Vlahos v Vlahos Pty Ltd (No. 2)
[2016] VCC 1544
•19 October 2016
d
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-05034
| JAMES VLAHOS | Plaintiff |
| v | |
| VLAHOS PTY LTD | First Defendant |
and
| ANDREW VLAHOS | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2016 | |
DATE OF JUDGMENT: | 19 October 2016 | |
CASE MAY BE CITED AS: | Vlahos v Vlahos Pty Ltd (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1544 | |
REASONS FOR JUDGMENT
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Subject: PRACTICE AND PROCEDURE
Catchwords: PRACTICE AND PROCEDURE – application to re-open after reasons for decision, but before final orders – whether exceptional circumstances exist
Cases Cited:Callisher v Bischoffscheim (1870) LR 5 QB 449; Calverley v Green (1984) 155 CLR 242; Department of Economic Development, Jobs, Transport & Resources v MG Pastoral Company Pty Ltd [2016] VSC 456; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22; Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141; Metwally v University of Wollongong (1984) 158 CLR 447; Smith v New South Wales Bar Association (1992) 176 CLR 256; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, 698 (CA); Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1; and Wigan v Edwards (1973) 47 ALJR 586.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Gronow | Klonis Kirby & Co |
| For the Defendant | Mr M Bearman | DCA Lawyers |
HIS HONOUR:
Summary
1 On 1 September 2016, the defendants filed a summons, returnable the following day, in which they applied to re-open their case on the basis of fresh evidence. This was said to comprise documents discovered on 31 August 2016 by the second defendant’s wife, Mrs Lediza Vlahos.
Background
2 The trial in this matter ran during the first week of August 2016 and I delivered reasons for judgment on 31 August 2016.[1] I then listed the matter on 2 September 2016 to hear submissions and make the final orders regarding both substantive relief and costs.
[1]This judgment can be read in conjunction with the earlier judgment.
3 On 2 September 2016, I had a busy list and there was insufficient time available to hear the defendants’ application. Accordingly, the defendants made oral application to adjourn the hearing of their summons on the grounds that it would take them more time than was available to properly develop their argument. I reserved my decision on that oral application. Later the same day, the court emailed the parties advising that the court would hear the defendant’s application to re-open its case on 11 October 2016. I directed the parties to file and serve relevant affidavit material and submissions beforehand.
4 At the hearing of the defendants’ application, the defendants advised that they relied upon the affidavits of Andrew Vlahos (“Andrew”) sworn 1 September and 7 October 2016, Lediza Vlahos (“Mrs Vlahos”) sworn 1 September and 7 October 2016, and Ashley del Corral sworn 20 September 2016.
5 The plaintiff, James Vlahos (“James”), relied upon the affidavits of both himself and his solicitor, Harry Klonis, each sworn 3 October 2016.
6 Prior to the hearing of the application, the plaintiff had notified the defendants that he sought to cross-examine Andrew and Mrs Vlahos. Accordingly, when the application was heard, each of Andrew Vlahos and Lediza Vlahos gave oral evidence and was subject to cross-examination.
7 In his affidavit sworn 1 September 2016, Andrew Vlahos said that he had lived with his parents at 11 Fanny Street, Moonee Ponds since about 1993. After his mother died in 2010, the house was bequeathed to him. He said that many documents left by his deceased father were in boxes in the home and in its garage. When asked by his solicitor to locate relevant documents for the litigation in respect of the property at 50 Puckle Street (“the property”), he searched his father’s documents, located a number of relevant files and sent them to the solicitors. He subsequently, when asked to swear an affidavit of discovery, reviewed the files he provided to the solicitors and again searched through other materials retained by his father.
8 Andrew swore an affidavit of documents on 5 July 2016 and a supplementary affidavit on 27 July 2016.
9 Andrew said that, when searching for relevant documents, he found a manila folder with a label referring to the lease of the property at 50 Puckle Street. The file was located on a shelf in his office cupboard together with other files, bundles of loose documents and print-outs of old emails. He said that he opened the folder and looked quickly at the documents at the top. They concerned an old lease of the property. He considered this was irrelevant to the purchase of the property or the source of the purchase moneys used to purchase the property and returned the folder to the shelf.
