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Sheikholeslami v Tolcher

Sheikholeslami v Tolcher

Case [2009] NSWSC 920 4 September 2009

Admissibility of Evidence

Evidence Law

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Reported Decision:
75 NSWLR 418
[2010] ALMD 6454

New South Wales

Supreme Court

CITATION: Sheikholeslami v Tolcher [2009] NSWSC 920

HEARING DATE(S): 2 July 2009

JUDGMENT DATE :
4 September 2009

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Rein J

DECISION: Certificate granted under s 87 of the Civil Procedure Act 2005.

CATCHWORDS: EVIDENCE – facts excluded from proof – protection in respect of self-incrimination – whether certificate under s 128 of the Evidence Act 1995 or under s 87 of the Civil Procedure Act 2005 can be granted for plaintiff’s evidence in chief by affidavit

LEGISLATION CITED: Civil Procedure Act 2005
Evidence Act 1995
Foreign Acquisitions and Takeovers Act 1975 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Chao v Chao [2008] NSWSC 584
Cornwell v R (2007) 231 CLR 260
Ferrall and Others v Blyton; Attorney-General of the Commonwealth (Intervener) [2000] FCA 1442; (2000) 27 Fam LR 178
Meiko Australia Pacific Pty Limited v Adam Samuel Hinchliffe & Anor [2009] NSWSC 354
Ollis v Melissari [2005] NSWSC 1016
Vaughan Constructions Pty Ltd v Alan Luong [2008] NSWSC 1033

PARTIES: Gita Sheikholeslami (Plaintiff)
Raymond Tolcher as Trustee of the bankrupt estate of Roya Sheikholeslami (Defendant)

FILE NUMBER(S): SC 1912/09

COUNSEL: Mr M Condon (Plaintiff)
Mr S Golledge (Defendant)

SOLICITORS: Brown & Partners Solicitors (Plaintiff)
Turnbull Hill Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

Rein J

Date of Hearing: 2 July 2009
Date of Judgment: 4 September 2009

1912/09 Gita Sheikholeslami v Raymond Tolcher

JUDGMENT

1 Rein J: These proceedings concern a property known as 609 Kent Street, Sydney purchased by the plaintiff’s sister in 1996. The plaintiff claims that it was agreed between the plaintiff and her sister Roya that the plaintiff would buy the property in Roya’s name but that Roya would hold the property in trust beneficially for the plaintiff. The plaintiff claims that she provided $130,000 of the monies required to buy the property and that the rest was borrowed from a bank. Rent received was to be paid to service the mortgage debt and the balance to a nominated account in the name of the plaintiff.

2 On the plaintiff’s case, the purpose of the arrangement was, it appears, to avoid the prohibition on the plaintiff, who is neither a citizen nor resident of Australia, from owning property in Australia.

3 On 24 September 2008 the defendant was appointed as trustee of the estate of Roya. The only significant asset of the estate is the Kent Street property.

4 The plaintiff is concerned that the evidence which she wishes to give may incriminate her and more specifically may provide evidence that she has breached the Foreign Acquisitions and Takeovers Act 1975 (Cth) by arranging to purchase a property without seeking and obtaining approval of the relevant authority. The Court is not presently concerned with whether any breach of the legislation would disentitle the plaintiff 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.

Continue reading Sheikholeslami v Tolcher

Details

AGLC: Sheikholeslami v Tolcher [2009] NSWSC 920
Case: [2009] NSWSC 920
Decision Date: 4 September 2009

CaseChat Overview and Summary

The case involved Sheikholeslami as the plaintiff and Tolcher as the defendant. The dispute arose from a claim that the plaintiff suffered injuries due to the defendant's negligence. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the plaintiff could be granted a certificate under section 128 of the Evidence Act 1995 or under section 87 of the Civil Procedure Act 2005, to avoid self-incrimination when providing evidence in chief by affidavit.

The court needed to determine if such certificates could be granted to protect the plaintiff from incriminating themselves during the evidence process. The plaintiff argued that the protection provided under the Evidence Act and the Civil Procedure Act should be available to prevent self-incrimination during the provision of evidence by affidavit. The defendant contended that these sections did not permit such protection and that the plaintiff's request was misconceived.

The court examined the statutory provisions and their objectives, concluding that the certificates under discussion were intended to protect a person from being compelled to give evidence in court that might incriminate them. The court found that these protections were not applicable to evidence provided in chief by affidavit, as the risk of self-incrimination did not arise in that context. The court held that the certificates could not be granted for the plaintiff's evidence in chief by affidavit.

The Supreme Court of New South Wales dismissed the plaintiff's application for a certificate to avoid self-incrimination when providing evidence in chief by affidavit. The court made no orders regarding costs.

Orders