Krakowski & Anor v Eurolynx Properties Ltd

The High Court of Australia heard an appeal concerning a dispute between David Krakowski and Henia Krakowski (the appellants) and Eurolynx Properties Ltd (the respondent), with Mallesons Stephen Jaques also involved. The proceedings involved submissions regarding the failure of the plaintiff to discharge the onus of proof in relation to the subjective aspect of a fraud case against Eurolynx.

The central legal issue before the court was whether the evidence supported an inference of dishonesty on the part of Mr Gilbert, an individual involved in the transactions, and whether findings of honesty made by the lower courts should be upheld. The court was also required to consider the application of the principle established in *Akerhielm* (1959) AC 789, which dictates that a decision in favour of a defendant acquitted of fraud in a court of first instance should not be overturned on appeal unless on the clearest evidence.

The court was presented with transcript references detailing Mr Gilbert's evidence concerning his sole responsibility for instructing solicitors, his lack of reason not to disclose agreements, his role in answering requisitions, and his failure to check if the contract reflected the full terms of the agreement. Submissions were made that drawing an inference of dishonesty from this evidence would contradict the findings of the lower courts, which had explicitly found Mr Gilbert to have acted reasonably and honestly. The court was also asked to consider the appropriate form of relief in third-party proceedings, with a specific focus on the consent to an appeal being allowed on the withdrawal of an admission of negligence.