Refina Pty Ltd v Binnie [2009] NSWSC 311

New South Wales Supreme Court

CITATION : Refina Pty Ltd v Binnie [2009] NSWSC 311

HEARING DATE(S) : 20 March 2009 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 20 March 2009

DECISION : Tender rejected.

CATCHWORDS : PROCEDURE - Application to have parts of affidavit previously rejected on the grounds of hearsay admitted (following cross-examination) on grounds that they contained admissions made with authority - Evidence Act s 87 - Statements made by contractor of defendant - Statement beyond scope of authority - Statement not admissible

LEGISLATION CITED : (NSW) Evidence Act 1995, s 87

CATEGORY : Procedural and other rulings

CASES CITED : Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90

Refina Pty Ltd (plaintiff) PARTIES : Kevin Douglas Binnie (first defendant) Registrar General of NSW, Dept of Lands (second defendant)

FILE NUMBER(S) : SC 1437/08

COUNSEL : Mr P Tomasetti SC w Mr J Atkin (plaintiff) Mr M K Meek w Ms R Kako (first defendant)

Gregory J Halpin (plaintiff) SOLICITORS : Diamond Conway (first defendant) Registrar General of NSW, Dept of Lands (second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday 20 March 2009

1437/08 Refina Pty Ltd v Kevin Douglas Binnie & anor JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff applies to have certain parts of the affidavit of Gregory John Halpin sworn 14 April 2008, which were previously rejected on the basis that they were hearsay – being conversations between Mr Halpin and one Mr Garry Whiffen – admitted into evidence on the basis of admissions said to have been made in the course of the defendant's cross-examination, which are said to establish that it is sufficiently arguable that Mr Whiffen had the requisite authority to make his statements admissible as admissions on behalf of the defendant, for the purposes of (NSW) Evidence Act 1995, s 87. 2 Although there are numerous conversations in this category, the issue can be refined to focus on a conversation said to have taken place between Mr Halpin and Mr Whiffen on 14 June 2007, referred to in paragraph 24 of the subject affidavit. In the course of that conversation, Mr Whiffen and Mr Halpin discussed arrangements for the relocation of the fence from the eastern to the western side of the disputed strip, pursuant to an agreement that had apparently been reached between the parties. 3 Mr Halpin claims that he said, in the course of the conversation, "Garry, tell Kevin to place the fence on the boundary by 18 July 2007 or I will pursue the possessory title claim." He says that Mr Whiffen replied, "You can't do that any more." Mr Halpin allegedly responded, "If the fence is not relocated on the boundary by 18 July 2007 I can." Mr Whiffen is said to have rejoined, "Kevin received legal advice. He changed the boundaries so you can't make any claim". The plaintiff wishes to rely on this as an admission, on behalf of the defendant, that the registration of the plan of re-subdivision was a deliberate step to defeat the potential possessory application previously said to have been foreshadowed on behalf of the plaintiff. 4 Evidence Act s 87 provides as follows: