MR J.T. GLEESON for Lewis, that is to say for Peat
Marwick Hungerfords, which is the first firm of
accountants. (instructed by Freehill Hollingdale &
Page)

MR T.E.F. HUGHES, QC:

May it please the Court, I appear

with MR T.D.F. HUGHES for the fourth and fifth
respondents, they are the Coopers & Lybrand

parties, Your Honours. (instructed by Norton Smith
& Co)

DAWSON J: Yes, Mr Jackson.
MR JACKSON:	Your Honours, there are two matters which, it

is submitted, merit the grant of special leave.
The first concerns the question whether, on the
facts as found, the applicant had established a
claim to contribution in respect of losses on the
horse syndication venture, if I can put it shortly,

and I will come to that in just a moment. The
second concerns the course taken in the Full Court
in relation to the disposition of his appeal.
Your Honours, I should say immediately that in

relation to the second of those matter it is a
question depending on the particular case, although
it is possible to say that it does turn on a rather
larger issue concerning the onus of proof provision
and the relevant parts of the Fair Trading Act

Cummings

17/9/93

which mirror the provisions of the Trade Pracrices
Act. But may I come to that a little later.
Could I turn first to the question of the

claim to contribution. Your Honours, the issue
which arises in that connection is whether there is
an entitlement, indeed a mutual entitlement to
contribution between persons who have associated
themselves, for the purposes of a business venture
which fails because the substratum of it
disappears, in circumstances where the benefit
which each would have obtained if it had gone ahead
would have been different in kind - the benefits

would have -been different in kind. When I say
"different in kind", one often has cases such as a
mining joint venture where each obtains separate
parts of…

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.

Continue reading Cummings v Lewis &

Details

AGLC: Cummings v Lewis & [1993] HCATrans 280
Case: [1993] HCATrans 280
Decision Date

CaseChat Overview and Summary

The applicant, James Bartholomew Cummings, sought special leave to appeal to the High Court of Australia from a decision of the Full Court. The dispute concerned a failed horse syndication venture and claims for contribution between parties involved. The respondents were Michael Terence Lewis, representing the firm KPMG Peat Marwick Hungerfords, and Paul Isherwood, representing the firm Coopers & Lybrand.

The primary legal issue before the High Court was whether an entitlement to contribution existed between parties who had associated for a business venture that failed due to the disappearance of its substratum. Specifically, the court was asked to consider whether such an entitlement arose when the potential benefits each party would have received from the venture were different in kind. A secondary issue related to the Full Court's disposition of the applicant's appeal, which the applicant argued turned on a broader question concerning onus of proof provisions under legislation mirroring the Trade Practices Act.

The applicant's argument regarding contribution centred on the nature of the association and the differing benefits contemplated. The court was to consider whether the relationship between the applicant and representatives of Coopers & Lybrand was one of client and accountant, or if the representative was acting in an entrepreneurial capacity. Similar considerations applied to the relationship with KPMG Peat Marwick Hungerfords. The facts, as stated in the reasons of Sheppard and Neaves JJ, were to be examined in light of these relationships and the nature of the syndicates.

Orders