Lewis v Lamb - [2011] NSWSC 873

Supreme Court

New South Wales

Medium Neutral Citation: Peter Lawrence Lewis v Russell William Lamb [2011] NSWSC 873
Hearing dates: 11 August 2011
Decision date: 17 August 2011
Before: Ball J
Decision:
Proceedings dismissed with costs

Catchwords: EVIDENCE - admissibility - mediation privilege - whether s 30 of the Civil Procedure Act applies - s 30 only applies to court ordered mediation under Part 4 of Civil Procedure Act - other mediations do not attract mediation privilege of s 30
RESTITUTION - account stated - accounts as admissions of debt - whether statute barred - limitations period runs from time of accrual of underlying debt or cause of action, not time of admission - documents relied upon do not constitute admissions
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Limitation Act 1969 (NSW)
Cases Cited: Commonwealth Dairy Produce Equalisation Committee Ltd v McCabe (1938) 38 SR (NSW) 397; 55 WN (NSW) 144
Executor Trustee & Agency Co of South Australia Ltd v Thompson (1919) 27 CLR 162
Lewis v Nortex Pty Ltd (in liq) [2004] NSWSC 1143
Lewis v Wilson (1997) 42 NSWLR 228
Category: Principal judgment
Parties: Peter Lawrence Lewis (Plaintiff)
Russell William Lamb (Defendant)
Representation: J T Johnson (Plaintiff)
M W Young (Defendant)
Toomey Pegg (Plaintiff)
Lyons & Lyons (Defendant)

File Number(s): 2003/84023

Judgment

In 1991, the plaintiff, Mr Lewis, and the defendant, Mr Lamb, commenced carrying on business together wholesaling manchester. The business was carried on through a company, Nortex Pty Limited, which acted as trustee of the Nortex Unit Trust. Kation Pty Limited, a company controlled by Mr Lewis, held a 60 percent interest in Nortex and the unit trust and Lamru Pty Limited, a company controlled by Mr Lamb, held a 40 percent interest. Mr Lewis and Mr Lamb were the sole directors of Nortex.

The business operated successfully for several years. However, Mr Lewis and Mr Lamb started to quarrel in the latter part of 1995 about the terms on which Mr Lewis proposed to bring his son into the business. The quarrel became bitter. Mr Lamb left the business and a number of court proceedings were commenced. There was a mediation of the parties' disputes conducted by Sir Laurence Street in 1997. However, that mediation failed and, ultimately, Nortex was placed into liquidation and the business carried on by it was sold.

The principal proceedings concerning the disputes between the parties were heard by Hamilton J intermittently during 2002 to 2004. Mr Lamb was not a party to those proceedings, although Lamru was. His Honour delivered judgment on 29 November 2004 ( Lewis v Nortex Pty Ltd (in liq) [2004] NSWSC 1143), and also delivered three supplementary judgments.

In the current proceedings, commenced on 19 May 2003, Mr Lewis claims that he and Mr Lamb kept a private account not recorded in the books of Nortex or the Nortex Unit Trust involving various debits and credits against or in favour of each other. Mr Lewis says that the balance…

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.

Continue reading Lewis v Lamb

Details

AGLC: Lewis v Lamb [2011] NSWSC 873
Case: [2011] NSWSC 873
Decision Date: 17 August 2011

CaseChat Overview and Summary

The case of Lewis v Lamb involved a dispute between the plaintiff, Lewis, and the defendant, Lamb, concerning the admissibility of evidence and the statute of limitations regarding an account stated. The matter was heard in the Supreme Court of Queensland. The primary issue was whether the statements made during a mediation process were privileged and thus inadmissible in court. Additionally, the court had to determine whether the statute of limitations applied to the debt in question.

The court considered whether section 30 of the Civil Procedure Act applied to the mediation privilege. This section only applies to court-ordered mediations under Part 4 of the Civil Procedure Act. The court found that the mediation in question was not a court-ordered mediation and therefore did not attract the mediation privilege under section 30. Consequently, the statements made during the mediation were not privileged and were admissible as evidence.

Furthermore, the court examined the issue of the statute of limitations in relation to the account stated. The court held that the limitations period runs from the time of the accrual of the underlying debt or cause of action, not from the time of admission. The documents relied upon by the plaintiff did not constitute admissions of the debt, and therefore, the limitations period was not triggered by these documents.

The court ultimately ruled that the mediation statements were admissible and that the statute of limitations did not apply to the account stated in the documents provided. The final orders were made in favour of the defendant, Lamb, dismissing the plaintiff's claims.

Orders