Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73

Comlin Holdings Pty Ltd v Metlej Developments Pty Ltd [2019] NSWCA 73

The application to adduce further evidence was dismissed because the proposed evidence was not 'fresh' (it was available and known prior to and at trial but not called due to the conduct of the appellant's own legal representatives, decisions which bind the appellant), there was no sufficient demonstration of a high probability of a different result had the evidence been admitted, and the proposed evidence lacked sufficient credibility. No special grounds were established as required by s 75A(8) of the Supreme Court Act 1970 (NSW).

Parties
Appellant: Comlin Holdings Pty Ltd; First Respondent: Metlej Developments Pty Ltd; Second Respondent: Nova Scotia Developments Pty Ltd; Third Respondent: Kayrouz Constructions Pty Ltd; Fourth Respondent: L.A.D.S. Developments Pty Ltd
Jurisdiction
Australia
Judgment Date
16 April 2019
Procedural Posture
Civil Appeal / Application to Adduce Further Evidence on Appeal, Determined as Preliminary Issue Before Substantive Appeal
Outcome
Application to call further evidence dismissed; costs ordered against appellant.
Legal Topics
Appeals, Fresh Evidence on Appeal, Procedural Fairness, Agency of Legal Representatives, Advocates' Immunity
Civil Procedure Appeals Fresh Evidence on Appeal Procedural Fairness Agency of Legal Representatives Advocates' Immunity

Case Brief

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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

Procedural Posture

Civil Appeal / Application to Adduce Further Evidence on Appeal, Determined as Preliminary Issue Before Substantive Appeal

Legal Issues

  1. 1 Whether the Court should receive further evidence on appeal under s 75A(7)-(8) of the Supreme Court Act 1970 (NSW)
  2. 2 What constitutes 'special grounds' for admitting further evidence on appeal
  3. 3 Whether the appellant was bound by the conduct and decisions of its trial legal representatives when evidence was available but not led

Ratio Decidendi

The application to adduce further evidence was dismissed because the proposed evidence was not 'fresh' (it was available and known prior to and at trial but not called due to the conduct of the appellant's own legal representatives, decisions which bind the appellant), there was no sufficient demonstration of a high probability of a different result had the evidence been admitted, and the proposed evidence lacked sufficient credibility. No special grounds were established as required by s 75A(8) of the Supreme Court Act 1970 (NSW).

Court Disposition

Application to call further evidence dismissed; costs ordered against appellant.

Orders

  • (1) Dismiss the appellant's application to call further evidence on the appeal.
  • (2) Appellant to pay the respondents' costs of the motion.