10 Andrew said that on 31 August 2016 at approximately 10.30am, his wife called him while he was at work. She said to him that she had gone into the home office at their house to clean out the old files and, as she was going through the documents in the files, she found documents showing transfers of money from the ANZ Bank regarding the purchase of the property, together with old ANZ Bank account statements. Andrew asked her to forward to him a scanned copy of the documents.
11 Andrew says he then called his solicitor, Mr Ashley del Corral, to ask him what to do. Mr del Corral said that when he received a copy of the email, he would review it and discuss it further with him. Andrew says that when he received the email from his wife, he forwarded it to Mr del Corral.
12 Thereafter, Andrew said that he had further conversations with Mr del Corral in which the solicitor told him to instruct his wife to keep the whole file in which she had found the documents in the same state as she had found it and to forward the documents to him. Andrew relayed this information to his wife and, late that evening, hand-delivered the file to Mr del Corral at his home.
13 In her first affidavit, Mrs Vlahos said that she decided on 31 August 2016, while her husband was at work, that it would be a good idea to clean the old files and documents relating to the recent litigation out of his office. She thought that moving his father’s documents out of the house might reduce Andrew’s stress levels.
14 She said that she found a file titled “Vlahos Pty Ltd from Chelsea Girl Pty Ltd – Lease: 50 Puckle Street, Moonee Ponds, Vic 3039”. At the back of the file was a stapled lease document and behind this was a bundle of bank statements and documents from the ANZ Bank. One of these documents was an ANZ document stapled to a bank statement which referred to the “Purchase of property at 50 Puckle Street”. When she saw this document, Mrs Vlahos thought it might be relevant to the proceeding and she contacted her husband who requested that she email to him a copy of the document she found. Accordingly, Mrs Vlahos scanned and emailed to him those documents which she thought were relevant. She said that shortly after doing this, her husband called her and told her to keep the documents in the file and to continue looking through them to see if there was anything else that was relevant.
15 In the course of his oral evidence at the application, when cross-examined by Mr Gronow, counsel for the plaintiff, Andrew gave substantially the same evidence as appeared in his affidavits.
16 An important aspect of the defendants’ application related to the alleged inconsistency between the freshly discovered evidence relating to the ANZ Bank documents and the account given by the plaintiff at trial regarding his contribution of moneys towards the purchase price. In supporting submissions dated 20 September 2016, the defendants referred to the plaintiff’s evidence at trial that an amount of $43,120, which originally came from his firm’s trust account, was put towards the purchase price of the property and a further amount of $58,950.53 was also contributed to the purchase price. The plaintiff said that the latter amount had been withdrawn from trust and paid into his firm’s office account. The plaintiff said that, thereafter, a bank cheque was made payable to the Westpac Bank as the plaintiff’s contribution towards the purchase price of the property. Counsel for the defendants set out in his submissions an exchange between myself and the plaintiff in which the plaintiff said:
“Then a bank cheque was drawn payable to the Westpac Bank as per the vendor’s instructions for settlement and that amount was added to the other amount that I mentioned earlier in evidence, your Honour, and that was my contribution to the purchase, to part of the purchase price.”
17 In response to the defendants’ affidavits and submissions, the plaintiff filed an affidavit sworn 3 October 2016. In that affidavit, the plaintiff repeated that in 1990, he acted for the defendant company in relation to the purchase of the property. He said that he contributed $110,000 to the purchase price of $590,000 as well as providing $31,600 in payment of stamp duty in respect of the purchase and transfer of the property into the name of first defendant. He said that he had not kept the file in regard to that purchase.
18 The plaintiff made express reference to the “Vlahos Pty Ltd as Trustee of the Vlahos Family Trust” ANZ Bank statement number 474 for Business Cheque Account No 3056-13107 for the period 10 August 1990 to 17 August 1990. This comprises part of Exhibit “AV1” to Andrew’s affidavit of 1 September 2016. The bank statement records the deposit and withdrawal of $380,703.92 into and out of the account on 13 August 1990. The bank statement does not disclose the source of the funds. The plaintiff asserts that if these funds and the fully drawn advance of $150,000 were used for the settlement of the purchase of the property, his contribution of $110,000 was included in the amount of $380,703.92.
