Beattie & Sutherland v Osman (No 3) - [2009] NSWSC 824

CITATION: Beattie & Sutherland v Osman (No. 3) [2009] NSWSC 824

HEARING DATE(S): 07/08/09

JUDGMENT DATE :
7 August 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 7 August 2009

DECISION: Tender rejected.

CATCHWORDS: EVIDENCE – admissibility - plaintiffs seek direction to allow them to tender a schedule as a summary of other documents under s 50 of the Evidence Act 1995 (NSW) – Court refuses to make direction as schedule is not a summary and defendants have not had a reasonable opportunity to examine the documents which are sought to be tendered to support it – plaintiffs seek to tender voluminous documents – application refused as defendants would be prejudiced by late tender

LEGISLATION CITED: Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)

CATEGORY: Procedural and other rulings

PARTIES: Graeme Robert Beattie and Roderick Mackay Sutherland in their capacity as joint and several administrators of PR Marketing and Media Group Pty Ltd
v
Rhonda Osman & 2 Ors (No. 3)

FILE NUMBER(S): SC 3588/09

COUNSEL: Plaintiff: C D Wood
Defendants: B Katekar

SOLICITORS: Plaintiff: Matthews Folbigg
Defendants: Axis Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

WHITE J

Friday, 7 August 2009

3588/09 Graeme Robert Beattie and Roderick Mackay Sutherland in their capacity as joint and several administrators of PR Marketing and Media Group Pty Ltd v Rhonda Osman & 2 Ors (No. 3)

JUDGMENT

1 HIS HONOUR: On 24 June 2009 Visiontek Pty Ltd (“Visiontek”) purportedly appointed the plaintiffs as administrators of the PR Marketing and Media Group Pty Ltd (“the company” or “PRM”). The appointment was purportedly made under s 436C of the Corporations Act 2001 (Cth). The plaintiffs have sought a declaration that their appointment as administrators was valid and have sought consequential relief. The question of the validity of the plaintiffs' appointment turns on whether a charge given by the company to Visiontek on 10 November 2005 is enforceable. That question in turn would appear to depend, at least in part, on whether or not PRM is actually or contingently liable to pay money now or in the future to Visiontek.

2 The plaintiffs read an affidavit of a Mr Hoon Fong Lee sworn on 14 July 2009. He deposes to being employed as the finance manager of Visiontek. He annexed to his affidavit a schedule which he describes as setting out a summary of "the estimated debt owing by the Company to Visiontek as at May 2009".

3 The schedule states that the estimated debt owing by PRM to Visiontek as at 31 May 2009 after "other adjustments" is $438,720.55. That amount is made up of 15 items. Against some, but not all, of the items there is a column headed "Supporting Evidences" (sic). The items stated on the schedule are as follows:

4 "Balances as of 31/10/05, $81,804.74.” The supporting evidence is described as "Past loan agreements signed".

5 Three items are stated on…

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.

Continue reading Beattie & Sutherland v Osman (No 3)

Details

AGLC: Beattie & Sutherland v Osman (No 3) [2009] NSWSC 824
Case: [2009] NSWSC 824
Decision Date: 7 August 2009

CaseChat Overview and Summary

In the matter of Beattie & Sutherland v Osman (No 3), the plaintiffs sought a direction from the court to allow them to tender a schedule as a summary of other documents in accordance with section 50 of the Evidence Act 1995 (NSW). The defendants opposed this application, arguing that the schedule was not a summary and that they had not had a reasonable opportunity to examine the documents sought to be tendered to support it. The plaintiffs also sought leave to tender voluminous documents, which the defendants argued would prejudice them due to the late tender.

The legal issues before the court were whether the schedule complied with section 50 of the Evidence Act, and whether the defendants would be prejudiced by the late tender of voluminous documents. The court considered the requirements of section 50 and found that the schedule did not comply with the provision as it was not a summary of the other documents. The court also found that the defendants would be prejudiced by the late tender of voluminous documents, as they had not had a reasonable opportunity to examine them.

In light of these findings, the court refused the plaintiffs' application for a direction to tender the schedule and also refused leave to tender the voluminous documents. The court held that the defendants would be prejudiced by the late tender of the documents, and that this was a sufficient ground to refuse the application. The court did not make any orders in relation to the admissibility of the schedule or the voluminous documents.

The court's decision in this case highlights the importance of ensuring that documents are properly summarised in accordance with section 50 of the Evidence Act, and the need for parties to have a reasonable opportunity to examine documents before they are tendered in evidence. The decision also underscores the principle that late tender of voluminous documents may prejudice a party and result in the application being refused.

Orders