Ranjit Keshvara v David Murray Blanchett and Grant Edward Burns as liquidators
[2013] NZSC 23
•21 March 2013
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 1/2013 [2013] NZSC 23 |
| BETWEEN RANJIT KESHVARA |
| AND DAVID MURRAY BLANCHETT AND GRANT EDWARD BURNS AS LIQUIDATORS OF APG HOLDINGS LTD (IN LIQUIDATION) |
| Court: Elias CJ, McGrath and Glazebrook JJ |
| Counsel: L Herzog for Applicant |
| Judgment: 21 March 2013 |
JUDGMENT OF THE COURT
A The application for leave to appeal is dismissed.
BThe applicant is to pay to the respondents costs of $2,500 plus all reasonable disbursements to be fixed if necessary by the Registrar.
REASONS
The respondents are the liquidators of APG Holdings Ltd. In the High Court they claimed that Mr Keshvara had breached his duties as a director of APG. This claim was successful.[1]
[1]Blanchett v Keshvara [2011] NZCCLR 34 (HC).
In support of the claim, the liquidators produced a bundle of documents relating to the affairs of APG while Mr Keshvara was a director. At the beginning of the High Court hearing, objection was made to the admission of these documents. Venning J held that, while the documents referred to by Mr Blanchett contained hearsay statements, they were admissible as business records under s 19 of the Evidence Act 2006.
Venning J held that the person most likely to have produced the documents was Mr Antoo, a former employee of the company. Given that seven years had passed since the time of the creation of the records, the Judge considered that Mr Antoo could not reasonably be expected to recollect the matters dealt with in the documents. Accordingly s 19(1)(b) of the Evidence Act applied, as no useful purpose would be served by requiring Mr Antoo to be a witness.[2] Venning J also noted that, as the objection to the documentary evidence was raised at a very late stage,[3] it would have been necessary to adjourn the trial to enable Mr Antoo to be located. He found that undue expense and delay would have been caused and thus that s 19(1)(c) also applied.[4]
[2] At [20].
[3]Counsel for the appellant had not prior to the hearing signalled an objection to any documents contained in a previously filed “Bundle of Documents to be relied upon by the Plaintiffs”.
[4] At [21].
On appeal, the Court of Appeal upheld Venning J’s decision.[5] The Court said that it was not necessary in the circumstances of this case for the liquidators to seek to call more detailed or specific evidence directed at proof of the statutory requirements of s 19. The Court did not accept Mr Keshvara’s submission that the identity of the person or persons who supplied information used for the compilation of the record needs to be precisely demonstrated as a pre-requisite to admissibility.[6]
[5] Keshvara v Blanchett [2012] NZCA 553.
[6] At [32]–[33].
Mr Keshvara seeks leave to appeal on the grounds that the decision of the Court of Appeal conflicts with the decision in Fiefia v Department of Labour.[7] This was a case where Immigration New Zealand sought to rely on a stamped entry in Mr Fiefia’s passport to support the conclusion that he had overstayed a temporary permit. The Court of Appeal in that case held that there must be a sufficient factual foundation in the evidence for establishing that the conditions of admissibility of business records are met before the documentary material may be admitted.[8] In that case, the Court held that, in the absence of sufficient evidence regarding the circumstances in which the record had been supplied, the requirements of s 19 were not met.[9] Fiefia had not been referred to (or by) the Court of Appeal in this case.
[7]Fiefia v Department of Labour [1983] NZLR 704 (CA).
[8] At 706.
[9] At 707.
The decision in Fiefia was made in a different statutory context[10] and at a time when hearsay evidence was generally not admissible, subject to certain exceptions.[11] The situation under the Evidence Act 2006 relating to hearsay is very different.[12]
[10]The relevant statutory provision was s 3 of the Evidence Amendment Act 1980 (No 2). This Act was repealed as from 1 August 2007 pursuant to s 215 of the Evidence Act 2006.
[11] Cross on Evidence (online looseleaf ed, LexisNexis) at [EVAPart2Subpart1.1].
[12] See Evidence Act 2006, s 17.
More importantly, the type of evidence and the factual context in Fiefia was different. In the present case, the High Court was dealing with relatively routine financial transactions with a long time gap. The inference establishing the condition for admissibility under s 19(1)(b) and (c) by the High Court were conclusions of fact arrived at because of the circumstances of the particular case. The High Court’s conclusion was upheld by the Court of Appeal. No question of general or public importance arises.
Leave is therefore declined.
Solicitors:
Mark Henley-Smith, Auckland for applicant
Harkness Henry, Hamilton for respondents