19 The plaintiff says that, as part of his legal practice as a solicitor, both before and during 1990, it was not unusual to obtain bank cheques to be used at conveyancing settlements. Vendors and mortgagees usually required that cleared funds be available at settlement. Bank cheques satisfied this criterion. In 1990, the plaintiff’s office account and trust account were both with Westpac Banking Corporation (“Westpac”).
20 The plaintiff said that in order to obtain a bank cheque for property settlements, he had to provide the bank with cleared funds. The procedure he used at the time was to write out the cheques from his trust or office account payable to his bank. The bank would then clear the funds and provide him with a bank cheque payable to the entity he nominated. He said that if the settlement cheques were being drawn on his office or trust account on 9 August 1990 in preparation for a settlement on 13 August 1990, then he believes he obtained bank cheques because normal cheques could take up to five business days to clear. Accordingly, he believes he arranged to obtain the bank cheques and deposit them into the ANZ account for Vlahos Pty Ltd and that the funds so deposited formed part of the $380,703.92 which went into the account on 13 August 1990.
21 The plaintiff acknowledges that as a result of the freshly discovered documents, it appears likely that he provided the bank cheques to his father on behalf of the defendant company and those funds, together with other moneys in the company account provided by his parents, were used to effect the purchase of the property.
22 In the affidavit which he swore on 3 October 2016, the plaintiff’s solicitor, Harry Klonis, gave some evidence about inspecting the freshly discovered documents. He also referred to differences between two versions of ANZ bank statement number 474. In one version, there was a handwritten notation, “50 Puck” which was circled with an arrow. This notation was missing in the original bank statement.
23 In response to the affidavits filed on behalf of the plaintiff, Andrew and Mrs Vlahos filed further affidavits in which they explained the position with respect to the notations which Mrs Vlahos made on the newly discovered documents and later erased.
Legal principles
24 The parties appeared to be in agreement about the legal principles governing the application. They accepted the statement of Kenny J in Inspector-General in Bankruptcy v Bradshaw[2] where Her Honour said:[3]
“The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Assn [No 2] (1992) 108 ALR 55 at 61–2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (“UTA”) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Co Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (“Silver Fox”) at [22] and [25].”
[2][2006] FCA 22.
[3]Ibid, at [24].
25 This authority was recently considered and followed by the Victorian Supreme Court in Department of Economic Development, Jobs, Transport & Resources v MG Pastoral Company Pty Ltd.[4] The passage from Bradshaw was also referred to with approval by the Victorian Court of Appeal in Spotlight Pty Ltd v NCON Australia Ltd.[5] Further, the Court of Appeal quoted Bradshaw with approval in Marriner v Australian Super Developments Pty Ltd.[6] In Marriner’s case, the Court of Appeal went on to say:[7]
“Where a case has been closed and a judgment reserved, exceptional circumstances will be required for a court to allow the case to be re-opened. This rule applies with even greater force where reasons for judgment have already been delivered but final orders have not yet been made. The rule is necessary to ensure finality in litigation and the efficient administration of justice and to avoid a re-opened hearing being “bedevilled” by arguments about… the scope of the re-opened proceeding.”
[4][2016] VSC 456 at [24].
[5](2012) 46 VR 1 at [25].
[6][2016] VSCA 141.
[7]At [185].
26 As Emerton J observed in MG Pastoral:[8]
“The Court of Appeal has thereby reconciled the law as described in Bradshaw with the requirement for exceptional circumstances. The public interest in the finality of litigation militates against permitting cases that have been fully argued to be re-opened. In order for matters relevant for the interests of the party to outweigh the public interest in the finality of litigation, those matters must be weighty indeed, that is, they must be exceptional.”
[8]Department of Economic Development, Jobs, Transport & Resources v MG Pastoral Company Pty Ltd [2016] VSC 456, at [28].
27 In the commentary in Williams’ Supreme Court Practice, the learned authors say:[9]
[9]At [49.01.75], page 4858.
