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