Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411

New South Wales Supreme Court

CITATION : Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411

HEARING DATE(S) : 3 May 2010

JUDGMENT DATE : 6 May 2010

JURISDICTION : Equity

JUDGMENT OF : Biscoe AJ

DECISION : (1) Evidence inadmissible

CATCHWORDS : Evidence - statutory exceptions to hearsay rule in civil proceedings - whether person who made representation not available to give evidence about asserted fact - whether it would cause undue expense or undue delay or would not be reasonably practicable to call person who made the representation to give evidence - general statutory discretion to exclude evidence: whether probative value of evidence substantially outweighed by danger that it might be unfairly prejudicial to a party.

LEGISLATION CITED : Evidence Act 1995

CASES CITED : Puchalski v R [2007] NSWCCA 220 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 769

Gurdeep Singh (first plaintiff) Amarinder Singh (second plaintiff) PARTIES : Newridge Property Group Pty Ltd (first defendant) K S Gill property Group Pty Ltd (second defendant) Kulwant Singh (third defendant) Harjit Singh (fourth defendant)

FILE NUMBER(S) : SC 2007/00254282

COUNSEL : Mr C J Whitelaw (plaintiffs) Mr R Dubler SC with Mr B Zipser (defendants)

SOLICITORS : Macquarie Partnership (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BISCOE AJ

6 May 2010

2007/00254282 GURDEEP SINGH & ANOR v NEWRIDGE PROPERTY GROUP PTY LTD & ORS JUDGMENT 1 HIS HONOUR: This is a ruling on an objection to evidence. BACKGROUND

2 The plaintiffs, Gurdeep Singh and his former wife Amirinder Singh, sue to recover an alleged loan of $75,000 (plus interest) paid on 9 February 2004 to the first defendant, Newridge Property Group Pty Ltd (Newridge), allegedly guaranteed by the third and fourth defendants, Kulwant Singh and Harjit Singh. Alternative causes of action for recovery of this sum are pleaded. The second defendant is K S Gill Property Group Pty Ltd trading as United Real Estate (United). 3 The individual parties and most, if not all, witnesses are members of the Punjabi community in Sydney. 4 At all material times the defendants Kulwant and Harjit were directors and shareholders of Newridge, Kulwant was a director and shareholder of United, and Harjit was an employee of United. Until November 2003 the plaintiffs were directors of Newridge and one of the shareholders in Newridge was Fuguet & Singh Development and Construction Pty Ltd (Fuguet & Singh), a company owned by Irwin Fuguet and the plaintiff Gurdeep. 5 Newridge was the developer of a townhouses development at Hambledon Road, Quakers Hill (Hambledon Road project). Newridge retained Fuguet & Singh as the builder and project manager of the Hambledon Road project. 6 It appears that by November 2003 there were financial difficulties with the Hambledon Road project. The parties fell out. 7 The plaintiffs' case is based on a series of conversations between them and the individual defendants in November and December 2003 which they say led them to sell an investment property in Cairns through the agency of United and pay the net proceeds of $75,000 to the business account of Newridge. It is common ground that the payment was made. The defendants say that it was a payment of money owing by Fuguet & Singh to Newridge. 8 The agreement is not evidenced in writing and the matter essentially comes down to the competing versions of conversations. THE OBJECTION TO EVIDENCE