MSPR Pty Ltd v Advanced Braking Technology Ltd

[2013] NSWCA 416

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MSPR Pty Ltd v Advanced Braking Technology Ltd [2013] NSWCA 416

Hearing dates:

18 November 2013

Decision date:

09 December 2013

Before:

Macfarlan JA at [1]
Ward JA at [72]
Gleeson JA at [73]

Decision:

The appeal is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

EVIDENCE - dispute as to whether payments to company by way of loan or investment in shares - plaintiffs did not call witness who could have given direct evidence of relevant conversations - whether Jones v Dunkel 101 CLR 298 inference should have been drawn - whether witness in plaintiffs' camp - nature of inference that was permissible to draw

Cases Cited:

ASIC v Hellicar [2012] HCA 17; 247 CLR 345
Brandi v Mingot (1976) 12 ALR 551
Fox v Percy [2003] HCA 22; 214 CLR 118
G v H [1994] HCA 48; 181 CLR 387
Gauci v Commissioner of Taxation [1975] HCA 54; 135 CLR 81
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kuhl v Zurich Financial Services [2011] HCA 11; 243 CLR 361
Payne v Parker [1976] 1 NSWLR 191
Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121
Watson v Foxman (1995) 49 NSWLR 315

Category:

Principal judgment

Parties:

MSPR Pty Ltd (First Appellant)
Phyro Holdings Pty Ltd (Second Appellant)
Advanced Braking Technology Ltd (Respondent)

Representation:

Counsel:
C Birch SC/T Lynch SC (Appellants)
I R Pike SC (Respondent)
Solicitors:
Aitken Lawyers (Appellants)
Marque Lawyers (Respondent)

File Number(s):

CA 2012/290296

 Decision under appeal 

Jurisdiction:

9101

Citation:

MSPR Pty Ltd and Phyro Holdings Pty Ltd v Advanced Braking Technology Ltd [2012] NSWDC 140

Date of Decision:

2012-08-22 00:00:00

Before:

Knox SC DCJ

File Number(s):

2009/338826

Judgment

1. MACFARLAN JA: In 2002 there was a public float of Advanced Braking Technology Ltd ("ABT"), then known as Safe Effect Technologies Ltd, a company which had devised an advanced motor vehicle braking technology. Through his company Fingora Pty Ltd, Mr Roger Cowan subscribed for, and was issued, 3.5 million shares in ABT at a cost of 10 cents each. In 2003, ABT made a rights issue to its shareholders. It was underwritten by Hood Group Holdings Ltd ("Hood Group") of which Mr Stanley Holmes was the principal. The issue was substantially under-subscribed. As Hood Group did not have sufficient funds to pay for the shortfall shares, those shares were issued to it subject to its undertaking not to deal with them before the proceeds of their resale were paid to ABT.

1. Mr Cowan gave evidence in the present proceedings…