Rhodes v De Castro [No 2]

Case [2023] WASC 93

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RHODES -v- DE CASTRO [No 2] [2023] WASC 93

CORAM:   SOLOMON J

HEARD:   20 & 21 MARCH 2023, FURTHER MATERIALS RECEIVED 22 MARCH 2023

DELIVERED          :   24 MARCH 2023

PUBLISHED           :   24 MARCH 2023

FILE NO/S:   CIV 2171 of 2021

BETWEEN:   DAMIEN TERENCE MICHAEL RHODES

Plaintiff

AND

GUI JORGE DA COSTA NAPOLEAO DE CASTRO

Defendant


Catchwords:

Practice and procedure - Evidence Act ss 79B and 79C - Objections to documentary evidence - Expert evidence - Business records

Legislation:

Evidence Act 1906 (WA) ss 79B, 79C
Evidence Act 1929 (SA)
Inheritance Family Provision Act 1972 (SA)

Result:

Information Memoranda admissible under s 79C(2a)
Documents recording information about hotel sales returned on subpoena by real estate agent company or hotel admissible under s79C(2a)

Category:    A

Representation:

Counsel:

Plaintiff : Dr R A Collins
Defendant : Mr C S Williams

Solicitors:

Plaintiff : Piper Alderman
Defendant : Solomon Brothers

Cases referred to in decision:

Agricultural Land Management Ltd v Jackson [2013] WASC 464

Collopy v Commonwealth Bank of Australia [2019] WASCA 97

Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239

Lang v Davey [2020] SASC 160

McKay v Commissioner of Main Roads [No 2] [2010] WASC 153

Rhodes v de Castro [2022] WASC 214

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 12] [2022] WASC 474

Southern Equities v Bond [2002] SASC 70; (2002) 78 SASR 554

SOLOMON J:

  1. The background to this matter is set out in the decision of her Honour Hill J in Rhodes v de Castro [2022] WASC 214. In that decision her Honour dismissed the plaintiff's application for summary judgment. That background may be summarised as follows.

  2. On 4 August 2021, the parties entered into a 'Deed of Settlement and Release'.  Under that agreement, the defendant was required to transfer to the plaintiff 150,000 units in the Rehawk Property Group Unit Trust (Trust), or units to the value of $500,000, whichever was higher, by 11 August 2021.  On 5 August 2021, the defendant proffered the transfer of 150,000 units but the plaintiff claims they were worth considerably less than $500,000.  The defendant denies that the 150,000 units were worth less than $500,000.  The plaintiff claims damages for the defendant's alleged failure to abide by the obligation to transfer units in the value of $500,000.  The central issue in these proceedings is therefore the value of units in the Trust as at 5 or 11 August 2021.

  3. The principal asset of the Trust is a hotel known as Ibis Styles East Perth (Hotel).  The value of the Hotel and in turn, the units in the Trust are therefore the principal matters for determination in these proceedings.

  4. In support of its position, the plaintiff has produced two valuation reports on which he intends to rely.  One is a valuation of the Hotel and the other is a valuation of the Trust.  The valuation of the Trust rests largely on…

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AGLC
Rhodes v De Castro [No 2] [2023] WASC 93
Case
[2023] WASC 93
Decision Date

CaseChat Overview and Summary

The case of Rhodes v De Castro [No 2] involved a dispute between the parties over the admissibility of documentary evidence under the provisions of Section 79C of the Evidence Act. The matter was heard in the Supreme Court of Western Australia. The primary issue for the court was to determine whether certain documentary evidence was admissible under Section 79C, particularly in light of the statutory requirements and exceptions outlined in the subsections of the Act. The court had to consider whether the evidence in question met the criteria for admissibility, including the need for the document to be a genuine business record and whether any exceptions applied.

The court examined the statutory provisions in detail, noting that they should be construed liberally as they are remedial in nature. The court referenced previous cases where similar issues had been considered, such as McKay v Commissioner of Main Roads [No 2] and Agricultural Land Management Ltd v Jackson, to derive principles on the interpretation and application of Section 79C. The central inquiry was whether the documentary evidence, which was intended to establish certain facts or opinions, met the criteria for admissibility under the Act. This included determining whether the statements in the document were made by a qualified person, directly or indirectly reproduced information from such a person, or derived from a business record.

In reaching its decision, the court held that the documentary evidence in question was admissible under Section 79C of the Evidence Act. The court found that the document met the criteria for admissibility as it contained statements that were either made by qualified persons or derived from genuine business records. The court also considered the exceptions outlined in the subsections of Section 79C and concluded that none of the exceptions applied to exclude the evidence. The court’s reasoning was based on a liberal interpretation of the statutory provisions, consistent with previous judicial interpretations.

The final orders of the court were that the documentary evidence in question was admissible and could be used to establish the facts or opinions contained therein. The court provided clear guidance on the application of Section 79C and the principles derived from previous cases, ensuring that the parties understood the basis for the admissibility of the evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 79C(1), (2) and (2a) provide as follows:79C.Documentary evidence, admissibility of(1)Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement -(a)was made by a qualified person; or(b)directly or indirectly reproduces or is derived from one or other or both of the following -(i)information in one or more statements, each made by a qualified person;(ii)information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.(2)Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless -(a)he is dead;(b)he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness;(c)he is out of the State and it is not reasonably practicable to secure his attendance;(d)all reasonable efforts to identify or find him have been made without success;(e)no party to the proceedings who would have the right to cross examine him requires him to be called as a witness;(f)having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement;(g)having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or(h)he refuses to give evidence.(2a)Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -(a)the statement is, or directly or indirectly reproduces, or is derived from, a business record; and(b)the court is satisfied that the business record is a genuine business record. It must first be observed that the generality of the sections should not be read down. They are remedial provisions which should be construed liberally and not pedantically.[1][1] Collopy v Commonwealth Bank of Australia [2019] WASCA 97 [69]; Donohoe v The Director of Public Prosecutions (WA) [2011] WASCA 239 [126]. The statutory provisions were considered by Beech J in McKay v Commissioner of Main Roads [No 2] and by Edelman J in Agricultural Land Management Ltd v Jackson.[2] The relevant principles that arise from their Honours' consideration may be summarised by the principles set out below.[2] McKay v Commissioner of Main Roads [No 2] [2010] WASC 153; Agricultural Land Management Ltd v Jackson [2013] WASC 464; see also Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 12] [2022] WASC 474.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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