Re Hedditch, Noel Wynyard Ex Parte Dunn, R G

[1984] FCA 496

No. W208X of 1982

R E : NOEL FTYNYARD HZDDITC2J , - - -

@ PARTE:

COfi.!!Y:	Lockhart 5 .
DATE :	8 March 1984

deed. The matter has been listed today at the request of both

partizs f o r the purpos? of obtaining, in effect, preliminary

ru l ings on evidence, because the result o f those rulinqs will

fashiort th2 future course of the application to have the deed set

aside.

The matter is obviossly complex, the asset.s in tbe

estate sre many, and serious questims of value map arise. The course that the partias have adapted, in requesting preliminary

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perhaps an unc wal one, but it is, I think, sensible.

The rulings given today are preliminary only. It must follow

that the court cannot be treated as bound by them in future when

the evidence is sought to be adduced at the hearing of the

application. It i s merely a statement of the Court's present

view on the material presented to it today.

During the hearing before me today, I was directed to -

certain parts of the affidavit of Gregory Robert Lloyd, sworn on

1 2 October 19B3, and the many annexures to it, and was asked by

both parties to give a preliminary indication or ruling as to the admissabil'ity- or otherwise of the evidence contained in those

parts. I was asked to give the rulings as if today's hearing

were the final hearing of the application- The rulings are as

follows and, of course, it is implicit in what I sap that

objections have been taken to	all the paragraphs and annexures to
which I refer.

l! Objection is taken to sub-para. 3(d) of the

affidavit insofar a5 it purports to relate to

conversations between Mr. tlogd and Mr. Wughes, on the

one hand, and Mr. Lloyd and Mr. 3ones on the other, but

not as to conversations between Mr. Lloyd and Mr.

Packer. The objection is taken as to the truth of the

contents of the conversations there recorded. I uphold

those ob ject.ions.

3.

2 ) Objection is taken to annexure P to the affidavit referred to in that part of the affidavit. If it is

sought to tender the annexure as truth of the contents

of the conversation therein referred to,	I uphold that
ob jec.tion.

3 ) Objection is taken to the truth of the contents in _,. .

sub-para. 3(h) of the affidavit. If the evidence is *

tendered as the truth of the contents of the,

conversation there recorded between Mr. Lloyd and Mr.

EJilloughby, again I uphold that objection.

4) Objection is taken to sub-pra. 3(i) of the

affidavit. If it is tendered as truth of the contents

of the conversation between M r . Lloyd and Mr. blade, I

uphold that objection also.

5 ) Objection is also taken to annexure X referred to

in that part of the affidavit, and again on the same

basis. On tire same basis I uphold the objection.

6 ) Objection is taken to sub-para. 3 ( m ) of the

affidavit on the basis that they should not be adinitted

as proving the truth of the conversation therein

mentioned between Mr. Llopd and Mr. Robins. Again	I
uphold that objection.

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7) Objection is t aken t o annexure A I of the affidavit

of Mr. Lloyd. That annexure consists of .minutes and

copies of minutes of a meeting of creditors of the

debtor on 6 October 1982, beinq, as I understand it, the

critical meeting for present purposes. The objection

does not extend to s o much of the minutes as purport to record the conversation between Mr. Lang and M r . Millar, . .-

but otherwise the whole of the annexure is objected to -

on the grounds of relevance. It is of course most difficult to rule on any question of relevance at this stage when I know very little about the case. 3ut as at

present advised, I would be disposed to overrule that

objection and admit the annexure into evidence. Whether

t

I would. contixue that attitude on the final hearing would be a mattgr to be assessed in the liqht of events

as they then lunf old.

8) Objection is taken to annexur'es AJ and M, again on

the basis t h a t they should not be admitted as truth of

the contents of the documents.	I would uphold that
objection.

9) Objection is taken to para. 4 of the affidavit. Counsel for the applicant does not read so much of that paragraph as states: "which either were or may have been preferences"; otherwise he presses the paragraph.

The ground of this objection, to the paragraph as a

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whole. is that, since it and the documents referred to relate to the question whether any preferences may have

been given by the debtor before he concluded the deed of

assignment under challenge, those are irrelevant

consi.derations to an application of .this nature, that

is, irrelevant to an application grounded upon paras.

2 2 2 ( 4 ) ( a ) and (b) of the Bankruptcy Act. It is also

. .-

submitted that the pragraph is irrelevant to the .

question of discretion. I do not think it appropriate to rule an those matters at this staqe except to say

that I have a prima facie view that such matters,

assuming they are properly proved, would be admissible

on the question of discretion at least, but I have no

r final view on that natter.

10) Objection is taken to specific parts of para. 4 on

specific grounds. Sub-para 4(a) is objected to,

especially, as I understa~d it, on the basis that it

goes to irrelevant matters. This is specifically the same objection as to the one to which I have just

referred as bearing on the pragraph as a whole. As at

present advised,	I would be disposed	to	overrule the
objection.

Then objection is taken on similar grounds to .

sub-paras. 4(b), ( c ) p (d) and (e), and I would take the

same course. However, other objections are taken to

sub-para. 4[b) and 4(c), namely that the documents

referred to in sub-para. 4 ( b ) should not be admit,ted as

truth of the matters therein stated. I would be

disposed to admit those documents, but not as evidence

of the truth of the contents.

As to sub-para 4(c), there is the additional

objection that two letters of 6 December 1982 and 8 ..-

December 1982 should no t be admitted as proving the: truth of the contents of the le t ters- As at present advised, I would be disposed to admit the documents, but not as evidence of the truth of their contents.

11) Then objection is t aken to sub-para. 5 ( a ) or' the

b

affidavit. In short, this s~bparagraph purports to skate opinions and conclusions of a Mr. Davies, who is

apparently a registered valuer, as ta his assessment of

the value of certain properties and related matters,

Objection, in my opinion, is well taken, and if the applicant seeks to rely upon evidence of valuations of Mr. Davies, then he must t.alte the usual course of putting his oath to his valuations. I would uphold that

objec-tion.

12) Objection is taken to sub-para. 5 ( c ) on a similar ground, that it really is hearsay evidence. It purports to draw'conclusions from statements received from people

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13) Objection is taken to certain portions of para. 6

of the affidavit. Counsel for the applicant does not

read the subject sentence of the first paragraph-

commencing with the words "I am concerned . . . '' and. . .-.

concluding with the words l ' . . . for himself". Object,ion

is taken to the admissibility of annexures BP, BT and BY

referred to in sub-para. 6(a ) . Counsel for the

applicant does not press annexures ET and BF, and objection to annexure BY is now withdrawn. Objection is taken by counsel f o r the debtor to tine f i r s t sentence of sub-para. 6 ( e ) . That sentence in my opinion is not

admissible; it is essentially a conclusion of mixed f a c t

and law dravm bp the witness which in my view he is not

entitled to do. Objection was taken to the last

sentence of that subparagraph but it is no longer

pressed bp counsel for the applicant.

14) Objection is taken to annexure CH also referred to

in that subparagraph insofar as it is tendered as beina

probative of the truth of the contents of the annexure,

and annexure CG likewise is objected to on the same

grounds. I would be disposed to admit those but not as

evidence of the truth of their contents.

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15) Annexure CK, which is referred to in para. 7 of the

affidavit, is objected to on the grounds that it should not be admitted as truth of its contents. That annexure is,, it seems to me, in a special category; it purports

to confirm a telephone conversation between the debtor

and some other unspecified person. . I t h i n k the letter

is admissible, assuming it does go to the relevant issue

which can be determined in due course, but what weight I ._

would give it, insofar as it is sought to prove the-

truth Of the telephone conversation, even though it is addressed to the debtor, is an entirely different	I
Westion. Indeed, as at present advised, if it would be Only evidence of that conversation I would pay no regard
to it,