“Fresh evidence should be admitted only where it is so material that the interests of justice require it, the evidence if believed would most probably affect the result, the evidence could not by reasonable diligence have been discovered before and the evidence could be admitted on conditions which ensured no prejudice to the other party by reason of its introduction late”.
The parties accepted the accuracy of this proposition.
28 In Smith v New South Wales Bar Association,[10] Brennan, Dawson, Toohey and Gaudron JJ said:[11]
“If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete or one in which reasons for judgment have been delivered… In the latter situation, the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised”
[10](1992) 176 CLR 256.
[11]Ibid, 266-7.
29 In their submissions, the defendants submitted that the threshold for re-opening a case is higher after judgment but before final orders than prior to judgment, and that the threshold is yet higher again on appeal. In an appeal context, they submitted that the standard required that, not only should the proposed evidence be reasonably credible, but also that:
(a) by the exercise of reasonable diligence, such evidence could not have been discovered in time to be used in the original trial; and
(b) it is reasonably clear that if the evidence had been available at trial, and had been adduced, an opposite result would have been produced.
These two criteria applicable to the introduction of fresh evidence on appeals are well established by long-standing authority.[12]
[12]See Williams’ Supreme Court Practice, [64.01.550] and the cases cited therein.
30 Generally, a party seeking to re-open its case must be free of any responsibility for the circumstances giving rise to the need to re-open the case.[13]
[13]Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
31 The High Court in Metwally v University of Wollongong[14] said that a party is bound by the conduct of its case. Other than in the most exceptional circumstances, it would be contrary to principle to allow a party, after a case has been decided adversely to the party, to raise a new argument which, whether deliberately or inadvertently, the party failed to put during the hearing when it had the opportunity to do so.
[14](1984) 158 CLR 447.
32 In summary, the effect of the authorities is that:
· Bradshaw sets out the recognised classes where the court can grant leave to re-open;
· those classes are not exhaustive or closed;
· in order to permit the introduction of fresh evidence and a re-opening of the case at this point in the litigation where reasons for judgment have been delivered but final orders not entered, the circumstances must be exceptional;
· when assessing the circumstances, the court is entitled to give consideration to factors including whether the evidence could have been found earlier and why it was not, whether the evidence might or would have produced the opposite result in the litigation, and the prejudice to the other party if the evidence is introduced late.
Defendant’s submissions
33 The defendants submitted that they should be allowed to re-open their case for the following reasons:
(a) they gave a credible explanation for the late production of the evidence;
(b) the non-production was not an afterthought or the result of a deliberate decision not to produce;
(c) the documents are credible and show unambiguously all the funds for the settlement for the purchase of the property came from the company’s account with the ANZ.
(d) to the extent that the court’s findings in respect of the resulting trust were in doubt, the court’s finding about the minute of agreement drawn by Joe must also be in doubt – for the plaintiff to have given consideration for the execution of that company minute by the abandonment of his claim to a resulting trust, as the court found, such a claim must have existed.
Consideration of the defendants’ submissions
(a) Credible explanation
34 The fact that the defendants have explained the situation with the fresh evidence and how the documents were produced is but one factor to take into account. Moreover, giving an explanation is one thing. Whether or not it is satisfactory is another. It remains true that Andrew lived for years in the same house as his parents where his father kept his business records and those of Vlahos Pty Ltd. At the request of his solicitors, Andrew had, on more than one occasion, looked through those records in an effort to find relevant documents. Indeed, he had looked at some of the pages within the very file where his wife says she located the new documents. While I have no reason to doubt that the file description referred to the lease of the property, the reference to the property the subject of this case ought to have identified the file as one of potential significance where the property was the subject of this litigation between the parties. Given the possible significance of the documents in the file was obvious to Mrs Vlahos, then it should have been at least equally obvious to Andrew, who knew more about the dispute and historically, had greater involvement with the property than his wife. Andrew gave scant attention to the file and its contents.
35 I consider that the failure by Andrew to discover the bank documents now sought to be introduced into evidence resulted from a lack of reasonable diligence on his part: he had the documents in his possession and control at all material times; he actually looked at the file containing the documents; notwithstanding the reference to the property on the file name, he did not bother to check the whole file.
