Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654

Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 654

Most of the challenged documents were admissible without a s 136(a) limitation because, although Mr Barr would not be available for cross-examination, the surrounding documentary and oral evidence provided a reasonable basis to test his representations and there was no sufficient danger of unfair prejudice to warrant departure from the policy of the Evidence Act 1995. The letters at Tabs 698 and 701 were rejected because, although the Tab 698 fax was a business record, the correspondence was prepared when litigation over the termination of the lease was distinctly in contemplation and was therefore excluded by s 69(3) from the business records exception, leaving it rejected as hearsay.

Jurisdiction
Australia
Judgment Date
26 June 2008
Procedural Posture
Procedural and Other Rulings / Ruling on Defendant's Objections to Plaintiffs' Tender of Documents
Outcome
Documents at Tabs 698 and 701 rejected; all other documents admitted without limitation on use under s 136 of the Evidence Act 1995.
Legal Topics
['admissibility of Documentary Evidence' 'business Records Exception to Hearsay' 'hearsay' 'limitation on Use of Evidence' 'unfair Prejudice' 'contemplation of Legal Proceedings' 'inability to Cross Examine']
['evidence' 'civil Procedure'] ['admissibility of Documentary Evidence' 'business Records Exception to Hearsay' 'hearsay' 'limitation on Use of Evidence' 'unfair Prejudice' 'contemplation of Legal Proceedings' 'inability to Cross Examine']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Procedural and Other Rulings / Ruling on Defendant's Objections to Plaintiffs' Tender of Documents

Legal Issues

  1. 1 ['Whether documents containing statements by or attributed to Mr Barr were admissible as business records under s 69 of the Evidence Act 1995.' 'Whether the use of admitted documents should be limited under s 136(a) because Mr Barr would not give evidence and could not be cross-examined.' 'Whether particular documents should be excluded under s 135 because their probative value was substantially outweighed by unfair prejudice.' 'Whether letters at Tabs 698 and 701 were excluded from the business records exception by s 69(3) because they were prepared in contemplation of litigation.']

Ratio Decidendi

Most of the challenged documents were admissible without a s 136(a) limitation because, although Mr Barr would not be available for cross-examination, the surrounding documentary and oral evidence provided a reasonable basis to test his representations and there was no sufficient danger of unfair prejudice to warrant departure from the policy of the Evidence Act 1995. The letters at Tabs 698 and 701 were rejected because, although the Tab 698 fax was a business record, the correspondence was prepared when litigation over the termination of the lease was distinctly in contemplation and was therefore excluded by s 69(3) from the business records exception, leaving it rejected as hearsay.

Court Disposition

Documents at Tabs 698 and 701 rejected; all other documents admitted without limitation on use under s 136 of the Evidence Act 1995.

Orders

  • ['Documents at Tab 698 and Tab 701 rejected.' 'All other documents admitted without s 136(a) limitation on use.']