Kumar v Sydney Western Realty Pty Ltd & Anor [2021] NSWDC 430

District Court New South Wales

Medium Neutral Citation: Kumar v Sydney Western Realty Pty Ltd & Anor [2021] NSWDC 430 Hearing dates: 2 – 5 August 2021 Date of orders: 05 August 2021 Decision date: 05 August 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 48 Catchwords: EVIDENCE – credibility evidence – whether exception to credibility rule established – challenge by a party to an opposing party's note on basis of suggested fabrication – tender of document by opposing party as prior consistent statement – whether leave to adduce evidence should be granted – appropriate term for grant of leave Legislation Cited: Evidence Act 1995 (NSW) ss 55, 101A, 102, 108, 135, 136, 192 Cases Cited: Leung v The Queen (2003) 144 A Crim R 441 R v Attallah [2005] NSWCCA 277 Stanoevski v The Queen (2001) 202 CLR 115 Texts Cited: Nil Category: Procedural rulings Parties: Ms D Kumar (plaintiff) Sydney Western Realty Pty Ltd (first defendant) Mr A Singh (second defendant) Representation: Counsel: Mr R O'Neill for the plaintiff Mr M Klooster for the first defendant Mr M Hutchings for the second defendant

Solicitors: Keen Lawyers for the plaintiff Clyde & Co for the first defendant Gilchrist Connell for the second defendant File Number(s): 2020/00062493 Publication restriction: Nil

Judgment

Background 1. During the trial of this matter, I ruled on an evidentiary dispute as to the admissibility of a document and informed the parties that I would publish my reasons for admitting the tender of a document relied upon by the Second Defendant, subject to terms, at the same time I published my substantive reasons. In this short judgment, I separately publish my reasons for admitting the document. They should be read with reference to the more substantive reasons which will separately be published on Caselaw. 2. This proceeding features a claim of professional negligence by a solicitor (the second defendant) in acting for a purchaser (the plaintiff) on a conveyance of property in Toongabbie in the middle of 2019. That property comprised a main house and a granny flat. 3. The dispute between the purchaser and her solicitor emerged when it became apparent, subsequent to the completion of the sale, that the granny flat had been illegally converted from a garage. There had been a prohibition from the local Council on the use of the garage for habitable purposes. Not long after the sale was completed, the local council ordered that the garage be reinstated. The plaintiff claims different heads of financial loss. 4. The plaintiff complains, amongst other things, that she had not been advised by her solicitor of the fact that what she understood was the granny flat was not habitable or to advise her to make the necessary searches which would have enabled this state of affairs to be ascertained. Part of the solicitor's defence is that he did inform the plaintiff of the opportunity for her to make the searches or inquiries which may have revealed the true position – namely, obtaining a building certificate and survey report from Blacktown City Council – but, when given that opportunity, the plaintiff provided him with instructions not to make the inquiry. 5. Mr Singh, principal of the law firm, deposed in his affidavit (affirmed on 24 May 2021) which had been prepared in this proceeding, to a conversation he had with the plaintiff on 31 May 2019. In cross-examination of Mr Singh, Counsel for the plaintiff put to him that the entirety of Mr Singh's account of the conversation did not occur. Mr Singh adhered to his position. 6. In his affidavit, Mr Singh annexed a file note (p 84 of the affidavit). It was a typed note. It stated: "File Note – 31/5/2019 Spoke to client – she does not want to order Building certificate and Survey report. Advised her that this is the only way to find out if the Garage was approved to be converted to a granny flat. It is okay it doesn't matter. She wants extension of cooling off period so she can speak to Tariq regarding Building and Pest inspection." 1. For the hearing that commenced on 2 August 2021, the Court was supplied with three volumes of Court Book; some of which contained the pleadings and the affidavits, but most of which comprised documents. An index to the Court Book, which the Court was informed had been compiled by the plaintiff's solicitor, identified, as 'item 9' of Court Book, "Complete file of Redline Legal Services listed as follows …". Thereafter the index of the Court Book described every document identified as having its provenance in the solicitor's file, comprising pages 496 – 859 (inclusive), which constituted the entirety of Volume 2 of the Court Book. Not all of the Court Book was ultimately tendered. To the contrary, only a small portion of the documents which comprised Volumes 2 & 3 of the Court Book was ultimately tendered. 2. But one of the documents (Exhibit 2D2) tendered by the solicitor in his case was a document titled 'File Note/Progress', which identified the plaintiff's name, her address and the subject matter of the file. Materially, the file note contained entries of a range of conversations between the solicitor and the plaintiff for the duration of the matter, from 27 May 2019 to 1 July 2019. The title to the second column was "Description". In his evidence, the second defendant said that he would record "very important" things in this entry. 3. The description of the entry alongside 31 May 2019 in this particular file note (Exhibit 2D2) stated "Spoke to client. She wants extension-cooling off period'. As is evident, this particular note contained no reference, on its face, to any discussion about the granny flat. 4. There was no other document within Volume 2 of the Court Book that contained a stand-alone file note, for all of the conversations identified in Exhibit 2D2, of the kind apparent in the 'stand-alone' file note for 31 May 2019. 5. At the conclusion of his cross-examination of Mr Singh, Counsel for the plaintiff put to Mr Singh that the file note of his conversation with the plaintiff, which appeared at p 84 of his affidavit, was not created on 31 May 2021, but at a later time. Mr Singh denied the proposition.