeal – adverse inference drawn by trial judge from failure to call witness – whether application should be adjourned and heard concurrently with appeal –special grounds – whether conduct of legal representative binds party – whether high degree of probability of different result if further evidence adduced – credibility of further evidence
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 192A
Federal Court of Australia Act 1976 (Cth), ss 24, 27
Limitation Act 1969 (NSW)
Supreme Court Act 1970 (NSW), ss 75A, 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWSC 761
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52
Hampson v Hampson [2010] NSWCA 359; 5 ASTLR 116
Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
R v Ensor [1989] 1 WLR 497
TKWJ v The Queen (2002) 212 CLR 124; [2001] HCA 46
Tjiong v Tjiong [2012] NSWCA 201
University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481; [1985] HCA 28
Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28
Category: Procedural and other rulings
Parties: Comlin Holdings Pty Ltd (Appellant)
Metlej Developments Pty Ltd (First Respondent)
Nova Scotia Developments Pty Ltd (Second Respondent)
Kayrouz Constructions Pty Ltd (Third Respondent)
L.A.D.S. Developments Pty Ltd (Fourth Respondent)
Representation:
Counsel:
P E King (Appellant)
J Stoljar SC with L Gor (First & Second Respondents)
A d’Arville (Third & Fourth Respondents)
Solicitors:
McKell’s Solicitors (Appellant)
Sachs Gerace Broome (First & Second Respondents)
McLachlan Thorpe Partners (Third & Fourth Respondents)

File Number(s): 2018/185926
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity

Citation:

[2018] NSWSC 761

Date of Decision:

28 May 2018

Before:

Parker J

File Number(s):

2014/285405

HEADNOTE

[This headnote is not to be read as part of the judgment.]

Comlin Holdings Pty Ltd (Comlin), the appellant, claimed that it was entitled to a 20% share in the development of a property situated at South Terrace, Bankstown, New South Wales (the Property).

The trial judge dismissed Comlin’s claim on a number of grounds. These included: it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCA 73
Decision Date: 16 April 2019

CaseChat Overview and Summary

Comlin Holdings Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the primary judge. The dispute concerned an adverse inference drawn by the trial judge from the appellant's failure to call a particular witness. The appellant sought to adduce further evidence on appeal.

The Court of Appeal was required to determine whether to grant the appellant's application to adduce further evidence. This involved considering whether the application should be adjourned and heard concurrently with the appeal, whether the conduct of the appellant's legal representative bound the party, and whether there was a high degree of probability that a different result would have been reached had the further evidence been adduced at trial, assessing the credibility of that evidence.

The Court dismissed the appellant's application to call further evidence. The reasoning, though not detailed in the provided text, would have involved an assessment against the established criteria for admitting fresh evidence on appeal, likely finding that the appellant had not satisfied the necessary threshold, particularly concerning the probability of a different outcome and the credibility of the proposed evidence. The Court also ordered the appellant to pay the respondents' costs of the motion.

Orders

Orders of the court

(1) Dismiss the appellant’s application to call further evidence on the appeal.

(2) Appellant to pay the respondents’ costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73
Hearing dates:	19 March 2019
Date of orders:	19 March 2019
Decision date:	16 April 2019
Before:	Basten JA and Meagher JA at [1]; Emmett AJA at [20]
Decision:	(1) Dismiss the appellant’s application to call further evidence on the appeal. (2) Appellant to pay the respondents’ costs of the motion.
Catchwords:	CIVIL PROCEDURE – appeal – evidence – application to adduce further evidence on appeal – adverse inference drawn by trial judge from failure to call witness – whether application should be adjourned and heard concurrently with appeal –special grounds – whether conduct of legal representative binds party – whether high degree of probability of different result if further evidence adduced – credibility of further evidence
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Evidence Act 1995 (NSW), s 192A Federal Court of Australia Act 1976 (Cth), ss 24, 27 Limitation Act 1969 (NSW) Supreme Court Act 1970 (NSW), ss 75A, 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWSC 761 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Giannarelli v Wraith (1988) 165 CLR 543; [1988] HCA 52 Hampson v Hampson [2010] NSWCA 359; 5 ASTLR 116 Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 R v Ensor [1989] 1 WLR 497 TKWJ v The Queen (2002) 212 CLR 124; [2001] HCA 46 Tjiong v Tjiong [2012] NSWCA 201 University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481; [1985] HCA 28 Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28
Category:	Procedural and other rulings
Parties:	Comlin Holdings Pty Ltd (Appellant) Metlej Developments Pty Ltd (First Respondent) Nova Scotia Developments Pty Ltd (Second Respondent) Kayrouz Constructions Pty Ltd (Third Respondent) L.A.D.S. Developments Pty Ltd (Fourth Respondent)
Representation:	Counsel: P E King (Appellant) J Stoljar SC with L Gor (First & Second Respondents) A d’Arville (Third & Fourth Respondents) Solicitors: McKell’s Solicitors (Appellant) Sachs Gerace Broome (First & Second Respondents) McLachlan Thorpe Partners (Third & Fourth Respondents)
File Number(s):	2018/185926
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Equity Citation: [2018] NSWSC 761 Date of Decision: 28 May 2018 Before: Parker J File Number(s): 2014/285405