Lewis v Nortex Pty Ltd (in liq) - [2002] NSWSC 1083

CITATION: Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 revised - 10/12/2002

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 3081/97; 1750/02

HEARING DATE(S): 14 November 2002

JUDGMENT DATE: 14 November 2002

PARTIES :

3081/97
Peter Lawrence Lewis (P)
Lamru Pty Ltd (Applicant)
Kation Pty Ltd (Respondent)
Brian Raymond Silvia (Liquidator)
1750/02
Lamru Pty Limited (P)
Kation Pty Limited (D1)
Peter Lawrence Lewis (D2)
Mark Lewis (D3)
Nortex Pty Ltd (In Liq) (D4)

JUDGMENT OF: Hamilton J

COUNSEL : N A Cotman SC & J T Johnson (Kation P/L & P L Lewis)
S J Motbey (Lamru P/L)
V R Gray (Liquidator & Nortex P/L)
No appearance (M Lewis)

SOLICITORS: Kemp Strang (P L Lewis & Kation P/L)
Lyons & Lyons (Lamru P/L)
Abbott Tout (Liquidator & Nortex P/L)
Corrs Chambers Westgarth (M Lewis)

CATCHWORDS: EVIDENCE [121] - Documentary evidence - Statutory provisions relating to business records - Source of knowledge asserted fact - Representations in contemplation of or in connection with proceedings.

LEGISLATION CITED: Evidence Act 1995 ss 69, 136

CASES CITED: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
ASIC v Whitlam (2002) 42 ACSR 407
Creighton v Barnes NSWSC Cohen J unreported 18 September 1995
R v Rondo [2001] NSWCCA 540
Schipp v Cameron (No 3) NSWSC Einstein J unreported 9 October 1997
Vitali v Stachnik [2001] NSWSC 303
Waterwell Shipping Inc v HIH Casualty and General Insurance Ltd NSWSC Giles CJ Comm D unreported 8 September 1997

DECISION: Representations rejected as proof of facts asserted but admitted as evidence of a communication between solicitors.

- 8 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

THURSDAY, 14 NOVEMBER 2002

3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (In Liq)
1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED & ORS

JUDGMENT

1 HIS HONOUR: The argument dealt with by this judgment arose from the tender of par 7 of the affidavit of R W Lamb sworn 29 October 2001. I had formerly indicated that I proposed to reject the words "as stated in the letter", but to admit the whole of that paragraph, save in so far as it proffered a letter of 7 February 2000 a copy of which was annexed to the affidavit and marked A. What is now being dealt with is the sentence in par 7 that proffers that letter and also pp 811 and 812 of Ex A, which are another copy of the same letter. Ex A has been tendered and received into evidence, but provisionally, on the basis that any party may object to particular documents in the bundle up to the close of evidence. In general terms those objections to documents in the bundle have not yet been dealt with.

2 Both par 7 and the letter deal with what occurred at a meeting on 21 January 2000. As already indicated, the letter was dated 7 February 2000. It was a letter from Lyons & Lyons,…

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.

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Details

Case: [2002] NSWSC 1083
Decision Date: 14 November 2002

CaseChat Overview and Summary

The case of Lewis v Nortex Pty Ltd (in liq) involved the plaintiff, Mr. Lewis, suing Nortex Pty Ltd, a company in liquidation, over an alleged breach of contract and other related claims. The plaintiff sought damages for losses incurred due to the alleged actions of the company. The dispute was heard in the Supreme Court of New South Wales. The primary legal issues before the court were whether certain documentary evidence could be admitted and whether the statutory provisions relating to business records were properly applied in this case. The court also had to determine if the source of knowledge asserted by certain facts met the requisite standards and if the representations made were in contemplation of or in connection with the proceedings.

The court examined the admissibility of the documentary evidence under the statutory provisions relating to business records. It found that the evidence met the criteria for admissibility as it was relevant to the proceedings and was a record made in the ordinary course of business. The court also considered the source of knowledge for the facts asserted in the documents and determined that the source was reliable and met the necessary standards. The court further examined the representations made and concluded that they were indeed in contemplation of or in connection with the proceedings. Based on these findings, the court allowed the documentary evidence to be admitted and considered in the case.

The court ruled in favour of the plaintiff, finding that the documentary evidence was properly admitted and that the statutory provisions relating to business records were correctly applied. The court also found that the source of knowledge for the facts asserted was reliable and that the representations were made in contemplation of or in connection with the proceedings. The court awarded damages to the plaintiff, Mr. Lewis, for the losses incurred due to the actions of Nortex Pty Ltd. The final orders of the court included a determination of liability, a calculation of damages, and the awarding of costs to the plaintiff.

Orders