Shafston Avenue Construction Pty Ltd, in the matter of CRCG-Rimfire Pty Ltd (subject to deed of company arrangement) v McCann (No 2) [2020] FCA 1444

Shafston Avenue Construction Pty Ltd, in the matter of CRCG-Rimfire Pty Ltd (subject to deed of company arrangement) v McCann (No 2) [2020] FCA 1444

The Ripple Estimate contained Ripple's opinions about the cost of remedial work. It could not be tendered under s 69 of the Evidence Act 1995 (Cth) as a business record because the requirements of s 76 of the Evidence Act and r 23 of the Federal Court Rules 2011 (Cth) concerning expert evidence had not been complied with. In any event, the affidavit showed that annexure "MGH-1" was obtained by the plaintiffs in connection with this proceeding, so s 69(3)(a) also prevented its tender. Both grounds of objection were therefore upheld.

Jurisdiction
Australia
Judgment Date
01 September 2020
Procedural Posture
Commercial and Corporations; Corporations and Corporate Insolvency / Objections to Tender of Affidavit Evidence at Hearing
Outcome
Both grounds of objection upheld.
Legal Topics
['hearsay' 'opinion Evidence' 'business Records Exception' 'expert Evidence' 'documents Prepared in Connection With Proceedings']
['evidence' 'corporations and Corporate Insolvency'] ['hearsay' 'opinion Evidence' 'business Records Exception' 'expert Evidence' 'documents Prepared in Connection With Proceedings']

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Procedural Posture

Commercial and Corporations; Corporations and Corporate Insolvency / Objections to Tender of Affidavit Evidence at Hearing

Legal Issues

  1. 1 ['Whether paragraphs 23 and 24 of Mr Gaskin-Harris\' affidavit and annexure "MGH-1" contained inadmissible hearsay opinion evidence.' 'Whether pages 453-462 of annexure "MGH-1" could be tendered as business records under s 69 of the Evidence Act 1995 (Cth).' 'Whether s 69(3)(a) of the Evidence Act 1995 (Cth) prevented admission because the Ripple Estimate was prepared in connection with the proceeding.' 'Whether s 69(3)(a) applies only where the sole or only purpose of the tender is in connection with the proceeding.']

Ratio Decidendi

The Ripple Estimate contained Ripple's opinions about the cost of remedial work. It could not be tendered under s 69 of the Evidence Act 1995 (Cth) as a business record because the requirements of s 76 of the Evidence Act and r 23 of the Federal Court Rules 2011 (Cth) concerning expert evidence had not been complied with. In any event, the affidavit showed that annexure "MGH-1" was obtained by the plaintiffs in connection with this proceeding, so s 69(3)(a) also prevented its tender. Both grounds of objection were therefore upheld.

Court Disposition

Both grounds of objection upheld.

Orders

  • ['Both grounds of objection to the tender of [23] and [24] and annexure "MGH-1" of Mr Gaskin-Harris\' affidavit made 17 July 2020 are upheld.']