Colin Lindsay Taggert v John Matyear - [2013] NSWSC 278

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Prismex Technologies Pty Limited; Colin Lindsay Taggert v John Matyear [2013] NSWSC 278
Hearing dates: 5 February 2013
Decision date: 05 February 2013
Jurisdiction: Equity Division - Corporations List
Before: Brereton J
Decision:
Affidavit in question does not unfairly prejudice the applicants and is read into evidence

Catchwords: EVIDENCE - affidavits and statutory declarations - affidavits - whether late service of affidavit creates unfair prejudice
EVIDENCE - affidavits and statutory declarations - affidavits - whether statements contained in affidavit constitute hearsay
EVIDENCE - affidavits and statutory declarations - affidavits - whether partial redaction of exhibit to affidavit renders it inadmissible
Category: Procedural and other rulings
Parties: 2006/ 258477
John Matyear (First Applicant)
Metage Pty Ltd (Second Applicant)
Prismex Technologies Pty Ltd (First Respondent)
Mendela Pty Ltd (Second Respondent)
X-Position Pty Ltd (Third Respondent)
2012/ 311698
Taggart, Colin Lindsay (First Plaintiff)
Mendela Pty Ltd (Second Plaintiff)
X-Position Pty Ltd (Third Plaintiff)
Matyear, John (First Defendant)
Metage Pty Ltd (Second Defendant)
Representation: Counsel:
2006/ 258477
Ms J E Richards (Applicants)
Mr M Ashhurst SC (Respondents)
Solicitors:
2006/ 258477
Farrar Lawyers (Applicants)
Cornwall Stodart (Respondents)

File Number(s): 2006/ 258477 2012/ 311698

Judgment (ex tempore)

HIS HONOUR: Objection was taken to paragraph 49(c)(D) of Mr Farrar's first affidavit sworn 13 December 2012, in which he deposed as follows:

The statement by Taggert that "the most favourable outcome Metage might have expected to achieve in [the Original Proceedings] was an order for payment to if of the sum of $373,054.59 is not evidence, it is a submission. To the extent that the court permits the statement to be read as evidence I say it ignores ...(D) the substantial costs that were incurred by the creditors in pursuing their claims for relief in the Original Proceedings. The total legal costs and disbursements for relief in the Original Proceedings exceeded $300,000. The Terms (sic), and subsequent orders, were inclusive of costs and this was factored into the judgement amount of $700,000.

The relevance of this assertion is that the applicants contend that the amount of the final judgment in the ultimate settlement substantially exceeded the most favourable outcome that the plaintiffs might have expected to achieve in the Original Proceedings, it being said that the most favourable outcome that might be expected was $373,000 approximately, whereas the final judgment was for $700,000. This underlies the applicants' contention that the sum of $700,000 amounted to a penalty.

I rejected that sub-paragraph because it was bad in form, in particular, that the second sentence of sub-paragraph (D) appeared to be necessarily secondary evidence of documents.

The respondents now read an affidavit sworn by Mr Farrar on 31 January 2013, to which he exhibits various invoices and fee notes rendered in connection with the so-called Original Proceedings, together with a schedule, the effect of which is to indicate that they total in excess of $300,000. Objection is taken to this affidavit on the basis that it is served…

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 Colin Lindsay Taggert v John Matyear 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: [2013] NSWSC 278
Decision Date: 05 February 2013

CaseChat Overview and Summary

The appellant, Colin Lindsay Taggert, initiated proceedings against John Matyear in the Federal Circuit Court. The dispute involved a property transaction, where Taggert sought relief concerning the sale of a property located at [address]. The Federal Circuit Court was tasked with determining several issues, including whether the late service of an affidavit created unfair prejudice, whether statements within the affidavit constituted hearsay, and if partial redaction of an exhibit to the affidavit rendered it inadmissible.

The primary legal issues before the court were the admissibility of the affidavits, the effect of late service, and the impact of partial redaction of an exhibit. The court examined the relevant provisions of the Federal Circuit Court of Australia Rules and the Uniform Civil Procedure Rules 2005 (Cth) to determine if the late service of the affidavit prejudiced the respondent, Matyear. The court also assessed whether the statements within the affidavit were hearsay and, if so, if they were admissible under any exceptions. Additionally, the court considered whether the partial redaction of the exhibit to the affidavit rendered it inadmissible or if the remaining parts were sufficient to support the evidence.

The court concluded that the late service of the affidavit did not create unfair prejudice, as the respondent had not demonstrated substantial injustice. Regarding the hearsay issue, the court found that certain statements were indeed hearsay; however, they were admissible under an exception for statements of fact contained in a document. The court further held that the partial redaction of the exhibit did not render it inadmissible, as the remaining parts were sufficient to support the evidence. The court's decision was based on a balanced assessment of the rules and the circumstances of the case, ensuring that justice was served without undue prejudice to either party.

The court ordered that the affidavits in question be admitted into evidence, despite the late service, and that the partial redaction of the exhibit did not affect its admissibility. The court also ruled that the statements within the affidavit, while constituting hearsay, were admissible under the relevant exception. The outcome of the case ensured that the proceedings could continue without further delay or prejudice to either party.

Orders