Hyperion Property Syndicates Ltd v CBRE Pty Ltd

In the Supreme Court of New South Wales, Hyperion Property Syndicates Ltd, the plaintiff, sought to establish the existence of certain conversations that were allegedly held between representatives of the defendant, CBRE Pty Ltd, and third parties. The plaintiff sought to prove these conversations were of a particular nature and content through oral testimony. The case proceeded on the basis of pleadings and the plaintiff's contention was that the evidence should be given orally. The defendant contested this, arguing that the evidence of the conversations should be provided by affidavit.

The primary legal issue before the court was whether the evidence of the conversations in question could be provided by affidavit, or if it must be given orally in court. This issue arose from the nature of the proceedings, which had been conducted on the basis of pleadings. The court had to determine if the prima facie position that evidence must be given orally applied, or if the parties' conduct and reliance on affidavit evidence had altered this position.

The court held that the prima facie position is that evidence in chief of witnesses at trial must be given orally, in line with the statutory requirements of the Supreme Court Rules. However, the court noted that this principle can be departed from if there are exceptional circumstances. The court considered the conduct of the parties and the nature of the evidence in question. It found that the parties had proceeded on the basis that the evidence would be given by affidavit, and that the disputed conversations were of a type that could be adequately proved by affidavit. As such, the court ordered that the evidence of the conversations be given by affidavit rather than orally.

The court ordered that the evidence of the conversations in question be provided by affidavit, and not orally. This outcome reflects the court's consideration of the procedural context and the nature of the evidence. The decision underscores the importance of adhering to the principles of procedural fairness and the need to consider the conduct of the parties in determining the appropriate form of evidence.