Peter Vitek v Estate Homes Pty Ltd - [2013] NSWSC 1805

Supreme Court

New South Wales

Medium Neutral Citation: Peter Vitek & Anor v Estate Homes Pty Ltd & Ors [2013] NSWSC 1805
Hearing dates: 29 and 30 October 2013
Decision date: 30 October 2013
Jurisdiction: Equity Division
Before: Rein J
Decision:
Admit the portions in paragraphs 29-100 of Mr O'Donnell's affidavit to which objection was taken

Catchwords: EVIDENCE - whether evidence of a witness for the plaintiffs about what was said between himself and the first defendant in the presence of the third defendant is admissible against the third defendant given the fact that the plaintiffs did not intend to call the first defendant in their case
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: Lustre Hosiery Limited v York (1935) 54 CLR 134, [1935] HCA A71
Texts Cited: Stephen Odgers' Uniform Evidence Law, 10th ed, (2012) Lawbook Co
Category: Interlocutory applications
Parties: Peter Vitek (first plaintiff)
Shoshanna Vitek (second plaintiff)
Veeda Taheri (third defendant)
Representation: Counsel: Counsel: Mr Pritchard SC and Mr B. Zipser (first and second plaintiff)
Mr Coles and Mr Sneddon (third defendant)
Solicitors: Farrar Lawyers (first and second plaintiff)
McLaughlin & Riordan (third defendant)

File Number(s): 2005/258339

ex tempore Judgment

REIN J: These proceedings involve a claim by the plaintiffs against the third defendant, Mrs Taheri, that she gave, along with her husband, a guarantee to the plaintiffs of obligations of Estate Homes Pty Ltd ("Estate Homes") under a contract for the sale of land entered into by Estate Homes with the plaintiffs. Estate Homes and Mr Taheri have long ago been held liable to the plaintiff and the plaintiffs seek to recover a judgment in the same amount against Mrs Taheri. Mrs Taheri denies that she signed the guarantee. The plaintiffs claim that Mrs Taheri did sign the guarantee or, alternatively, that Mr Taheri signed the guarantee exercising a power of attorney given by Mrs Taheri to her husband, or that she subsequently ratified the execution of the guarantee by Mr Taheri, or is estopped from denying that the guarantee was executed by her or with her authority.

The plaintiffs in their case rely, inter alia, on the evidence of Mr Bernard O'Donnell who was, at the time of the contract of sale, acting for Estate Homes, Mr Taheri and, on one view of the evidence, Mrs Taheri as well, and who has deposed to conversations which he had with Mr and Mrs Taheri about the contract for sale. The question of whether Mr Taheri was empowered to execute the guarantee on behalf of Mrs Taheri, if she did not sign it herself, involves, or may involve, depending on the outcome of a separate legal issue, the question of what Mrs Taheri knew about the transaction and her involvement and interest in that transaction. Mrs Taheri's knowledge and involvement may also be relevant to the question of ratification and possibly also, too, the estoppel.

Mr Sneddon, junior counsel for the third defendant, who has the conduct of argument in relation to objections to…

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: [2013] NSWSC 1805
Decision Date: 30 October 2013

CaseChat Overview and Summary

The case of Peter Vitek v Estate Homes Pty Ltd involved a dispute concerning the admissibility of evidence in a legal proceeding. The plaintiff, Peter Vitek, was seeking damages against the defendants, Estate Homes Pty Ltd, and others. The core of the dispute was whether certain statements made by one defendant in the presence of the third defendant could be used as evidence against the third defendant, even though the plaintiff did not intend to call the first defendant as a witness. This issue was brought before the court for determination.

The legal issue before the court was whether the evidence of a witness for the plaintiffs regarding statements made between the first defendant and the plaintiff in the presence of the third defendant could be admitted against the third defendant. The central question was whether the third defendant had the opportunity to respond to the statements and whether the admission of such evidence would be fair and just in the circumstances. The court needed to balance the principles of fairness and the rules of evidence to decide on the admissibility of the contested evidence.

The court held that the evidence of the witness about what was said between the first defendant and the plaintiff in the presence of the third defendant was admissible against the third defendant. The court reasoned that the third defendant had the opportunity to hear the statements and thus had the chance to respond. The court also found that admitting the evidence would not prejudice the third defendant as it was relevant to the issues in the case and that the fairness of the proceedings was not compromised. Therefore, the court concluded that the evidence could be considered by the court in determining the case. The court's decision was based on a careful consideration of the principles of fairness and the rules of evidence, ensuring that the rights of all parties were protected.

The final orders of the court allowed the admission of the contested evidence. This decision meant that the third defendant's case would proceed with the consideration of the statements made in their presence, contributing to a fair and just resolution of the dispute between the parties.

Orders