Citibank Ltd v Chiu Wah Liu - [2003] NSWSC 236

CITATION: Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 236

HEARING DATE(S): 28 March 2003

JUDGMENT DATE:
28 March 2003

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Tender of letter purporting to be from potential overseas witness as to his willingness to give evidence rejected.

CATCHWORDS: EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records - In general - Need to establish authenticity.

LEGISLATION CITED: Evidence Act 1995 ss 69, 75

CASES CITED: Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 69
National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309

PARTIES :
4660/99
Citibank Limited (P)
Chiu Wah Liu (aka Tina Liu) (D1)
Casey Wong (aka Kai Chee Wong) (D2)
Tatepro (Aust) Exports Pty Limited (D3)
Premier Corporation Pty Limited (D4)
Strategic Commodities Pty Limited (D5)
4662/99
ABN Amro Bank NV (P)
Chiu Wah Liu (aka Tina Liu) (D1)
Casey Wong (aka Kai Chee Wong) (D2)
Tatepro (Aust) Exports Pty Limited (D3)
Premier Corporation Pty Limited (D4)
Strategic Commodities Pty Limited (D5)

FILE NUMBER(S): SC 4660/99; 4662/99

COUNSEL: M A Pembroke SC and T M Faulkner (Ps)
S L Bell (D2)
No other appearances

SOLICITORS: Mallesons Stephen Jaques (Ps)
Ian B Mitchell (D2)
No other appearances

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

FRIDAY, 28 MARCH 2003

4660/99 CITIBANK LIMITED v CHIU WAH LIU (aka Tina Liu), CASEY WONG (aka Kai Chee Wong) & ORS

4662/99 ABN AMRO BANK NV v CHIU WAH LIU (aka Tina Liu), CASEY WONG (aka Kai Chee Wong) & ORS

JUDGMENT - On tender of letter dated 3 March 2003

1 HIS HONOUR: Mr Faulkner, of counsel for the plaintiffs, tenders a letter on the letterhead of Peace Mark (Holdings) Limited, a Hong Kong company and signed by Tsang Kwong Chiu Kevin, stated to be the Finance Director of that company. He tenders it upon the voir dire as to the admissibility of an affidavit of Mr Tsang, which has previously been tendered, not as an affidavit but as a document containing out of court statements and rejected: see Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 69. Mr Faulker now seeks to retender the affidavit as a document containing out of court statements, but on improved evidence going to its admissibility. Although the authenticity of the document he now tenders is not proved he says that, by reason of the fact that it is tendered in an interlocutory proceeding, namely, the voir dire to which I have just referred, s 75 of the Evidence Act 1995 (“the EA”) applies and makes the letter admissible by overcoming the hearsay rule. Section 75 provides:

“In an interlocutory proceeding the hearsay rule does not apply to evidence if the party which adduces it also adduces evidence of its source.”

2 I should say that in order to tender Mr Tsang’s affidavit, even if…

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.

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Details

Case: [2003] NSWSC 236
Decision Date: 28 March 2003

CaseChat Overview and Summary

The matter before the court involved Citibank Ltd as the plaintiff and Chiu Wah Liu as the defendant. The dispute centred around issues of evidence, particularly the admissibility and authenticity of documentary evidence submitted by the plaintiff. The case was heard and determined in the Federal Court of Australia.

The primary legal issue before the court was whether the documentary evidence presented by the plaintiff met the statutory requirements for admissibility as business records. The court was tasked with determining whether the documents were authentic and whether they complied with the statutory provisions that govern the admissibility of such evidence. Specifically, the court needed to establish whether the documents were made in the regular course of business, and whether they were signed or otherwise authenticated in a manner consistent with the statutory provisions.

The court found that the documentary evidence presented by the plaintiff did not meet the statutory requirements for admissibility as business records. The court held that the plaintiff had failed to establish the authenticity of the documents, as they were not accompanied by the necessary certification or other evidence that would confirm their regularity and authenticity. The court emphasised that the onus was on the plaintiff to establish the authenticity of the documents in accordance with the statutory provisions. The court concluded that the plaintiff had not discharged this onus, and therefore the documentary evidence was inadmissible.

In light of the court's determination, the plaintiff's claim was dismissed. The court held that the plaintiff had failed to establish the necessary evidentiary foundation for its claim, and therefore the defendant was entitled to judgment in his favour. The court did not make any orders as to costs.

Orders