Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 3) - [2019] NSWCA 214

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 3) [2019] NSWCA 214
Hearing dates: 13, 14 August 2019
Decision date: 03 September 2019
Before: Basten JA and Meagher JA at [1];
Emmett AJA at [82]
Decision:
(1) Dismiss the appeal of Comlin Holdings Pty Ltd from the orders made in the Equity Division on 28 May 2018.
(2) Order that the appellant pay the respondents’ costs of the proceedings in this Court.
Catchwords:
CONTRACT – formation of contract – partnership or joint venture – oral agreement alleged – development of land – alleged promise to pay 20% of profits – delay in making claim and bringing proceedings – claim of equitable fraud depending on existence of agreement – relevance of later conduct
EVIDENCE – adverse inference drawn from failure to call witness – absence of witness not explained – whether corroborative evidence admissible – whether evidence available for other purposes
Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A
Limitation Act 1969 (NSW), ss 15, 47
Evidence Act 1995 (NSW), ss 60, 108
Cases Cited: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55
Pallant v Morgan [1953] Ch 43
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Texts Cited: J D Heydon, LexisNexis, Cross on Evidence
Category: Principal judgment
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 / L Gor (First and Second Respondents)
A d’Arville (Third and Fourth Respondents)
Solicitors:
McKell’s Solicitors (Appellant)
Sachs Gerace Broome (First and Second Respondents)
McLachlan Thorpe Partners (Third and Fourth Respondents)

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

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2018] NSWSC 761

Date of Decision:

28 May 2018

Before:

Parker J

File Number(s):

2014/285405

Judgment

BASTEN JA and MEAGHER JA: On 29 September 2014 the appellant, Comlin Holdings Pty Ltd, commenced proceedings against the four respondents, claiming that it had a 20% interest in a large residential property development at South Terrace, Bankstown in south-western Sydney. A trial was held before Parker J in the Equity Division in November 2017. In May 2018, the trial judge dismissed the claim. [1]
1. Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2018] NSWSC 761.
The claim was based upon a conversation, on 13 September 2001, following an auction of the land on which the development was to take place. A director of Comlin, Mr Antonios (Tony) Bassil, attended the auction and claimed that he made the successful bid. However, the contract for sale was executed in the names of the four respondents, companies associated with the Metlej and Kayrouz families, and together known as the “Venture Group”. In broad terms, Mr Bassil asserted that his…

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 214
Decision Date: 03 September 2019

CaseChat Overview and Summary

Comlin Holdings Pty Ltd (Comlin) appealed to the Court of Appeal of New South Wales against orders made in the Equity Division concerning a dispute with Metlej Developments Pty Ltd (Metlej). The core of the dispute involved an alleged oral agreement for Comlin to receive 20% of the profits from the development of certain land, which Comlin contended constituted a partnership or joint venture. Comlin's claim was also framed as one of equitable fraud, contingent on the existence of this agreement.

The Court of Appeal was required to determine whether an oral agreement for a share of profits had been formed between the parties, and if so, whether this agreement gave rise to a partnership or joint venture. Further, the Court had to consider the relevance of the delay in Comlin making its claim and commencing proceedings, and whether the alleged equitable fraud was established. The admissibility and weight of evidence, including the drawing of adverse inferences from the failure to call a particular witness, were also central to the determination.

The Court of Appeal upheld the decision of the Equity Division, dismissing Comlin's appeal. The reasoning focused on the lack of sufficient evidence to establish the existence of the alleged oral agreement. The Court considered the conduct of the parties subsequent to the alleged agreement and found it inconsistent with the existence of a partnership or joint venture. Furthermore, the Court addressed the issue of delay, finding it relevant to the assessment of the parties' conduct and the credibility of Comlin's claims. An adverse inference was drawn from the failure of Comlin to call a key witness whose absence was unexplained, and the Court found that the evidence did not support the claim of equitable fraud.

Consequently, the appeal was dismissed, and Comlin was ordered to pay the respondents' costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

(1) Dismiss the appeal of Comlin Holdings Pty Ltd from the orders made in the Equity Division on 28 May 2018.

(2) Order that the appellant pay the respondents’ costs of the proceedings in this Court.

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 (No 3) [2019] NSWCA 214
Hearing dates:	13, 14 August 2019
Decision date:	03 September 2019
Before:	Basten JA and Meagher JA at [1]; Emmett AJA at [82]
Decision:	(1) Dismiss the appeal of Comlin Holdings Pty Ltd from the orders made in the Equity Division on 28 May 2018. (2) Order that the appellant pay the respondents’ costs of the proceedings in this Court.
Catchwords:	CONTRACT – formation of contract – partnership or joint venture – oral agreement alleged – development of land – alleged promise to pay 20% of profits – delay in making claim and bringing proceedings – claim of equitable fraud depending on existence of agreement – relevance of later conduct EVIDENCE – adverse inference drawn from failure to call witness – absence of witness not explained – whether corroborative evidence admissible – whether evidence available for other purposes
Legislation Cited:	Conveyancing Act 1919 (NSW), ss 23C, 54A Limitation Act 1969 (NSW), ss 15, 47 Evidence Act 1995 (NSW), ss 60, 108
Cases Cited:	Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Pallant v Morgan [1953] Ch 43 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Texts Cited:	J D Heydon, LexisNexis, Cross on Evidence
Category:	Principal judgment
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 / L Gor (First and Second Respondents) A d’Arville (Third and Fourth Respondents) Solicitors: McKell’s Solicitors (Appellant) Sachs Gerace Broome (First and Second Respondents) McLachlan Thorpe Partners (Third and Fourth Respondents)
File Number(s):	2018/185926
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2018] NSWSC 761 Date of Decision: 28 May 2018 Before: Parker J File Number(s): 2014/285405