MSPR Pty Ltd v Advanced Braking Technology Ltd

MSPR Pty Ltd and others (the plaintiffs) appealed a decision concerning payments made to Advanced Braking Technology Ltd (the defendant). The central dispute revolved around whether these payments constituted loans to the company or investments in shares. The plaintiffs had not called a witness who possessed direct knowledge of the relevant conversations that could have clarified the nature of these payments.

The Court of Appeal was required to determine whether it was open to draw an inference against the plaintiffs under the principle established in *Jones v Dunkel* (1959) 101 CLR 298. This principle allows for an inference to be drawn against a party that fails to call a witness who is available and could have given relevant evidence. The court had to consider whether the witness in question was within the plaintiffs' "camp" and, if so, what nature of inference was permissible.

The Court of Appeal upheld the primary judge's decision, finding that the inference under *Jones v Dunkel* was indeed permissible. The court reasoned that the witness was available to the plaintiffs and could have provided crucial evidence regarding the characterisation of the payments. The failure to call this witness allowed the court to infer that their evidence would not have been favourable to the plaintiffs' case. Consequently, the appeal was dismissed with costs.