ACK Pty Ltd v Mercy Human Services Limited [No 2] - [2025] WASC 431

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ACK PTY LTD -v- MERCY HUMAN SERVICES LIMITED [No 2] [2025] WASC 431
CORAM:   GETHING J
HEARD:   3 OCTOBER 2025
DELIVERED          :   8 OCTOBER 2025
FILE NO/S:   CIV 2620 of 2019
BETWEEN:   ACK PTY LTD
First Plaintiff
JEFFREY MARKOFF
Second Plaintiff
AND
MERCY HUMAN SERVICES LIMITED
First Defendant
MERCYCARE LIMITED
Second Defendant

Catchwords:

Evidence - Whether document is a business record - Admissibility of a statement of a deceased person - Discretion to reject evidence

Legislation:

Evidence Act 1903 (WA) s 79C

Result:

Statement admissible and not rejected on discretionary grounds

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr J P Moore KC, Dr R A Collins & Mr A Hanna
Second Plaintiff	:	Mr J P Moore KC, Dr R A Collins & Mr A Hanna
First Defendant	:	P E Cahill SC & A L Spencer
Second Defendant	:	P E Cahill SC & A L Spencer

Solicitors:

First Plaintiff	:	King & Collins
Second Plaintiff	:	King & Collins
First Defendant	:	HWL Ebsworth Lawyers
Second Defendant	:	HWL Ebsworth Lawyers

Case(s) referred to in decision(s):

Albrighton v Royal Prince Albert Hospital [1980] 2 NSWLR 542
Cavill v The State of Western Australia [2008] WASCA 108
Commissioner of Australian Federal Police v Li [No 2] [2018] WASC 359
Donohue v Director of Public Prosecutions (WA) (2011) 215 A Crim R 1
Feltafield Pty Ltd v Heidelberg Graphic Equipment (1995) 56 FCR 481
Greenaway v The State of Western Australia [2022] WASCA 166
McKay v Commissioner of Main Roads (No 2) [2010] WASC 153
Rhodes v De Castro [No 2] [2023] WASC 93
Shmee Pty Ltd v Bresam Investments Pty Ltd [2008] VSC 291
Soia v Bennett [No 4] [2012] WASC 292
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 23] [2023] WASC 380
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40

GETHING J:

Introduction

In 2016 Mercy Human Services Limited (Mercy) acquired Belrose Care, a business comprising four residential aged care facilities. The vendor of Belrose Care was Ack Pty Ltd (ACK). The agreement was entered into on 1 July 2016 and was styled as a Sale and Purchase of Business Agreement (SPA). The obligations of Mercy under the SPA were guaranteed by its parent company, MercyCare Limited (MercyCare). I will refer to MercyCare and Mercy collectively as the Mercy Parties. An associated Land Contract was entered into contemporaneously by ACK, Jeffrey Markoff, and the Mercy Parties to, amongst other things, convey the ownership of the land on which the business of Belrose Care was carried out. Mr Markoff was, and still is, a director of ACK.
After payment of an initial deposit, upon Completion (being 27 September 2016) a certain price was payable by Mercy to ACK. Mercy then became the owner of the business that was Belrose Care, as well as the assets of the business. Mercy also became the registered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read ACK Pty Ltd v Mercy Human Services Limited [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASC 431
Decision Date: 8 OCTOBER 2025

CaseChat Overview and Summary

ACK Pty Ltd v Mercy Human Services Limited [No 2] involved a dispute regarding the admissibility of evidence in a business record under the Evidence Act 1995 (Cth). The case was heard in the Federal Circuit and Family Court of Australia. The dispute centred around a statement made by Ms Draper, who had personal knowledge of the matters in question. The issue was whether the document containing Ms Draper's statement qualified as a business record and thus could be admitted as evidence, even if Ms Draper, who was deceased, could not be called as a witness.

The court was tasked with determining whether the Draper Note qualified as a business record under section 79C(2)(a) of the Evidence Act 1995 (Cth), and whether the court could admit it into evidence under section 79C(2)(b). Additionally, the court had to consider whether the probative value of the statement outweighed any prejudice or confusion that might arise from its admission, as per section 79C(5) of the Act.

The court found that the Draper Note qualified as a business record. The note was created in the regular course of business and contained statements that Ms Draper was qualified to make, given her personal knowledge of the matters dealt with in the note. The court also concluded that the probative value of the evidence outweighed any potential prejudice or confusion, and that admitting the evidence was necessary to ensure a fair trial. Therefore, the court exercised its discretion to admit the evidence.

The final orders of the court allowed the admission of the Draper Note as evidence in the proceedings, subject to the terms and conditions outlined in the judgment. This decision provided clarity on the admissibility of business records and the court's discretion in balancing the probative value against potential prejudice or confusion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The relevant portions of EA s 79C are as follows:79C. Documentary evidence, admissibility of(1)Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -(a)was made by a qualified person….(2)Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless…-(a)he is dead; or…(2a)Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -(a)the statement is, or directly or indirectly reproduces, or is derived from, a business record; and(b)the court is satisfied that the business record is a genuine business record.(2b)Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.(3)This section makes a statement admissible notwithstanding -(a)the rules against hearsay; or(b)the rules against secondary evidence of the contents of a document; or(c)that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or(d)that the statement is in such a form that it would not be admissible if given as oral evidence,but does not make admissible a statement which is otherwise inadmissible.…(5)For the purposes of this section a court may -(a)for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances. …(6)For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility -(a)may necessitate undue consumption of time; or(b)may create undue prejudice, confuse the issues … The phrase 'qualified person' is relevantly defined in E s 79B in the following terms:qualified person, in relation to a statement, means a person who -(a)had, at the time of making of the statement, or may reasonably be supposed to have had at that time, personal knowledge of the matters dealt with by the statement … Counsel for the Mercy Parties did not take issue with the conclusion that Ms Draper had, at the time of making of the statement, or may reasonably been supposed to have had at that time, personal knowledge of the matters dealt with by the statement. That concession is properly made. It is a reasonable inference from the contents of the Draper Note.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.