PAGE v VANKER and ANOR [1990] NSWCA 143

PAGE v VANKER and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY and HANDLEY JJA and WADDELL A-JA 24-25 October 1990, 7 December 1990

[1990] NSWCA 143

PATENTS IN USA — SALE — FRESH EVIDENCE — REFERENCE TO DEPUTY COMMISSIONER OF TAXATION APPEAL from Commercial Division — Agreement, in consideration of advance of $10,000, to pay $100,000 in the event of certain "rights and patents in the USA being sold for $1,500,000..." — Rights owned by a company having other assets of various kinds — Sale for a single consideration in shares of all shares in that company and in another company having other assets — Sale to a company formed for quotation on the Stock Exchange — Held not a sale within the agreement. FRESH EVIDENCE — Application to call fresh evidence — Principles discussed — not necessary to decide. REFERENCE of judgment and affidavit to Deputy Commissioner of Taxation — Evidence of witness — possible tax evasion — comments by Handley JA and Waddell A-JA. Appeal upheld with costs — Proceeding dismissed with costs.

Mahoney JA The facts are set forth in detail in the judgment of Handley JA which I have had the opportunity of reading.

Mr Page moved for leave to adduce fresh evidence, upon the basis to which Handley JA has referred. Were it necessary to decide this application, I would, on the evidence as it is before the Court, not grant the application. The principles upon which such an application is to be dealt with are set forth in s75A of the Supreme Court Act: see also McCann v Parsons (1954) 93 CLR 418; Wollongong Council v Cowan (1955) 93 CLR 435; and Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. It is necessary for the applicant to show that grounds exist to warrant the admission of the evidence. The argument has proceeded upon the basis that the grounds referred to in the cases to which I have referred are essentially the grounds to be established in order to satisfy the statute in the present case.