HP Mercantile Pty Ltd v Clements - [2014] NSWSC 290

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: HP Mercantile Pty Ltd v Clements [2014] NSWSC 290
Hearing dates: 12, 14 March 2014
Decision date: 19 March 2014
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Relevant paragraphs of affidavit admitted subject to limitation. Memorandum contained in relevant exhibits of affidavit admitted. Remaining documents contained in relevant exhibits of affidavit and referred to in memorandum admitted subject to limitation.

Catchwords: EVIDENCE - admissibility and relevancy - hearsay - whether relevant documents are admissible as business records under Evidence Act 1995 (NSW) s 69 - where identity of author of relevant documents is unknown - whether relevant documents contained previous representations made or recorded in the course of, or for the purposes of, relevant business - whether relevant representations were made by a person who had or might reasonably be supposed to have had knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by such a person.
EVIDENCE - admissibility and relevancy - whether relevant documents should be excluded under s 135 on the basis that documents are unfairly prejudicial or misleading.
EVIDENCE - admissibility and relevancy - application to seek direction that relevant evidence is not to be admitted under Evidence Act 1995 (NSW) s 169 - where party had failed to comply with request to call witness - whether plaintiff's refusal to comply with request made without reasonable cause.
Legislation Cited: - Evidence Act 1995 (NSW) ss 69, 69(1)(a)(i), 69(1)(b), 69(2), 135, 136, 167, 169(1)(c), 169(4), 169(5), 183
Cases Cited: - HP Mercantile Pty Ltd v Clements [2014] NSWSC 213
- Rickard Constructions v Rickard Hales Moretti [2004] NSWSC 984
Category: Interlocutory applications
Parties: HP Mercantile Pty Ltd (Plaintiff)
Phillip Clements (Defendant)
Representation: Counsel:
P M Knowles (Plaintiff)
C R C Newlinds SC/A d'Arville (Defendant)
Solicitors:
Versace McKenzie Lawyers (Plaintiff)
Legal & Commercial Solutions (Defendant)

File Number(s): 2009/289202

Judgment

I previously ruled as to the admissibility of certain paragraphs of, and exhibits to, an affidavit of Mr Ross Chapman dated 9 October 2013, and I indicated I would deliver more detailed reasons for that ruling. These are my reasons for that ruling.

The Plaintiff ("HP Mercantile") seeks to read paragraphs 83 and 86 of the Mr Ross Chapman's affidavit and Exhibits RC 19 and RC 20 to that affidavit. Paragraphs 83 and 86 exhibit what are described in those paragraphs respectively as true copies of schedules of Treetop Pty Ltd ("TPL") setting out the Queensland harvesting and marketing costs for the years ended 30 June 1999 and the period commencing 1 July 1999 and ending 22 March 2000. That description involves a significant gloss on the relevant documents, which do not, on their face, indicate that they are schedules prepared by TPL, although they appear to relate to TPL's affairs. Mr Chapman does not indicate that he has any personal knowledge whether the schedules were or were not in fact prepared by TPL.

Exhibits RC 19 and RC 20…

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.

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Details

Case: [2014] NSWSC 290
Decision Date: 19 March 2014

CaseChat Overview and Summary

HP Mercantile Pty Ltd sought to recover a debt from Clements, which led to a dispute over the admissibility of certain documents. The Local Court of New South Wales had to determine whether these documents were admissible under the Evidence Act 1995 (NSW). The primary issues were whether the documents were business records as defined in section 69 of the Act and whether they contained previous representations made for business purposes by someone knowledgeable about the facts. Additionally, the court had to consider whether the documents should be excluded under section 135 due to potential prejudice or misleading nature. Finally, the court had to decide on an application by the defendant to exclude the evidence under section 169 because the plaintiff had failed to call a specific witness.

The court examined the identity of the authors of the documents and whether they were made for business purposes. It found that the documents were indeed business records because they were created in the ordinary course of business and contained representations made by someone knowledgeable about the relevant facts. The court also assessed whether the documents were unfairly prejudicial or misleading, concluding they were not. However, the court granted the defendant's application under section 169 to exclude the evidence because the plaintiff had not provided reasonable cause for failing to call the requested witness.

The court concluded that the documents were admissible under the Evidence Act, but their exclusion under section 169 meant they could not be used in the trial. The court found that the plaintiff's failure to call the witness without reasonable cause justified the exclusion of the evidence. The court's decision underscored the importance of compliance with requests to call witnesses and the potential consequences of non-compliance on the admissibility of evidence.

Orders