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Rickard Constructions v Rickard Hails Moretti

Rickard Constructions v Rickard Hails Moretti

Case [2004] NSWSC 984 15 October 2004

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CITATION: Rickard Constructions v Rickard Hails Moretti & Ors [2004] NSWSC 984 revised - 8/11/2004

HEARING DATE(S): 5, 6, 7, 8, 11, 12, 13, 14, 15 October 2004 and dates following

JUDGMENT DATE:
15 October 2004

JUDGMENT OF: McDougall J at 1

DECISION: See paras [39] and [40] of judgment

CATCHWORDS: EVIDENCE - Evidence Act 1995 (NSW) - hearsay - business records exception - whether documents admissible as business records under s 69 - where author of document had personal knowledge of some, but not all, of the matters set out in document - s 69(2) - whether representations made by person who had knowwledge of facts asserted in representation, or on basis of information directly or indirectly supplied by such a person - construction of "or might reasonably be supposed to have had personal knowledge" in s 69(2) - s 69(3) - whether representations prepared for purpose of, or in contemplation of, or connection with, Australian proceeding - whether sub s (3) an exception to the operation of subs (2) or further condition of admissibility - whether s 69(3) applicable

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Vitali v Stachnik [2001] NSWSC 303
Lewis v Nortex Pty Ltd [2002] NSWSC 1083
Kang v Kwan [2002] NSWSC 187
Timms v Commonwealth Bank of Australia [2003] NSWSC 576
S & Y Investments [No 2] Pty Ltd v Commercial Union Assurance Company of Australia Limited (1986) 82 FLR 130
Sellers Fabrics Pty Ltd & Anor v Hapag-Lloyd AG [1998] NSWSC 644

PARTIES :
Rickard Constructions Pty Limited (Plaintiff)
Rickard Hails Moretti Pty Limited (First Defendant)
Jeffery & Katauskas Pty Limited (Second Defendant)
Allianz Australia Insurance Limited (Third Defendant)

FILE NUMBER(S): SC 55027/00

COUNSEL: F C Corsaro SC/T G R Parker (Plaintiff)
S R Donaldson SC/ P S Braham (First Defendant)
M Dempsey SC/J Steele (Second Defendant)
A S Martin SC/A J McInerney (Third Defendant)

SOLICITORS: Maurice Blackburn Cashman (Plaintiff)
Moray & Agnew (First Defendant)
Colin Biggers & Paisley (Second Defendant)
Moroney Betts (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

McDOUGALL J

15 October 2004 Ex tempore (revised 19 October 2004)

HAILS MORETTI PTY LTD & ORS

JUDGMENT (On admissibility of evidence)

1 HIS HONOUR: The plaintiff sues to enforce, among other things, rights said to have been assigned to it by Mayne Nickless Limited (“Mayne”) and MPG Logistics Pty Ltd (“MPG”) relating to a container park at 55 Friendship Road, Port Botany (“the park”).

2 The plaintiff constructed a pavement at the park under a contract originally made between it and Port Botany Container Park Pty Ltd and subsequently assigned to Mayne.

3 As part of the proof of its assigned claims, the plaintiff tenders the following documents: an e-mail from Mr Thanh Truong to Mr John Klepec dated 19 October 2000, and having the subject "Re: Damage Claims"; a proof of debt made by Mayne against the plaintiff and verified by a Mr Hinchen on 5 December 2000; and a proof of…

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.

Continue reading Rickard Constructions v Rickard Hails Moretti

Details

AGLC: Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984
Case: [2004] NSWSC 984
Decision Date: 15 October 2004

CaseChat Overview and Summary

In the matter of Rickard Constructions v Rickard Hails Moretti, the dispute involved the admissibility of certain documents under the Evidence Act 1995 (NSW) in the Supreme Court of New South Wales. The case centred on whether these documents qualified as business records and could be admitted under section 69 of the Act. The central issue before the court was whether the documents in question were admissible as business records, given that the author had personal knowledge of only some of the matters stated in the document, and the court had to determine if the representations made by the author met the criteria outlined in sections 69(2) and 69(3) of the Act.

The court examined whether the representations made by the author of the documents were based on the author's personal knowledge or on information supplied by someone else. The construction of the phrase "or might reasonably be supposed to have had personal knowledge" in section 69(2) was key to this determination. Additionally, the court considered whether the documents were prepared for the purpose of, or in contemplation of, or in connection with an Australian proceeding, as required by section 69(3). The court had to decide whether section 69(3) acted as an exception to section 69(2) or as a further condition for admissibility.

After a thorough analysis of the facts and the provisions of the Evidence Act 1995 (NSW), the court ruled that the documents were not admissible as business records under section 69. The court found that the author's personal knowledge did not cover all the matters stated in the document, and the representations were not made on the basis of the author's personal knowledge or information supplied by someone else. Consequently, the court held that the documents did not meet the criteria for admissibility under section 69(2). The court also found that section 69(3) did not apply to the documents in this case.

Orders