Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 1295

Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 1295

Mr Diddams' affidavit was admissible because it was reasonably open to find that Ms Murray had authority to act for Mr Simkin and Ms Dwyer in relation to sale of their unit and her statements related to that authority; any Browne v Dunn issue did not require rejection, particularly in affidavit proceedings where notice had been given by service. Document LO24.1 was rejected because it did not inform the identified fact in issue, namely when any intention was formed to locate thrill rides north of Coney Island. Documents at pages 1-211 to 1-233 were admitted because it was reasonably open, including from apparent distribution indications and clearer notice, to find they came to the...

Jurisdiction
Australia
Judgment Date
23 October 2007
Procedural Posture
Equity Division Proceedings Concerning Admissibility of Evidence / Ex Tempore Rulings on Admissibility of Evidence During Hearing
Outcome
Affidavit admitted; document at LO24.1 rejected; documents at 1-211 to 1-233 admitted; tab 46 of PH 3 rejected.
Legal Topics
['rule in Browne V Dunn' 'affidavit Evidence' 'admissions by Agent' 'relevance' 'provisional Relevance']
['evidence'] ['rule in Browne V Dunn' 'affidavit Evidence' 'admissions by Agent' 'relevance' 'provisional Relevance']

Case Brief

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Procedural Posture

Equity Division Proceedings Concerning Admissibility of Evidence / Ex Tempore Rulings on Admissibility of Evidence During Hearing

Legal Issues

  1. 1 ['Whether the affidavit of John Flower Diddams was admissible as evidence of admissions by an agent notwithstanding that Mr Simkin and Ms Dwyer were not cross-examined about it.' 'Whether document LO24.1 was relevant to a fact in issue concerning when an intention was formed to locate thrill rides north of Coney Island.' 'Whether documents at pages 1-211 to 1-233 were admissible on the basis of provisional relevance to intention and knowledge of the third and fourth defendants.' "Whether tab 46 to exhibit PH 3 was relevant to the plaintiffs' proposed argument concerning avoidance of planning authority attention to noisy thrill rides north of Coney Island."]

Ratio Decidendi

Mr Diddams' affidavit was admissible because it was reasonably open to find that Ms Murray had authority to act for Mr Simkin and Ms Dwyer in relation to sale of their unit and her statements related to that authority; any Browne v Dunn issue did not require rejection, particularly in affidavit proceedings where notice had been given by service. Document LO24.1 was rejected because it did not inform the identified fact in issue, namely when any intention was formed to locate thrill rides north of Coney Island. Documents at pages 1-211 to 1-233 were admitted because it was reasonably open, including from apparent distribution indications and clearer notice, to find they came to the...

Court Disposition

Affidavit admitted; document at LO24.1 rejected; documents at 1-211 to 1-233 admitted; tab 46 of PH 3 rejected.

Orders

  • ['The affidavit of John Flower Diddams sworn 29 November 2005 is admissible and will be read.' 'Document LO24.1, being pages 1-1 to 1-210, is rejected.' 'The document at pages 1-211 to 1-230 is admitted.' 'The document at pages 1-231 to 1-233 is admitted.' 'Tab 46 to exhibit PH 3 remains rejected.']