CJ Redman Constructions Pty Ltd v Tarnap Pty Ltd - [2006] NSWSC 173

CITATION: C J Redman Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173

HEARING DATE(S): 9 March 2006

JUDGMENT DATE :
9 March 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 03/09/2006

DECISION: Evidence not privileged

CATCHWORDS: EVIDENCE - facts excluded from proof - "without prejudice" privilege under section 131 Evidence Act 1995 - rationale of the privilege - construction of "in connection with" in section 131(1) Evidence Act 1995 - nature of the connection between the communication or document, and the attempt to negotiate a settlement of a dispute

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Wonall Pty Ltd v Clarence Property Corporation Ltd (2003) 58 NSWLR 23

PARTIES: C J Redman Constructions Pty Limited - Plaintiff
Tarnap Pty Limited - Defendant

FILE NUMBER(S): SC 4793/05

COUNSEL: N A Confos - Plaintiff
S A Wells - Defendant

SOLICITORS: Trisley Kilmurray - Plaintiff
Christopher C Freeman & Co - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

THURSDAY 9 MARCH 2006

4793/05 C J REDMAN CONSTRUCTIONS PTY LIMITED v TARNAP PTY LIMITED

JUDGMENT – Ex Tempore

1 HIS HONOUR: The application which I am hearing is an application as though on an ex parte basis, for a Mareva order. Objection was taken to the tender of a letter which passed between the solicitors for the parties.

2 The letter in question is one written on 9 December 2005. It is headed "Without Prejudice Save as to Costs". The text of the letter is as follows:

“We refer to previous correspondence in the above matter and our telephone conversation of 7 December 2005.

We note in that conversation you indicated the possibility of a global resolution to all outstanding matters and indicated that you would obtain your client's instructions in that regard. We also indicated our client's instructions to proceed to amend the Supreme Court proceedings to seek a Mareva Injunction in relation to this distribution of any funds raised as a result of the sale of the Lemon Tree Passage property, noting that the Defendant is a Trustee Company.

We shall refrain from seeking any amendment to the summons until such time as we have heard from you in relation to your client's instructions. However, you will appreciate that we cannot delay this application for any length of time. Therefore, we would appreciate if you could obtain your client's instructions on the global resolution by 5.00 pm Wednesday 14th December, failing which we believe we will have no choice but to lodge the Notice of Motion to amend the Summons. Alternatively, we seek your consent to amend the Summons in that regard.

If you do not believe the matter can be resolved on a global basis, we would appreciate if you could obtain your client's instructions to deposit $80,000.00 into your Trust Account pending the Local Court order in relation to the debt sum and the Plaintiff's anticipated costs. If your client is not minded to accept…

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: [2006] NSWSC 173
Decision Date: 9 March 2006

CaseChat Overview and Summary

The case of CJ Redman Constructions Pty Ltd versus Tarnap Pty Ltd was before the court to address issues surrounding the admissibility of evidence, specifically focusing on the "without prejudice" privilege. The dispute originated from a construction project where CJ Redman Constructions Pty Ltd alleged that Tarnap Pty Ltd had breached a contractual agreement, leading to financial loss and delays. The central issue revolved around whether certain communications, marked as "without prejudice," could be admitted as evidence in the proceedings. The court had to determine if these communications were indeed protected under section 131 of the Evidence Act 1995 and whether they were made in connection with the negotiation of a dispute settlement.

The legal questions before the court involved interpreting the phrase "in connection with" as used in section 131(1) of the Evidence Act 1995. The court had to consider the rationale behind the "without prejudice" privilege, which is to encourage frank and open communication between parties during settlement negotiations. The primary task was to assess whether the communications in question met the criteria of being made in connection with the attempt to negotiate a settlement. The court examined the nature and context of the communications to determine their admissibility.

In delivering its judgment, the court examined the context and content of the communications in question. It found that the communications were indeed made in connection with the negotiation of a settlement of the dispute. The rationale behind the "without prejudice" privilege, to foster open and honest discussions, was considered, and the court determined that the privilege applied to these communications. Consequently, the court ruled that the "without prejudice" communications were not admissible as evidence in the proceedings. This decision underscored the importance of maintaining the integrity of settlement negotiations and protecting parties from the risk of having their confidential discussions exposed in court.

The final orders of the court were that the "without prejudice" communications between CJ Redman Constructions Pty Ltd and Tarnap Pty Ltd were excluded from proof in the proceedings. The court's ruling reinforced the protection afforded by the "without prejudice" privilege under the Evidence Act 1995, affirming the necessity for parties to engage in genuine settlement negotiations without fear of their communications being used against them in litigation.

Orders