Mr Landlord Pty Ltd v BigJ Enterprises Pty Ltd

[2025] VSCA 146

Victorian Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Onus of proof
3. › Civil proceedings
4. › Party bearing onus to prove ownership at particular date
5. › Evidence of intervening transfer standing in way of finding sought
6. › Whether judge imposed incorrect onus by requiring party to disprove transfer
7. › Corporations Act 2001 (Cth), s 251A(6)
1. Evidence
2. › Proof
3. › Onus of proof
4. › Unsatisfactory state of evidence
5. › Whether open to decide issue without resolving factual controversy on basis onus of proof not discharged
6. › Third alternative of deciding on burden of proof
7. › Binary approach to past facts

Quick Take

Where evidence of an intervening transfer of property exists (including documentary evidence attracting the statutory presumption under s 251A(6) of the Corporations Act), a party bearing the onus of proving continued ownership is not relieved of that onus merely because the transfer does not form part of any party's pleaded case, and the court is not required to make a positive finding as to whether the transfer occurred before taking the evidence into account.