In the matter of Calabria Community Club Ltd [2013] NSWSC 303

In the matter of Calabria Community Club Ltd [2013] NSWSC 303

The survey responses were rejected because proof that members had agreed to a new direction was not legally relevant to whether the club's original common fundamental purpose was no longer capable of attainment; the responses were hearsay obtained in contemplation of an Australian proceeding so the business records exception was not made out; and their late tender, inability to cross-examine respondents, and leading questions would cause prejudice significantly outweighing any probative value.

Jurisdiction
Australia
Judgment Date
15 February 2013
Procedural Posture
Procedural and Other Ruling on Evidence Objections in the Equity Division Corporations List / Ruling on the Defendant's Tender of Survey Responses at an Adjourned Hearing After the Plaintiff's Case Was Closed
Outcome
Evidence rejected as irrelevant, hearsay not within the business records exception, and unfairly prejudicial.
Legal Topics
['objections to Evidence' 'relevance' 'hearsay' 'business Records Exception' 'unfair Prejudice' 'failure of Substratum']
['evidence' 'corporations'] ['objections to Evidence' 'relevance' 'hearsay' 'business Records Exception' 'unfair Prejudice' 'failure of Substratum']

Case Brief

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Procedural Posture

Procedural and Other Ruling on Evidence Objections in the Equity Division Corporations List / Ruling on the Defendant's Tender of Survey Responses at an Adjourned Hearing After the Plaintiff's Case Was Closed

Legal Issues

  1. 1 ['Whether member survey responses were relevant to rebut an allegation that the substratum of the club had failed.' 'Whether the survey responses were hearsay admissible as business records under (NSW) Evidence Act 1995, s 69.' 'Whether admitting the survey responses would occasion prejudice that significantly outweighed any probative value.']

Ratio Decidendi

The survey responses were rejected because proof that members had agreed to a new direction was not legally relevant to whether the club's original common fundamental purpose was no longer capable of attainment; the responses were hearsay obtained in contemplation of an Australian proceeding so the business records exception was not made out; and their late tender, inability to cross-examine respondents, and leading questions would cause prejudice significantly outweighing any probative value.

Court Disposition

Evidence rejected as irrelevant, hearsay not within the business records exception, and unfairly prejudicial.

Orders

  • ["The results of members' survey at page 366 and the responses to the survey at pages 367-790 of exhibit GG1 were rejected." 'Pages 871 to 952 were not tendered.' 'The balance of the two volumes exhibit GG1 was to be exhibit DX39.1 and 39.2 respectively.']