Wily v Terra Cresta Business Solutions Pty Ltd & Ors [2006] NSWSC 949

Wily v Terra Cresta Business Solutions Pty Ltd & Ors [2006] NSWSC 949

The identification of 'the source' of information on information and belief as merely 'our client' or 'the funder' does not satisfy s.75 Evidence Act 1995 (NSW). Further, statements from a non-party litigation funder cannot be admissions under s.87, and even if admissible, should be excluded under s.135 due to potential unfair prejudice and inability to test the evidence.

Parties
Plaintiff/cross Defendant: Andrew Hugh Jenner Wily (in his capacity as Liquidator of Business Australia Capital Mortgage Pty Ltd and Business Australia Capital Finance Pty Ltd); First Defendant: Terra Cresta Business Solutions Pty Ltd; Second Defendants/cross Claimants: Richard Albarran & Geoffrey McDonald t/as Hall Chadwick
Jurisdiction
Australia
Judgment Date
31 August 2006
Procedural Posture
Interlocutory Application / Evidentiary Ruling
Outcome
Evidence rejected
Legal Topics
Hearsay, Admissibility of Evidence, Identification of Source, Interlocutory Proceedings
Evidence Hearsay Admissibility of Evidence Identification of Source Interlocutory Proceedings

Case Brief

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Parties

Andrew Hugh Jenner Wily (in his capacity as Liquidator of Business Australia Capital Mortgage Pty Ltd and Business Australia Capital Finance Pty Ltd)

Plaintiff/cross Defendant

Terra Cresta Business Solutions Pty Ltd

First Defendant

Richard Albarran & Geoffrey McDonald t/as Hall Chadwick

Second Defendants/cross Claimants

Procedural Posture

Interlocutory Application / Evidentiary Ruling

Legal Issues

  1. 1 Whether the source of hearsay evidence in an interlocutory application is sufficiently disclosed by describing it as 'our client'
  2. 2 Whether certain statements in McMahons' letter are admissible under s.75, s.87 or s.135 of the Evidence Act 1995 (NSW)

Ratio Decidendi

The identification of 'the source' of information on information and belief as merely 'our client' or 'the funder' does not satisfy s.75 Evidence Act 1995 (NSW). Further, statements from a non-party litigation funder cannot be admissions under s.87, and even if admissible, should be excluded under s.135 due to potential unfair prejudice and inability to test the evidence.

Court Disposition

Evidence rejected

Orders

  • The third sentence of the third paragraph and the fourth paragraph in Annexure A to Mr Wily's affidavit sworn 31 August 2006 are excluded and do not form part of the tender of that letter, which is otherwise admitted.