Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 3) [2019] NSWCA 214

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd (No 3) [2019] NSWCA 214 Hearing dates: 13, 14 August 2019 Decision date: 03 September 2019 Before: Basten JA and Meagher JA at [1]; Emmett AJA at [82] Decision: (1) Dismiss the appeal of Comlin Holdings Pty Ltd from the orders made in the Equity Division on 28 May 2018.

(2) Order that the appellant pay the respondents' costs of the proceedings in this Court. Catchwords: CONTRACT – formation of contract – partnership or joint venture – oral agreement alleged – development of land – alleged promise to pay 20% of profits – delay in making claim and bringing proceedings – claim of equitable fraud depending on existence of agreement – relevance of later conduct

EVIDENCE – adverse inference drawn from failure to call witness – absence of witness not explained – whether corroborative evidence admissible – whether evidence available for other purposes Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A Limitation Act 1969 (NSW), ss 15, 47 Evidence Act 1995 (NSW), ss 60, 108 Cases Cited: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Pallant v Morgan [1953] Ch 43 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 Texts Cited: J D Heydon, LexisNexis, Cross on Evidence Category: Principal judgment Parties: Comlin Holdings Pty Ltd (Appellant) Metlej Developments Pty Ltd (First Respondent) Nova Scotia Developments Pty Ltd (Second Respondent) Kayrouz Constructions Pty Ltd (Third Respondent) L.A.D.S. Developments Pty Ltd (Fourth Respondent) Representation: Counsel: P E King (Appellant) J Stoljar SC / L Gor (First and Second Respondents) A d'Arville (Third and Fourth Respondents)