Commonwealth Bank v Iinvest (in Liquidation) (No 2)

[2017] NSWSC 431

Supreme Court

New South Wales

Medium Neutral Citation:	Commonwealth Bank v Iinvest (in Liquidation) (No 2) [2017] NSWSC 431
Hearing dates:	31 January 2017
Date of orders:	31 January 2017
Decision date:	31 January 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The document is admitted as Exhibit 2.505.
Catchwords:	EVIDENCE – admissibility – authenticity of documents – duplicate bank records – consideration of Evidence Act 1995 (NSW) ss 48(1)(e), 51 and 133 – consideration of relevance – document admitted
Legislation Cited:	Evidence Act 1995 (NSW)
Category:	Procedural and other rulings
Parties:	James Harker-Mortlock (Applicant) J H M Pty Ltd (Second Applicant)   Iinvest Pty Ltd (in liquidation) (First Respondent) Commonwealth Bank of Australia (Second Respondent)
Representation:	Counsel: P King (Applicant) Ms Cheeseman SC with J White (Respondent) Solicitors: Roderick Alexander Ian Storie (Applicant) Campbell Hudson (Respondent)
File Number(s):	2013/108514

EX TEMPORE JUDGMENT (REVISED)

1. I am dealing with the tender of documents in accordance with the tender schedule which is MFI 2.  Many of the documents on the schedule which runs to five pages are not objected to but many are and there is an objection to many of the documents in relation to their authenticity.  This arises in relation to the document I am currently dealing with which is to be found at volume 2, p 505.  It is a document which is on the Commonwealth Bank letterhead which confirms that a new bill has been discounted and provides the particulars.

2. The difficulty arises in a number of ways.  I inspected the document in accordance with the provisions of Evidence Act 1995 (NSW) s 133. It bears a date 18 July 2016 and an endorsement at its foot in these terms: "This letter is a duplicate of a previously issued letter." It is stamped or has a water mark, as it was put by Ms Cheeseman of senior counsel in argument, duplicated across its top on the right‑hand side. It is unsigned and identifies a person as its author who is a manager in the bank but I am informed by Mr King of counsel that the name is not one that his client recognises.

3. This case concerns the bank's application for possession.  There is no issue in the case that the bank is the mortgagee of two rural properties known as Brecon and Blackburn.  It is the holder of the first registered mortgage of Torrens title land.  There can be no dispute that those mortgages were granted by the registered proprietor, a company named Iinvest Pty Ltd controlled by Mr Harker‑Mortlock, to secure the company's indebtedness to the bank.  From material documents already in evidence, for instance, I have a copy of each mortgage and the registered memorandum that contains the terms of the mortgage as incorporated in the registered dealing.

4. I am told by Mr King that there is an issue about the guarantees said to have been given by Mr Harker‑Mortlock as the controlling hand and guiding mind of the corporation, but I do not understand it to be said that no guarantee whatsoever was given.  The case really turns upon, to put it very shortly, what the cross‑claimants, that is to say the defendants, say is an entitlement to relief mainly for statutory unconscionability, though the causes of action advanced in the cross‑claim are elaborated in various ways.  I will not go into all of the details for the purpose of these reasons.

5. I am concerned at this stage only of course with questions of admissibility of evidence.  I am not concerned with the decision of fact or whether these documents will be accepted as reliable evidence in due course.  All those matters are for the end of the case and not now.  There is no doubt that Iinvest and Mr Harker‑Mortlock are customers of the bank or were at the times material to this case customers of the bank.

6. Evidence Act1995 (NSW) s 48 provides that a party may adduce evidence of the contents of a document in various ways. Those ways include, according to (1)(e)(i), tendering a document that “forms part of the records … kept by a business”, and (1)(e)(ii), “is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary”.

7. Under section 51 of the Act the best evidence rule was abolished. Section 51 is in the following terms:

"The principles and rules of the common law that relate to the means of proving the contents of documents are abolished."

8. I am satisfied that the duplicate purporting to be a copy of the original is in sufficient form to be received in evidence.  The basic requirement of admissibility of course is relevance.  Given that all of the issues between the parties, including the bank's claim for possession and in debt and the cross‑claimant's claim for relief for unconscionability, will require an examination of all of the circumstances of the various dealings between them over, as it turns out, a period of years.

9. I am satisfied that the document at p 505 of volume 2 of the Court book is relevant in that if I accept it, it could rationally affect, at least indirectly, the assessment by me of the probability of the existence of a fact in issue in the proceedings, and in the circumstances I propose to admit this document as exhibit 2.505.

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Decision last updated: 19 April 2017