Cummings v Lewis &

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.