Peri Australia Pty Limited v Celtic Form Pty Limited [2009] NSWDC 393

New South Wales District Court

CITATION: Peri Australia Pty Limited v Celtic Form Pty Limited [2009] NSWDC 393

JUDGMENT DATE: 6 October 2009

JURISDICTION: District Court of New South Wales

JUDGMENT OF: Cogswell SC DCJ

DECISION: The paragraphs are relevant and admissible.

CATCHWORDS: CIVIL LAW - evidence - objection to tender to paragraphs in a document on grounds of breach of the opinion rule, matters of form and relevance

LEGISLATION CITED: Evidence Act 1995 s 79

PARTIES: Peri Australia Pty Limited v Celtic Form Pty Limited

FILE NUMBER(S): 6111/08

COUNSEL: Mr H Stitt (for the plaintiff) Mr B Hull (for the defendant)

JUDGMENT

1. Mr Stitt, who appears for the plaintiff, has objected to paragraph 37 through to and including paragraph 52 of a document that it was previously agreed would be admitted subject to objections and became Exhibit 1.

2. This case concerns a claim by the plaintiff for payment from the second defendant for supply of materials to the first defendant. The first defendant has gone into liquidation and the second defendant is sued as guarantor. Part of the defence of the second defendant relies upon its assertion that the plaintiff itself breached its contract with the first defendant and as a result of that breach the first defendant had to incur expenses to put itself back in the position it would have been if the breach had not occurred. There is a legal issue in this case as to whether the second defendant will be able to rely upon a defence of that kind, which is like adopting a set off available to another party.

3. The paragraphs objected to are assertions by the second defendant, Mr McGuire, concerning expenses which the first defendant, his company Celtic Form Pty Limited in liquidation, had to incur to rectify, so to speak, what they claimed was the breach of contract by the plaintiff. Mr McGuire was, at all relevant times, the sole director of Celtic Form Pty Limited. The paragraphs in the statement refer to Exhibit 2, which is a folder of documents called FPM1 which accompanies Mr McGuire's statement, Exhibit 1. Exhibit 2 was also admitted subject to any objections. The documents in Exhibit 2 which are relevant to Mr Stitt's objection comprise a list, presumably compiled by Mr McGuire, of additional expenses which the first defendant would not have otherwise incurred if - as Mr McGuire claims - the plaintiff had not breached its contract. In addition there are invoices from a company which was hired to manage the project or part of the project and there are records from a bank indicating the payments made by Mr McGuire or Celtic to the various persons who had to be paid as part of what the defendants say was the plaintiff's breach of contract.