Peri Australia Pty Limited v Celtic Form Pty Limited

[2009] NSWDC 393

CITATION:	Peri Australia Pty Limited v Celtic Form Pty Limited [2009] NSWDC 393
JUDGMENT DATE:	6 October 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	The paragraphs are relevant and admissible.
CATCHWORDS:	CIVIL LAW - evidence - objection to tender to paragraphs in a document on grounds of breach of the opinion rule, matters of form and relevance
LEGISLATION CITED:	Evidence Act 1995 s 79
PARTIES:	Peri Australia Pty Limited v Celtic Form Pty Limited
FILE NUMBER(S):	6111/08
COUNSEL:	Mr H Stitt (for the plaintiff) Mr B Hull (for the defendant)

JUDGMENT

1. Mr Stitt, who appears for the plaintiff, has objected to paragraph 37 through to and including paragraph 52 of a document that it was previously agreed would be admitted subject to objections and became Exhibit 1.

2. This case concerns a claim by the plaintiff for payment from the second defendant for supply of materials to the first defendant. The first defendant has gone into liquidation and the second defendant is sued as guarantor. Part of the defence of the second defendant relies upon its assertion that the plaintiff itself breached its contract with the first defendant and as a result of that breach the first defendant had to incur expenses to put itself back in the position it would have been if the breach had not occurred. There is a legal issue in this case as to whether the second defendant will be able to rely upon a defence of that kind, which is like adopting a set off available to another party.

3. The paragraphs objected to are assertions by the second defendant, Mr McGuire, concerning expenses which the first defendant, his company Celtic Form Pty Limited in liquidation, had to incur to rectify, so to speak, what they claimed was the breach of contract by the plaintiff. Mr McGuire was, at all relevant times, the sole director of Celtic Form Pty Limited. The paragraphs in the statement refer to Exhibit 2, which is a folder of documents called FPM1 which accompanies Mr McGuire’s statement, Exhibit 1. Exhibit 2 was also admitted subject to any objections. The documents in Exhibit 2 which are relevant to Mr Stitt’s objection comprise a list, presumably compiled by Mr McGuire, of additional expenses which the first defendant would not have otherwise incurred if - as Mr McGuire claims - the plaintiff had not breached its contract. In addition there are invoices from a company which was hired to manage the project or part of the project and there are records from a bank indicating the payments made by Mr McGuire or Celtic to the various persons who had to be paid as part of what the defendants say was the plaintiff’s breach of contract.

4. Mr Stitt’s first point is that the evidence breaches the opinion rule and that in order to give this evidence Mr McGuire, as author of the statement, needs to bring himself within s 79 of the Evidence Act 1995 as a person with “specialised knowledge based upon the person’s training, study or experience”. In my opinion, none of the evidence proposed to be led involves any expression of opinion by Mr McGuire. They are simply assertions by the principal of the business of the occurrence of certain business transactions which involved payments. He is asserting that certain payments were made to certain individuals and has extracted the relevant documentation, including bank records. None of that involves, in my opinion, the expression of any opinion by Mr McGuire and the opinion rule is not breached.

5. Mr Stitt objects to what is effectively the list from pages 63a to 63f of Exhibit 2 which lists - as items numbered 1 through to 170 - what Mr McGuire calls in paragraph 38 of his statement “particulars of the additional expenses that Celtic would not otherwise have incurred if Peri” had not alleged breached the contract. Those pages do not appear to represent business records. They are, however, simply assertions by Mr McGuire, as principal of the company, of payments made by him or by the company. Had they been incorporated directly into the statement then they would, in my opinion, have been admitted as part of the statement. I do not regard that matter of form as being the basis for an objection.

6. The other documents are documents related to bills received by the first defendant for expenses incurred by it as a result of what it says was the breach of the contract by Peri or bank records indicating payments. Those documents are relevant to the payments made if the second defendant is able to rely upon such a defence.

7. For those reasons, in my opinion, the paragraphs objected to by Mr Stitt are both relevant and admissible.

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