(b) Non-production not deliberate
36 If the defendants’ testimony regarding the fresh evidence is taken at face value, then the failure to produce the evidence at trial was not a deliberate and calculated decision. Thus, on this basis, it could not be said that justice required the defendants to be bound by the decision they made not to adduce the evidence. While in some respects the timing of the finding of the fresh evidence was convenient and aspects of the testimony regarding the new evidence were a little dubious, there was no significant benefit to the defendants in withholding the evidence from the court at trial. Had it been produced at the hearing, the defendants would have had a better basis to attack the plaintiff’s claim. Although the defendants were cross-examined on their affidavits and it was suggested that they were aware before trial of the fresh evidence and intentionally withheld it, I am not satisfied that the defendants acted in this way.
37 Although I am not prepared to find that Andrew and Mrs Vlahos deliberately mislead the court and concocted a story, I do have some concerns about the evidence in support of the application to adduce fresh evidence.
38 First, Mrs Vlahos gave contradictory evidence about the erasing of the notations she made on the bank statements. On one hand, she said that she erased the markings she made before sending the documents to the solicitor. On the other hand, she said that she re-sent the same email she sent to her husband in which the notations appeared.
39 Secondly, in the course of their cross-examination, Andrew and Mrs Vlahos gave conflicting evidence about the notations, their removal and their conversations about the same.
40 Thirdly, given the nature of the relationship between Andrew and Mrs Vlahos and her background, I find it odd that she would decide to throw away business documents from her husband’s study without consulting him.
(c) Fresh evidence is credible
41 The defendants argued that James could not have drawn a bank cheque payable to Westpac and paid it directly to the vendor at settlement. They also argued that the documents undermined the court finding that the “contemporaneous records which [the plaintiff] produced provided solid documentary support for his claims”. Hence, they contended that the new evidence cast doubt on the whole of the plaintiff’s case in relation to the resulting trust, both as alleged and as found by the court.
42 The documents are contemporaneous and, to the extent that they were produced by a bank, are likely to be a credible source of information. I accept that a fair reading of the new documents, in the context of the other evidence, reveals that very probably James did not pay directly to the vendor of the property a bank cheque. The two amounts comprising the purchase price, namely $380,703.92 and $150,000, came from the first defendant’s bank account and a bank loan respectively.
43 I do not consider that the fresh evidence, if adduced and given full effect, might have produced the opposite result.[15] The new evidence shows that on 13 August 1990, $380,703.92 was credited to an ANZ account of Vlahos Pty Ltd and the same amount was debited to the account on the same day. But the newly found bank statements do not disclose how the $380,703.92 was calculated or made up, or the source or origin of those funds. Because the documents are silent on this point, they do not have the effect of contradicting the evidence at trial by James that he contributed $110,000 to the purchase of the property. While I accept that the documents indicate an inconsistency with the plaintiff’s evidence about paying the $110,000 by bank cheque directly to the vendor, this, in my view, falls far short of undermining the plaintiff’s case to the extent of arguably bringing about the opposite result.
[15]Thus, if it could not meet this threshold, the evidence was insufficient to definitely produce the opposite result.
44 Given the time which has elapsed since 1990 and the limited number and type of documents available from which to refresh memory, it is hardly surprising that some error in detail has emerged. However, it remains the case that two of the cheque butts referred to at trial indicate that two cheques, one on the Valos Black & Associates’ office account and another on the Valos Black & Associates’ trust account, were both originally made in favour of the ANZ but were later altered and made payable to Westpac. This chain of events is consistent with the affidavit evidence given by James on this the application in which he explained the need for cleared funds to be provided by way of bank cheque to achieve settlement of the purchase of the property.
45 Given the dates of the cheques, 9 August 1990, the date of settlement, namely 13 August 1990, and the time needed to clear cheques, it makes practical sense that James drew on his account or accounts with Westpac in order to obtain bank cheques for the $110,000 he was contributing to the settlement. Nothing in the new documents is inconsistent with that explanation of events. The error James appears to have made was saying the bank cheques he obtained went directly to the vendor of the property and not via Vlahos Pty Ltd.
