Kumar v Sydney Western Realty Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Kumar v Sydney Western Realty Pty Ltd & Anor [2021] NSWDC 430

Hearing dates:

2 – 5 August 2021

Date of orders:

05 August 2021

Decision date:

05 August 2021

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 48

Catchwords:

EVIDENCE – credibility evidence – whether exception to credibility rule established – challenge by a party to an opposing party’s note on basis of suggested fabrication – tender of document by opposing party as prior consistent statement – whether leave to adduce evidence should be granted – appropriate term for grant of leave

Legislation Cited:

Evidence Act 1995 (NSW) ss 55, 101A, 102, 108, 135, 136, 192

Cases Cited:

Leung v The Queen (2003) 144 A Crim R 441

R v Attallah [2005] NSWCCA 277

Stanoevski v The Queen (2001) 202 CLR 115

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Ms D Kumar (plaintiff)
Sydney Western Realty Pty Ltd (first defendant)
Mr A Singh (second defendant)

Representation:

Counsel:
Mr R O’Neill for the plaintiff
Mr M Klooster for the first defendant
Mr M Hutchings for the second defendant

Solicitors:
Keen Lawyers for the plaintiff
Clyde & Co for the first defendant
Gilchrist Connell for the second defendant

File Number(s):

2020/00062493

Publication restriction:

Nil

Judgment

Background

1. During the trial of this matter, I ruled on an evidentiary dispute as to the admissibility of a document and informed the parties that I would publish my reasons for admitting the tender of a document relied upon by the Second Defendant, subject to terms, at the same time I published my substantive reasons. In this short judgment, I separately publish my reasons for admitting the document. They should be read with reference to the more substantive reasons which will separately be published on Caselaw.

2. This proceeding features a claim of professional negligence by a solicitor (the second defendant) in acting for a purchaser (the plaintiff) on a conveyance of property in Toongabbie in the middle of 2019. That property comprised a main house and a granny flat.

3. The dispute between the purchaser and her solicitor emerged when it became apparent, subsequent to the completion of the sale, that the granny flat had been illegally converted from a garage. There had been a prohibition from the local Council on the use of the garage for habitable purposes. Not long after the sale was completed, the local council ordered that the garage be reinstated. The plaintiff claims different heads of financial loss.

4. The plaintiff complains, amongst other things, that she had not been advised by her solicitor of the fact that what she understood was the granny flat was not habitable or to advise her to make the necessary searches which would have enabled this state of affairs to be ascertained. Part of the solicitor’s defence is that he did inform the plaintiff of the opportunity for her to make the searches or inquiries which may have revealed the true position – namely, obtaining a building certificate and…