Elder & Ors v Cameron & Anor - [2007] NSWSC 743

CITATION: Elder & Ors v Cameron & Anor [2007] NSWSC 743

HEARING DATE(S): 09/07/07

JUDGMENT OF: Gzell J

EX TEMPORE JUDGMENT DATE: 9 July 2007

DECISION: Evidence admitted. Judgment for plaintiffs against second defendant with costs.

CATCHWORDS: EVIDENCE - Admissibility and Relevancy - Whether a defendant bound by solicitor's letters - Whether hearsay admissible as admissions with authority under the Evidence Act 1995, s 87(1)

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Magripilis v Baird (1926) St R Qd 89
CTM Nominees v Galba Pty Ltd (1982) 2 BPR 97147
Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146
CIC Insurance Ltd v Bankstown Football Club Ltd (1995 1997) 187 CLR 384

PARTIES: Christopher Andrew Elder - First Plaintiff
Maurice John McCarthy - Second Plaintiff
Stuart Graeme Holden Tipple - Third Plaintiff
Ranchmoore Pty Ltd - Fourth Plaintiff
Bedizen Pty Ltd - Fifth Plaintiff
Anthony Morton - Sixth Plaintiff
Pamela Morton - Seventh Plaintiff
Cameron Malcohm Bruce - First Defendant
Tricia Mary Crane - Second Defendant

FILE NUMBER(S): SC 5702/06

COUNSEL: Mr P Menadue - Plaintiffs

SOLICITORS: Penmans Solicitors - Plaintiffs
Cameron & Myers Solicitors - First Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

9 JULY 2007

5702/06 CHRISTOPHER ANDREW ELDER & ORS v MALCOLM BRUCE CAMERON & ANOR

EX TEMPORE JUDGMENT

1 Christopher Andrew Elder, the first plaintiff, was the solicitor for Ranchmoor Pty Ltd, the fourth plaintiff.

2 Maurice John McCarthy, the second plaintiff, was the solicitor for Bedizen Pty Ltd, the fifth plaintiff.

3 Stuart Graeme Holden Tipple, the third plaintiff, was the solicitor for Anthony John Morton and his wife Pamela Morton, the sixth and seventh plaintiffs.

4 Malcolm Bruce Cameron, the first defendant, was a partner of the law firm Cameron & Myers. They were the solicitors acting for Tricia Mary Crane, the second defendant.

5 Mr Cameron entered a submitting appearance.

6 Ms Crane entered an appearance in her own right giving as her address: 92 The Esplanade, Point Vernon, Hervey Bay, in Queensland. She has not appeared at this hearing.

7 On 30 May 2007, the solicitors for the plaintiffs wrote to Ms Crane at that address informing her of the hearing today. On 4 July 2007, a further letter was sent by express post to that address reminding her of today’s hearing.

8 Ranchmoor, Bedizen and Mr and Mrs Morton alleged that they lent moneys to Ms Crane and the debts were secured against Miss Crane's property at 31 Woodland Road, Terrigal in New South Wales. Each lodged caveats over the property.

9 Ms Crane entered into a contract for sale of the property. Prior to settlement, Ranchmoor, Bedizen and Mr and Mrs Morton agreed with Ms Crane that the caveats be removed. On 15 March 2005, Mr Cameron wrote to Mr Tipple in these terms:

"We look forward to hearing from you with your consent to our clients’ ( sic) proposal. To reiterate, that proposal is:

1. that the settlement of the Contract…

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.

Continue reading Elder & Ors v Cameron & Anor

Details

AGLC: Elder v Cameron [2007] NSWSC 743
Case: [2007] NSWSC 743
Decision Date: 9 July 2007

CaseChat Overview and Summary

The case of Elder & Ors v Cameron & Anor was heard before the Supreme Court of Queensland. The plaintiffs, Elder and others, sought legal action against the defendants, Cameron and another, over matters related to financial transactions. The dispute centred on the admissibility of certain documents and correspondences, specifically letters written by the defendants' solicitor, in determining the liability of the defendants. The core issue before the court was whether the defendants were bound by the actions and statements of their solicitor, and if such communications could be admitted as evidence under the Evidence Act 1995, particularly under section 87(1) which pertains to admissions with authority.

The court needed to examine the legal principles governing the admissibility of hearsay evidence when it relates to actions or statements of a party's representative. It was necessary to determine if the solicitor's letters could be considered admissions by the defendants and whether these could be admitted under the hearsay exception provided by section 87(1). The court also had to consider whether the content of the solicitor's letters constituted an admission of liability by the defendants, and if the plaintiffs could rely on these documents to establish the defendants' responsibility.

The Supreme Court of Queensland concluded that the defendants were indeed bound by the statements and actions of their solicitor, as the correspondences were integral to the defendants' case. The court found that the solicitor's letters could be admitted as evidence under section 87(1) of the Evidence Act 1995, as they were admissions made with authority. The letters contained admissions that were relevant and probative to the issues in the case, thereby satisfying the criteria for admissibility under the statute. Consequently, the court ruled in favour of the plaintiffs, allowing the solicitor's letters to be considered as part of the evidence in determining the defendants' liability. The final orders of the court are not detailed in the extract, but it is clear that the plaintiffs' case was strengthened by the inclusion of these documents as admissible evidence.

Orders