Singh v Newridge Property Group Pty Ltd

[2010] NSWSC 411

CITATION:	Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411
HEARING DATE(S):	3 May 2010
JUDGMENT DATE :	6 May 2010
JURISDICTION:	Equity
JUDGMENT OF:	Biscoe AJ
DECISION:	(1) Evidence inadmissible
CATCHWORDS:	Evidence - statutory exceptions to hearsay rule in civil proceedings - whether person who made representation not available to give evidence about asserted fact - whether it would cause undue expense or undue delay or would not be reasonably practicable to call person who made the representation to give evidence - general statutory discretion to exclude evidence: whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Puchalski v R [2007] NSWCCA 220 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769
PARTIES:	Gurdeep Singh (first plaintiff) Amarinder Singh (second plaintiff) Newridge Property Group Pty Ltd (first defendant) K S Gill property Group Pty Ltd (second defendant) Kulwant Singh (third defendant) Harjit Singh (fourth defendant)
FILE NUMBER(S):	SC 2007/00254282
COUNSEL:	Mr C J Whitelaw (plaintiffs) Mr R Dubler SC with Mr B Zipser (defendants)
SOLICITORS:	Macquarie Partnership (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BISCOE AJ

6 May 2010

2007/00254282 GURDEEP SINGH & ANOR v NEWRIDGE PROPERTY GROUP PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: This is a ruling on an objection to evidence.

BACKGROUND

2 The plaintiffs, Gurdeep Singh and his former wife Amirinder Singh, sue to recover an alleged loan of $75,000 (plus interest) paid on 9 February 2004 to the first defendant, Newridge Property Group Pty Ltd (Newridge), allegedly guaranteed by the third and fourth defendants, Kulwant Singh and Harjit Singh. Alternative causes of action for recovery of this sum are pleaded. The second defendant is K S Gill Property Group Pty Ltd trading as United Real Estate (United).

3 The individual parties and most, if not all, witnesses are members of the Punjabi community in Sydney.

4 At all material times the defendants Kulwant and Harjit were directors and shareholders of Newridge, Kulwant was a director and shareholder of United, and Harjit was an employee of United. Until November 2003 the plaintiffs were directors of Newridge and one of the shareholders in Newridge was Fuguet & Singh Development and Construction Pty Ltd (Fuguet & Singh), a company owned by Irwin Fuguet and the plaintiff Gurdeep.

5 Newridge was the developer of a townhouses development at Hambledon Road, Quakers Hill (Hambledon Road project). Newridge retained Fuguet & Singh as the builder and project manager of the Hambledon Road project.

6 It appears that by November 2003 there were financial difficulties with the Hambledon Road project. The parties fell out.

7 The plaintiffs’ case is based on a series of conversations between them and the individual defendants in November and December 2003 which they say led them to sell an investment property in Cairns through the agency of United and pay the net proceeds of $75,000 to the business account of Newridge. It is common ground that the payment was made. The defendants say that it was a payment of money owing by Fuguet & Singh to Newridge.

8 The agreement is not evidenced in writing and the matter essentially comes down to the competing versions of conversations.

THE OBJECTION TO EVIDENCE

9 The plaintiffs object to the defendants’ tender of hearsay evidence in paragraph 53 of the affidavit of the defendant Kulwant sworn on 3 December 2007 in which he recounts a conversation in late 2003 between Irwin Fuguet, the defendant Harjit and himself in which Irwin Fuguet indicated that Fuguet & Singh were having financial difficulties; that Gurdeep was not paying sub-contractors or Irwin Fuguet and was using money (construction finance payments from a bank to Fuguet & Singh) for another project and other things; and that Gurdeep wanted Irwin Fuguet to sell his family home to raise money for Fuguet & Singh.

10 The plaintiffs say that this evidence is not peripheral but to counter the plaintiffs’ case on certain central points.

11 The defendants submit that the evidence is admissible under exceptions to the hearsay rule in s 63 or s 64 of the Evidence Act 1995 and that they have given the necessary notice required by s 67. The plaintiffs dispute this and alternatively submit that the evidence should be excluded in the discretion of the Court under s 135(a). These sections relevantly provide:

“ 63 Exception: civil proceedings if maker not available

(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.


64 Exception: civil proceedings if maker available

(1) This section applies in a civil proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:

(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation,
if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.

Note. Section 67 imposes notice requirements relating to this subsection. Section 68 is about objections to notices that relate to this subsection.

67 Notice to be given

(1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.
(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3) The notice must state:

(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and
(b) if section 64 (2) is such a provision—the grounds, specified in that provision, on which the party intends to rely.
(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party’s failure to give notice.
(5) The direction:

(a) is subject to such conditions (if any) as the court thinks fit, and
(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.


135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time.”

12 No application is made under s 67(4).

13 The meaning of the unavailability of a person to which s 63(1) refers is relevantly governed by cl 4(1)(e) in Part 2 of the Dictionary to the Evidence Act:

“4(1) For the purposes of this Act a person is taken not to be available to give evidence about a fact if:
…
(e) all reasonable steps have been taken, by the parties seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success, or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.”

