Kumar v Sydney Western Realty Pty Ltd

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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…

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Details
Case
[2021] NSWDC 430
Decision Date

CaseChat Overview and Summary

Kumar, a real estate agent, brought proceedings against his former employer, Sydney Western Realty Pty Ltd, seeking damages for unfair dismissal. Kumar alleged that he was dismissed because he refused to engage in illegal activities on behalf of the employer. The employer, on the other hand, denied the allegations and claimed that Kumar was dismissed for gross misconduct, including fraudulent conduct and unauthorised use of the employer's credit card. The dispute before the court was whether Kumar had been dismissed for reasons connected with his refusal to engage in illegal activities or for gross misconduct, as alleged by the employer.

The court had to determine whether the employer could lead evidence of a note written by Kumar, which the employer claimed was a fabrication, in order to challenge Kumar's credibility. The court had to decide whether the employer had established an exception to the general rule that a party cannot lead evidence to attack the credibility of an opponent. The court also had to decide whether the employer could lead evidence of a document that Kumar had tendered as a prior consistent statement to refresh his memory, as this evidence could be used to attack Kumar's credibility.

The court held that the employer had not established an exception to the general rule that a party cannot lead evidence to attack the credibility of an opponent. The court found that the employer's evidence was not relevant to any issue in the proceeding and was not admissible. The court also held that the employer could not lead evidence of the document that Kumar had tendered as a prior consistent statement to attack Kumar's credibility. The court held that the document was not admissible as it was not relevant to any issue in the proceeding and was not a prior consistent statement. The court granted Kumar leave to adduce evidence of the employer's note, as it was relevant to the issue of whether Kumar had been dismissed for reasons connected with his refusal to engage in illegal activities.

The court ordered that the employer pay Kumar's costs of the proceeding. The court also ordered that Kumar's claim for damages for unfair dismissal be remitted to the Fair Work Commission for determination.

Orders

Orders of the court

See paragraph 48

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.