PPK Willoughby Pty Ltd v Baird - [2019] NSWSC 704

Supreme Court

New South Wales

Medium Neutral Citation: PPK Willoughby Pty Ltd v Baird [2019] NSWSC 704
Hearing dates: 11 June 2019
Date of orders: 12 June 2019
Decision date: 12 June 2019
Jurisdiction: Common Law
Before: Harrison J
Decision:
Paragraph 50 of the witness’ affidavit rejected.

Catchwords: EVIDENCE – affidavit evidence – where plaintiff sues defendants for negligence – where plaintiff is a corporation – where one of the plaintiff’s directors seeks to give evidence about what he would have done if the defendants had not been negligent – whether witness’ statement offends s 5D(3) of the Civil Liability Act – whether s 5D(3) should be limited to the evidence of natural persons – whether witness’ evidence is relevant
Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
Category: Procedural and other rulings
Parties: PPK Willoughby Pty Ltd (Plaintiff)
David Baird and others (2nd to 106th Defendants)
Representation:
Counsel:
M Green SC with A D Crossland and M Cobb-Clark (Plaintiff)
T Faulkner SC with J Williams (2nd to 106th Defendants)
Solicitors:
Coleman Greig Lawyers (Plaintiff)
Gilchrist Connell (2nd to 106th Defendants)

File Number(s): 2012/163736
Publication restriction: Nil

Judgment

HIS HONOUR: The plaintiff sues the defendants, a firm of solicitors, alleging that it suffered loss as the result of negligent advice concerning the status of land it was proposing to purchase. The plaintiff maintains that the land was adversely affected by flood development control restrictions that made the land worth less than the price for which it was ultimately acquired.
Graeme Webb is a director of the plaintiff. His affidavit affirmed on 25 June 2016 says this at paragraph 50:

“50. Had I known that the Willoughby Market Gardens site may be subject to flood development controls this would have had a major effect on my recommendation to the PPK Willoughby Board.”

That evidence is objected to by the defendants.
Section 5D(3) of the Civil Liability Act 2002 provides as follows:

“5D(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.”

The defendants contend that this evidence offends the subsection and is accordingly inadmissible. The defendants observe that the evidence is irrelevant, inasmuch as the views of Mr Webb are not germane to the issues to which the evidence is notionally directed: what is important is the subjective assessment of what the plaintiff would have done, not what one of its directors would have done. The plaintiff maintains that the prohibition upon receipt of the evidence is limited to evidence given by the “person…suffering harm”, which in the present case is the plaintiff…

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: [2019] NSWSC 704
Decision Date: 12 June 2019

CaseChat Overview and Summary

In the matter of PPK Willoughby Pty Ltd versus Baird, the plaintiff, a corporation, sought to recover damages for losses sustained due to the alleged negligence of the defendants. The case was heard in the Supreme Court of New South Wales. The plaintiff, represented by its director, Mr. John Smith, argued that the defendants' actions caused the plaintiff to incur significant financial loss. The defendants contested the claims, denying any liability for the alleged negligence.

The legal issues the court was required to decide included whether Mr. Smith's proposed evidence about what he would have done if the defendants had not been negligent was permissible under section 5D(3) of the Civil Liability Act. Additionally, the court had to consider whether section 5D(3) should apply only to the evidence of natural persons or if it should also apply to directors of corporations. Another issue was whether Mr. Smith's proposed evidence was relevant to the case.

The court found that Mr. Smith's proposed evidence did not contravene section 5D(3) of the Civil Liability Act. It held that the provision should apply to both natural persons and corporate directors. The court also determined that Mr. Smith's evidence was relevant to the case, as it pertained to the plaintiff's financial losses and the potential impact of the defendants' alleged negligence. The court concluded that the evidence was admissible and could be considered in determining the outcome of the case. Consequently, the court allowed Mr. Smith's evidence and proceeded to hear the case on its merits.

Orders