46 As I said in my reasons for judgment:
“When reaching a decision on the evidence about the alleged contribution, the court is effectively confined to the oral evidence of James, and the documentary evidence. To a degree, the conclusion depends on an assessment of the credit of James as a witness.”
Even if the fresh evidence were allowed and given full effect, as contended for the by the defendants, I do not consider that it would cause me to change my view of the plaintiff’s credit. I found James a credible witness and accepted that he joined with his parents in contributing funds to the purchase of the property. Further, the evidence would not affect that part of the judgment dealing with the minute which the accountant drew to give effect to the agreement between James and Andrew.
47 Because I see no sufficient reason to revise my view about the plaintiff’s credit, I remain satisfied that James contributed $110,000 to the purchase of the property and $31,600 to the payment of stamp duty in relation to that purchase, and that the contribution was not a loan but reflected a form of joint enterprise with his parents (or more accurately, the trust). That being so, the judgment of Gibbs CJ in Calverley v Green[16] is pertinent where His Honour said:[17]
“Similarly, if the purchase money is provided by two or more persons jointly, and the property is put into the name of one only, there is, in the absence of any such relationship, presumed to be a resulting trust in favour of the other or others. For the presumption to apply the money must have been provided by the purchaser in his character as such – not, for example, as a loan.”[18]
[16](1984) 155 CLR 242.
[17]Ibid, 246.
[18]Other judges in the case accepted the same point. See for example Deane J at 266-7.
48 I do not consider that James made a loan to the trust or intended to benefit his parents and/or siblings at his own expense. I remain of the view that there is a resulting trust in favour of the plaintiff.
(d) Fresh evidence undermines whole judgment
49 I disagree with the defendants’ contention that James could give good consideration for the agreement with Andrew only if James had a legitimate claim to a resulting trust. Notwithstanding my invitation to the parties to deal at greater length with this point, they did not do so. I had thought the matter relevant because, if the new evidence would leave unaffected a basis upon which the plaintiff succeeded at trial, then prima facie, there was little or no utility in allowing the fresh evidence (assuming it was appropriate to permit its adduction).
50 There is clear authority that the compromise of a bona fide claim is sufficient consideration to support a contract even if it later appears that the claim could not have succeeded.[19] In my view, James plainly had a bona fide claim regarding the contribution he made to the purchase of the property. Even if the claim to the resulting trust had failed, I find that James believed he had such a claim and the claim was not vexatious or frivolous.
[19]Callisher v Bischoffscheim (1870) LR 5 QB 449, 452; Wigan v Edwards (1973) 47 ALJR 586; and Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, 698 (CA).
51 As to any prejudice which James might suffer if the fresh evidence were allowed, clearly, if that evidence had been discovered when it ought to have been, the plaintiff might not have committed in his evidence to a version of events which appears inconsistent with the new documents. I regard the inconsistency as relatively minor in the context because it relates only to the recipient of the bank cheques which James obtained. In most cases, the details in the evidence are important. However, some matters are more critical than others. Crucial questions in this case were whether James made any, and what, contribution to the purchase price of the property, and if so, was it by loan or otherwise. Hence, while James might have been in error about whether money went directly to the vendor or through Vlahos Pty Ltd, I consider that this is not germane to the crucial issues.
Conclusion
52 In short, this is a case in which:
(a) the fresh evidence could and should have been found before the trial;
(b) even if the fresh evidence were admitted and accepted at face value, that evidence would be most unlikely to affect the outcome –it certainly would not have resulted in the dismissal of the plaintiff’s claim.
(c) there is some risk of prejudice to the plaintiff – if the fresh evidence is admitted, he will have to give more evidence and be cross-examined about the documents and related topics already covered in the initial hearing;
(d) the defendants are seeking to agitate matters which were available to be dealt with at the trial and should have been addressed at that time. The defendants seek a further opportunity to contest aspects of the plaintiff’s case, both matters of fact and credit.
The circumstances of this case, as summarised in this paragraph, are not in my opinion sufficiently exceptional to warrant the grant of the indulgence sought by the defendants. The interests of justice do not require the court to grant the application to re-open the defendant’s case and introduce the fresh evidence.
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