Commonwealth Bank v Iinvest (No 4)
[2017] NSWSC 434
•01 February 2017
Supreme Court
New South Wales
Medium Neutral Citation: Commonwealth Bank v Iinvest (No 4) [2017] NSWSC 434 Hearing dates: 1 February 2017 Date of orders: 01 February 2017 Decision date: 01 February 2017 Jurisdiction: Common Law Before: Campbell J Decision: “Exhibit VD1” (excluding para 2, para 13, the heading at the foot of page 2, and the material appearing below it and above Mr Harker-Mortlock’s signature) admitted and marked “Exhibit C”.
Catchwords: EVIDENCE – admissibility of evidence – relevance – evidence pertaining to parties’ background and life achievements – held that evidence is relevant and admissible Category: Procedural and other rulings Parties: James Harker-Mortlock (Applicant)
Iinvest Pty Ltd (in liquidation) (First Respondent)
J H M Pty Ltd (Second Applicant)
Commonwealth Bank of Australia (Second Respondent)Representation: Counsel:
Solicitors:
P King (Applicant)
Ms Cheeseman SC with J White (Respondent)
Roderick Alexander Ian Storie (Applicant)
Campbell Hudson (Respondent)
File Number(s): 2013/108514
-
Mr King seeks to tender “Exhibit VD1” less para 2, the heading at the foot of page 2 and the material appearing under it. In argument, he says, he does not press para 13 if the tender’s prospects depended upon that. Mr White objects to the tender and, essentially, says that it's either not relevant or, to the extent to which it may be relevant, given my ruling on the voir dire, it may serve to bolster, I infer, in a self-serving way other evidence given in the affidavits which may yet be the subject of challenge when we get to cross examination. It's said that the Bank has not had the opportunity to check the details contained in this document given that it was only produced today.
-
I did ask Mr King what fact I would be asked to infer from this material if it was admitted and, with great respect, I do not think I extracted a very clear answer. It seems to me that material of this type could be relevant in a general way in terms of “identifying” Mr Harker-Mortlock, as it were, and putting him in context. It is commonplace in civil litigation for evidence to be given of the parties' background and their achievements in life. These matters may not always be strictly relevant to the issues in the proceedings but they help the judge obtain a feel for the person giving evidence, particularly when that person is a party.
-
Those considerations are at a relatively low level of relevance but I think they are sufficiently relevant in most cases for the evidence to be received. The specific complaint that this is late and the bank hasn't had the opportunity to check it is not one, I think, which bespeaks any real prejudice. This kind of background information can almost never be checked by an opposing party and I do not think the bank is at any particular disadvantage if I admit it.
-
I will admit “Exhibit VD1” excluding para 2, para 13, the heading at the foot of page 2, and the material appearing below it and above Mr Harker Mortlock's signature, and it may be marked “Exhibit C”.
**********
Decision last updated: 19 April 2017
0
0
0