Wood v Inglis

[2009] NSWSC 313

CITATION:	Wood v Inglis [2009] NSWSC 313
HEARING DATE(S):	30 March 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	30 March 2009
DECISION:	Documents admitted.
CATCHWORDS:	EVIDENCE – Business records – whether order limiting to non-hearsay use under s 136 should be made.
LEGISLATION CITED:	(NSW) Evidence Act 1995, s 69, s 136
CATEGORY:	Procedural and other rulings
PARTIES:	First Cross Claim: Helen Margaret Inglis (cross-claimant) Inglis Research Trust P/L (first cross-defendant) Kathryn Margaret Clark (second cross-defendant) Michael William Inglis (third cross-defendant) Pamela Ruth Wood (fourth cross-defendant) Fiona Jane Narlini Inglis (fifth cross-defendant) William Keith Inglis (sixth cross-defendant)
FILE NUMBER(S):	SC 1595/08
COUNSEL:	Mr J E Thomson w Mr H N Newton (cross-claimant) Mr B J Burke (second cross-defendant) Mr M B Evans (third cross-defendant) Ms J A Needham SC w Mr R M Higgins (fourth cross-defendant)
SOLICITORS:	Michael C Smith (cross-claimant) Courtenay & Co (second cross-defendant) Molloy & Schrader (third cross-defendant) DSC Law (fourth cross-defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday 30 March 2009

1595/08 Pamela Ruth Wood v Helen Margaret Inglis

JUDGMENT (ex tempore) (On admissibility of evidence)

1 HIS HONOUR: The cross-claimant tenders the financial statements for the Inglis Research Trust prepared by the external accountant Mr Tierney for the years ended 1999 to 2006 inclusive. The cross-defendants submit that those statements should be admitted only subject to an order under (NSW) Evidence Act 1995, s 136, to the effect that they be evidence of what was prepared by Mr Tierney, but not evidence of the truth of the previous representations contained in them as to the state of financial affairs of the Inglis Research Trust.

2 Evidence Act, s 69, applies to a document that is, or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of a business, or that at any time was, or formed part of such a record, and that contains a previous representation made or recorded in the document in the course of, or for the purposes of, that business. Sub-section (2) provides that the hearsay rule does not apply to the document so far as it contains such representation if the representation is made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or on the basis of information directly or indirectly provided by a person who had or might be supposed to have personal knowledge of the asserted fact.

3 The documents in question have each been authenticated by the signature of Mr Tierney, a partner in the accountancy firm Manser Tierney & Johnson, albeit subject to a disclaimer that as the accountant had not audited the accounts he expressed no opinion on the appropriateness of the accounting methodology adopted, or whether they presented a true and fair view of the position of the Trust.

4 There is evidence, contained in the affidavit of Helen Margaret Inglis of 27 March 2009, that each relevant year financial statements of the Trust, bound with the financial statements of the Trustee company Inglis Research Pty Limited, were provided to Dr and Mrs Inglis for signature, together with income tax returns for the Trust. Against that there is, as Mr Burke has pointed out, an inference available that the income tax returns – which were evidently adopted and lodged – disclosed an income and liabilities different from those that appeared in the financial statements of the Trust. There may be many explanations for this, but one is that the figures in the Trust financial statements were not necessarily adopted by the Trustee.

5 Mr Tierney was the external accountant for Dr Inglis, the Trustee company and the Trust. It is plain that the financial statements of the Trust form part of the records belonging to or kept by the Trust in the course of its business. (They may well also form part of the records kept by Manser Tierney & Johnson in the course of their business). They contain previous representations as to the assets, liabilities, income and expenditure of the Trust. Mr Tierney, as the external accountant of the Trust, might reasonably be supposed, if not to have personal knowledge of those matters, at least to have made the entries in the financial statements on the basis of information directly or indirectly supplied by Dr Inglis, who had personal knowledge of them.

6 In my view, therefore, the financial statements of the Trust are admissible business records of the Inglis Research Trust, within Evidence Act, s 69. In that context it would defeat the purpose of s 69(2) to limit their use to a non-hearsay purpose.

7 It may well prove that, just as at least some of the income tax returns suggest that what was disclosed for income tax purposes differs from what was in the financial statements, other evidence also might tend to show that the representations contained in those financial statements are not accurate. The admission of these financial statements as business records provides only some evidence of the truth of the previous representations contained in them; they are not conclusive evidence of those matters, and the contrary may be established by other evidence. But the fact that a previous representation may be contradicted by other evidence is no reason to hold it inadmissible, any more than the fact that oral or affidavit evidence may be contradicted by other evidence is any reason to exclude it.

8 The documents in question will be admitted for all purposes. There will be no s 136 order in respect of them.

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