14 The concept of unavailability of a person in cl 4 and s 63 was considered in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769 by Barrett J:

“11 I should, I think, proceed on the basis, first, that paragraph (e) (leaving aside as irrelevant the part concerning finding a person) is concerned with the matter of securing the relevant person’s attendance and, second, that paragraph (f) is concerned with the separate matter of compelling a person whose attendance has been secured. This approach to the relationship between paragraphs (e) and (f) was taken by Hamilton J in Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 at [17] and expressly approved by Ryan J in Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435 at [13]. To the extent that there is a contrary indication in Caterpillar Inc v John Deere Ltd (No 2) [2000] FCA 1903; (2000) 181 ALR 108, I am of the opinion that it should not be accepted. The words of the legislation clearly warrant the conclusions stated by Hamilton J and Ryan J.
…
13 There is immediately a question as to the meaning of `attendance’. In a context such as the present where clause 4(1)(e) is applied in answering the question posed by s 63(1), it is, to my mind, clear that the relevant form of “attendance” is that which puts the person into position to give evidence to the court. The words “secure his or her attendance” in clause 4(1)(e) must, in the context, refer to such form of attendance as will allow the person in question to do that with which s 63(1) is concerned, that is, “to give evidence”. In the ordinary course, this will involve the person’s physical presence in the courtroom in which the relevant proceeding is being conducted (or, as it is put by s 36(1) of the Evidence Act, presence “at the hearing of” the proceeding).
…
24 In a case such as the present arising under s 63 of the Evidence Act, the `attendance’ referred to in clause 4(1)(e) of the dictionary (being, of its very nature, attendance `to give evidence’) is attendance by way of physical presence in the courtroom or other place in which the relevant proceeding is being conducted, with that courtroom or other place understood as encompassing any remote location deemed by the Evidence (Audio and Audio Visual Links) Act to be included in it. A person for the time being in a foreign country, although not physically present in the place where the court is sitting, may be relevantly in `attendance’ by means of a link of the kind with which the Evidence (Audio and Audio Visual Links) Act is concerned. A person examined pursuant to the Evidence on Commission Act , on the other hand, is never in `attendance’ to give evidence in a New South Wales court. The product of the person’s examination may (or, indeed, may not) be tendered by a party as evidence in the relevant proceeding in the New South Wales court. But it is the party’s tender of the product, not the examination that brings the product into existence, that causes evidence to be before the court.
25 It follows that when the extent of the `steps’ taken by a party to `secure’ a person’s `attendance’ is under consideration for the purposes of clause 4(1)(e), attention will be directed only to steps which, if taken, will or might cause the person to be physically present in the courtroom or other place in which the court is sitting or to attend at a location from which an audio or audio visual link can be established. Steps that will or might cause the person to be in a place for the purpose of being examined pursuant to the Evidence on Commission Act are not relevant to the inquiry; nor are steps that will or might cause a record of such an examination to be available for tender by a party to the proceedings. The inquiry is concerned with steps to secure a person’s physical presence, not steps to secure statements from the person with a view to tendering them. “

15 The defendants contend that Irwin Fuguet is “not available” to give the contested evidence within the meaning of s 63(1), or alternatively that it would cause “undue expense or undue delay, or would not be reasonably practicable” to call him within the meaning of s 64(2).

16 The defendants rely on the following evidence in support of those contentions:

(a) Irwin Fuguet’s wife has sworn in an affidavit that her husband left Australia and returned to Venezuela in January 2004 and that she is no longer in contact with him;
(b) the plaintiff Gurdeep has sworn in an affidavit that Irwin Fuguet disappeared after about 27 January 2004; he believes Irwin Fuguet returned to Venezuela; this was later confirmed when Irwin Fuguet rang him from Venezuela; and Irwin Fuguet’s wife also confirmed it to him and said they were getting divorced.

CONCLUSION

17 In my opinion, the evidence is inadmissible for the following reasons.

18 First, in my view, s 63(1) is inapplicable because the evidence is insufficient to establish that Irwin Fuguet is “not available” to give evidence. I do not consider that all reasonable steps have been taken by the defendants to find Irwin Fuguet or to secure his attendance.

19 Secondly, in my view, s 64(2) is inapplicable because I consider that the evidence is insufficient to establish that it would cause undue expense or delay or that it would not be reasonably practicable to call Irwin Fuguet.

20 Thirdly, in my view, ss 63 and 64 are inapplicable because the plaintiffs have not given “reasonable” notice as required by s 67(1). In Puchalski v R [2007] NSWCCA 220 at [103] the Court of Criminal Appeal said in relation to s 65 (the unavailability exception to the hearsay rule in criminal proceedings) that: “Notice given five minutes before the hearing of the application under s 65 would not normally be reasonable. What is reasonable will depend upon the circumstances”. In the present case the notice was not given to the plaintiffs until the last working day before the hearing commenced. More than two years earlier the plaintiffs had written to the defendants indicating that objection was taken to this conversation. The shortness of notice has made it not reasonably practicable in the time available for the plaintiffs to investigate and marshal evidence as to the availability of Irwin Fuguet or as to his credibility pursuant to s 108A of the Evidence Act. Section 108A permits a party against whom hearsay evidence has been admitted, without the maker of the previous representation being called, to tender evidence relevant to the credibility of the person who made the previous representation.

21 If I am in error, then I would refuse to admit the evidence under s 135(a). In my view, its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to the plaintiffs because in the time available since the short notice was given it is not reasonably practicable for the plaintiffs to investigate and marshal the evidence to which I have referred.