Commonwealth Bank of Australia v Jason Hamilton; Commonwealth Bank of Australia v Karen Hamilton

[2010] NSWSC 1140

CITATION:	Commonwealth Bank of Australia v Jason Hamilton; Commonwealth Bank of Australia v Karen Hamilton [2010] NSWSC 1140
HEARING DATE(S):	29/09/10
JUDGMENT DATE :	29 September 2010
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	29 September 2010
DECISION:	1. Admit pars 1-51, 52-55, 56-66 of affidavit of Peter James Webb, sworn 17 September 2009. 2. Reject the tender of par 68 to the end.
CATCHWORDS:	PROCEDURE - civil - documents - affidavits - application to tender affidavit - whether statements constitute admissions - relevance - par 68 to the end of the affidavit rejected
LEGISLATION CITED:	Evidence Act 1995 s 55, s 59, s 81
CATEGORY:	Procedural and other rulings
CASES CITED:	Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958
PARTIES:	Commonwealth Bank of Australia Jason Hamilton Karen Hamilton Peter Webb Lawcover Insurance Pty Limited
FILE NUMBER(S):	SC 2007/263396; 2007/263397
COUNSEL:	Mr DA Smallbone and Ms LJ Freiwald Mr K Ginges Mr D Lloyd Mr SR Donaldson SC and Mr G Ng
SOLICITORS:	Gadens Lawyers (Commonwealth Bank of Australia) A. Luong & Associates (Jason Hamilton, Karen Hamilton) TressCox Lawyers (Peter Webb) Yeldham Price O'Brien Lusk (Lawcover Insurance Pty Limited)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

29 September 2010

2007/263396 COMMONWEALTH BANK OF AUSTRALIA v

JASON HAMILTON

2007/263397 COMMONWEALTH BANK OF AUSTRALIA v

JUDGMENT

1 HIS HONOUR: The plaintiff seeks to tender in its case various paragraphs of the affidavit of Peter James Webb, sworn 17 September 2009, which have been identified by Mr Smallbone. Mr Webb is a third defendant and second cross-defendant in the proceedings.

2 The plaintiff's case against Mr Webb is founded on the claim of breach of warranty of authority (see particularly par 29 of the further amended statement of claim).

3 Mr and Mrs Hamilton, the first and second defendants and cross-claimants, join in the plaintiff's tender. Their cross-claim against Mr Webb is based on a claim of a breach of duty of care and the breach of his legal retainer to act for them.

4 Mr Lloyd, who appears for Mr Webb, has told the court that he did not propose to read the affidavit and opposes the tender.

5 The first argument advanced was that the affidavit must be read by the plaintiff so that Mr Webb would be then available for cross-examination: see Austress Freyssinet Pty Ltd v Marlin International Pty Ltd [2002] NSWSC 958.

6 It was made clear by Mr Smallbone that those parts of the affidavit sought to be tendered were admissions made by Mr Webb and the exception to the hearsay rule was relied on.

7 The contents of the affidavit are previous representations and fall within the hearsay rule: s 59 Evidence Act 1995.

8 Section 81(1) Evidence Act is as follows:

"The hearsay rule and the opinion rule do not apply to evidence of an admission."

9 The word "admission" is defined in the Dictionary to the Evidence Act as follows:

"Admission means a previous representation, that is,

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding."

10 The principal focus of the debate is whether the previous representations in Mr Webb's affidavit are adverse to his interests in the outcome of the proceeding.

11 Mr Lloyd's position is that the material sought to be tendered is not in any way against the interests of Mr Webb and could not be said to amount to admissions.

12 Mr Smallbone argued, on the other hand, that any fact that the plaintiff wishes to prove and Mr Webb does not want to concede is adverse to Mr Webb's interests. Mr Ginges joined in that submission and made reference to particular paragraphs which, although they might be considered exculpatory on their face, were said to be against Mr Webb's interests.

13 In my view, pars 1-51, 52-55, 56-66, are adverse to Mr Webb's interests. They provide evidence of Mr Webb's experience as a solicitor, his relationship with Mr Lee and Miss Adams, his relationship with Tony Sakr and Napier 888, Mr Webb's involvement in the sale of the Lydbrook Street, Wentworth development which includes apartments purchased by Mr and Mrs Hamilton and the disbursement of the excess loan funds.

14 All of this material could rationally affect, directly or indirectly, the assessment of the probability of the breach of Mr Webb's legal retainer. It could also rationally affect, indirectly, the claim of breach of warranty of authority. It is relevant evidence: s 55 Evidence Act.

15 Whilst par 68 to the end might be argued to be adverse in some way to Mr Webb's interests, on the face of the material presently before me, I am not persuaded that it is. Furthermore, I am not satisfied that it is evidence that, if it were accepted, could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings: s 55 Evidence Act.

16 I reject the tender of par 68 to the end.

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