Timms v Commonwealth Bank; Commonwealth Bank v Timms [2003] NSWSC 576

Timms v Commonwealth Bank; Commonwealth Bank v Timms [2003] NSWSC 576

The financial statements and associated documents were prepared to comply with statutory requirements and ordinary corporate practice, not in contemplation of or in connection with these proceedings. They are business records within the meaning of s.69(1) of the Evidence Act and not excluded by s.69(3). Unfair prejudice was not established; opportunity for cross-examination will be available. Section 1305 of the Corporations Act provides a statutory basis for admission of the signed accounts as books of the company. The documents are therefore admitted into evidence.

Parties
First Plaintiff: Anastasia Timms; Second Plaintiff: Brian Timms; Third Plaintiff: T W Holdings Pty Limited; Fourth Plaintiff: BDA International Pty Limited; First Defendant: Commonwealth Bank of Australia; Third Defendants: Leslie Ludovic Rosenfeld and Alfred Kant t/as Rosenfeld, Kant & Co
Jurisdiction
Australia
Judgment Date
18 June 2003
Procedural Posture
Evidence Admissibility Ruling / Interlocutory Application
Outcome
Documents admitted into evidence
Legal Topics
Admissibility of Company Financial Statements, Business Records Exception, Unfair Prejudice, Statutory Compulsion for Financial Records
Evidence Corporations Admissibility of Company Financial Statements Business Records Exception Unfair Prejudice Statutory Compulsion for Financial Records

Case Brief

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Parties

Anastasia Timms

First Plaintiff

Brian Timms

Second Plaintiff

T W Holdings Pty Limited

Third Plaintiff

BDA International Pty Limited

Fourth Plaintiff

Commonwealth Bank of Australia

First Defendant

Leslie Ludovic Rosenfeld and Alfred Kant t/as Rosenfeld, Kant & Co

Third Defendants

Procedural Posture

Evidence Admissibility Ruling / Interlocutory Application

Legal Issues

  1. 1 Whether company financial statements and drafts were prepared for the purpose of, in connection with, or in contemplation of legal proceedings and are therefore excluded by s.69(3) of the Evidence Act 1995
  2. 2 Whether the court should exercise discretion to exclude the financial statements under s.135 of the Evidence Act for unfair prejudice
  3. 3 Whether s.1305 of the Corporations Act 2001 makes the documents admissible

Ratio Decidendi

The financial statements and associated documents were prepared to comply with statutory requirements and ordinary corporate practice, not in contemplation of or in connection with these proceedings. They are business records within the meaning of s.69(1) of the Evidence Act and not excluded by s.69(3). Unfair prejudice was not established; opportunity for cross-examination will be available. Section 1305 of the Corporations Act provides a statutory basis for admission of the signed accounts as books of the company. The documents are therefore admitted into evidence.

Court Disposition

Documents admitted into evidence

Orders

  • All nine identified documents are admitted into evidence