Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 922

Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 922

Although the notices of valuation are business records and the opinion rule does not bar their admission, the court exercises its discretion under Evidence Act, s 135, to exclude the evidence as its admission would be unfairly prejudicial to the defendant, given that a valuer's evidence will be tested in...

Source-derived case information.

Parties
First Plaintiff: Eddie Michael Awad; Second Plaintiff: Karen Elizabeth Awad; Defendant: Twin Creeks Properties Pty Ltd
Jurisdiction
Australia
Judgment Date
27 June 2011
Procedural Posture
Procedural Ruling / Application to Admit Evidence
Outcome
Refuse to admit notices of valuation
Legal Topics
Admissibility of Business Records, Opinion Rule, Valuation Evidence, Discretion to Exclude Evidence
Evidence Admissibility of Business Records Opinion Rule Valuation Evidence Discretion to Exclude Evidence

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Parties

Eddie Michael Awad

First Plaintiff

Karen Elizabeth Awad

Second Plaintiff

Twin Creeks Properties Pty Ltd

Defendant

Procedural Posture

Procedural Ruling / Application to Admit Evidence

Legal Issues

  1. 1 Whether notices of valuation issued by the Valuer-General are admissible as evidence of value under the business records exception to the hearsay rule
  2. 2 Whether opinion rule applies to statements of value in business records
  3. 3 Whether Makita principles affect the admissibility of opinion evidence in business records

Ratio Decidendi

Although the notices of valuation are business records and the opinion rule does not bar their admission, the court exercises its discretion under Evidence Act, s 135, to exclude the evidence as its admission would be unfairly prejudicial to the defendant, given that a valuer's evidence will be tested in cross-examination and the notices' provenance will not.

Court Disposition

Refuse to admit notices of valuation

Orders

  • Paragraphs 63 and 86 of the affidavit are rejected pursuant to s 135 of the Evidence Act.