De Bortoli Wines Pty Limited v HIH Insurance Limited (in liq) [2011] FCA 645

FEDERAL COURT OF AUSTRALIA

De Bortoli Wines Pty Limited v HIH Insurance Limited (in liq) [2011] FCA 645 Citation: De Bortoli Wines Pty Limited v HIH Insurance Limited (in liq) [2011] FCA 645

Parties: DE BORTOLI WINES PTY LIMITED (ACN 000 146 672) v HIH INSURANCE LIMITED (IN LIQ) ACN 008 636 575, ANTHONY GREGORY MCGRATH IN HIS CAPACITY AS LIQUIDATOR OF HIH INSURANCE LIMITED (IN LIQ) ACN 008 636 575 and CHRISTOPHER JOHN HONEY IN HIS CAPACITY AS LIQUIDATOR OF HIH INSURANCE LIMITED (IN LIQ) ACN 008 636 575

File number: NSD 147 of 2010

Judge: STONE J

Date of judgment: 9 June 2011

Catchwords: CORPORATIONS – s 1321 Corporations Act 2001 (Cth) and reg 5.6.54 Corporations Regulations 2001 – appeal from liquidators rejection of formal proof of claim –consideration of role of liquidators in determining whether to admit or reject proofs – role is quasi-judicial – appeal from liquidators' decision is interlocutory EVIDENCE – hearsay evidence – consideration of exceptions to hearsay rule – whether transcript of examination under s 596B Corporations Act admissible – s 597(14) Corporations Act not relevant – whether transcript admissible under s 69 Evidence Act 1995 (Cth) as business record – whether admissible under s 75 Evidence Act because interlocutory proceeding – section requires particular identification of the maker of representation – even if maker identified transcript not admissible merely because interlocutory proceeding – Court has discretion to exclude evidence where prejudice outweighs probative value – transcript not admissible under exceptions to hearsay rule TRADE PRACTICES – applicant claims shares purchased in reliance on misleading and deceptive conduct in breach of s 52 Trade Practices Act 1974 (Cth) – consideration of causation and reliance – conduct need not be sole cause of loss – carelessness not a bar to recovery of damages under s 82 Trade Practices Act – question of reliance to be considered in light of the circumstances surrounding each purchase – applicant relied on own judgment and experience – reliance not established