Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083

The representations contained in the penultimate paragraph of the letter dated 7 February 2000 and annexed to the affidavit may not be admitted under s 69 for proof of the asserted facts, as they were made both in connection with an existing proceeding and in contemplation of further proceedings, triggering s 69(3). However, the letter may be admitted for the non-hearsay purpose of proving the existence and content of a communication between solicitors.

Parties
Plaintiff: Peter Lawrence Lewis; Applicant: Lamru Pty Ltd; Respondent: Kation Pty Ltd; Liquidator: Brian Raymond Silvia; Defendant: Nortex Pty Ltd (In Liq); Defendant: Mark Lewis
Jurisdiction
Australia
Judgment Date
14 November 2002
Procedural Posture
Equity / Evidentiary Ruling
Outcome
Representations rejected as proof of facts asserted but admitted as evidence of a communication between solicitors.
Legal Topics
Documentary Evidence, Business Records, Admissibility, Communications Between Solicitors, Hearsay
Evidence Documentary Evidence Business Records Admissibility Communications Between Solicitors Hearsay

Case Brief

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Parties

Peter Lawrence Lewis

Plaintiff

Lamru Pty Ltd

Applicant

Kation Pty Ltd

Respondent

Brian Raymond Silvia

Liquidator

Nortex Pty Ltd (In Liq)

Defendant

Mark Lewis

Defendant

Procedural Posture

Equity / Evidentiary Ruling

Legal Issues

  1. 1 Whether the representations contained in the 7 February 2000 letter are admissible as business records under s 69 of the Evidence Act 1995
  2. 2 Whether the letter can be tendered for a non-hearsay purpose as a communication between solicitors

Ratio Decidendi

The representations contained in the penultimate paragraph of the letter dated 7 February 2000 and annexed to the affidavit may not be admitted under s 69 for proof of the asserted facts, as they were made both in connection with an existing proceeding and in contemplation of further proceedings, triggering s 69(3). However, the letter may be admitted for the non-hearsay purpose of proving the existence and content of a communication between solicitors.

Court Disposition

Representations rejected as proof of facts asserted but admitted as evidence of a communication between solicitors.

Orders

  • The whole of the document, including the penultimate paragraph, is admitted under s 136 of the Evidence Act 1995 for proof of the fact and content of the communication between solicitors.
  • The second sentence of paragraph 7 of the affidavit of R W Lamb sworn 29 October 2001 is admitted, except for the words 'as stated in the letter,' which are rejected.