Official Trustee in Bankruptcy v. D'Jamirze & Ors. [1999] NSWSC 986

New South Wales Supreme Court CITATION : Official Trustee in Bankruptcy v. D'Jamirze & Ors. [1999] NSWSC 986 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : No. 3593 of 1997 HEARING DATE(S) : 23rd September 1999 JUDGMENT DATE : 23 September 1999

PARTIES : Official Trustee in Bankruptcy (Plaintiff) Valentina D'Jamirze (and ten others - see court file) (Defendants) JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. J. Johnson for Plaintiff Mr. C. Moore for Defendants SOLICITORS : Gordon & Johnstone, Sydney for Plaintiff The Law Partnership, Sydney for Defendants CATCHWORDS : EVIDENCE - Documents - Request for Evidence as to Authenticity - Not Complied with - Whether Document Should be Admitted ACTS CITED : Evidence Act 1995 (NSW) ss.166, 167, 169 DECISION : See par.15 of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Thursday 23rd September 1999

NO. 3593 OF 1997 OFFICIAL TRUSTEE IN BANKRUPTCY V. D'JAMIRZE & ORS. JUDGMENT (on admissibility of documents see page 10)

1 HIS HONOUR: During the reading of affidavits in this matter Mr Johnson, for the plaintiff, objected to the tender of certain documents: firstly, a document in Russian purporting to be an agreement by certain of the defendants to give their interests in the subject land to the cross-claimant in exchange for the equivalent of $700,000; and secondly, another document in Russian purporting to be a receipt for the equivalent of $700,000. 2 The objection then articulated was that the purported agreement was not stamped and was therefore inadmissible; and that no documents would be admissible to prove the transaction purportedly effected by that unstamped document. 3 Following that objection being taken, the cross-claimant undertook the stamping of the purported agreement, and that has now happened. 4 The tender of these documents has been renewed, and Mr Johnson has raised further objections to them. He has referred to evidence that, about a year ago, notices were given to the solicitor for the cross-claimant pursuant to s.167 of the Evidence Act, making a reasonable request for the purpose of determining a question relating to the authenticity, identity or admissibility of these documents, the request being that the signatories to both documents put on evidence in the case. 5 The situation now is that five of the eight signatories of the agreement have put on evidence, but the signatory to the receipt document has not; and no sworn evidence explaining the non-compliance with the request has been put on. 6 In those circumstances Mr Johnson submitted that those documents should be excluded, pursuant to s.169(1)(c) of the Evidence Act. The signatory to the receipt was apparently the only signatory to any document who was not a member of the family of the defendants, the cross-claimant being the husband of one of the other defendants. Only if that signatory was called could the authenticity of the receipt be properly tested. As regards the purported agreement, Mr Johnson submitted that there was no question of the availability of the other three signatories: indeed, a statement from the remaining three had been provided, two of them sworn, yet no explanation was offered for not calling them to give evidence. Mr Johnson submitted that the appropriate course would be to exclude the document or, alternatively, to admit it on the basis that it could only affect the interests in the property of the signatories who were called to give evidence. 7 Mr Moore, for the cross-claimant, submitted that I should infer that the signatory of the receipt was in Russia, and that it was reasonable for the defendants not to put on evidence from that signatory. He submitted that the evidence provided in relation to the other document showed that the persons principally involved had put on evidence, and that some of those less directly involved had also put on evidence. The plaintiff had been provided with ample opportunity through that evidence to test the authenticity of the document. He also indicated that, if the objection was maintained and the Court was otherwise minded to uphold it, the remaining three signatories would be produced for cross-examination. 8 Sections 166, 167 and 169 of the Evidence Act are in the following terms: 166. In this Division: "request" means a request that a party ("the requesting party") makes to another party to do one or more of the following: