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 984Category: 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…
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- Case
- [2014] NSWSC 290
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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