Grace v Grace [2010] NSWSC 1526

New South Wales Supreme Court

CITATION : Grace v Grace [2010] NSWSC 1526

HEARING DATE(S) : 24 November 2010 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 24 November 2010

DECISION : Reject tender of document

CATCHWORDS : EVIDENCE – Hearsay – exceptions – business records – whether previous representation made in connection with a proceeding

LEGISLATION CITED : (NSW) Evidence Act 1995, s69

CATEGORY : Procedural and other rulings

David Alexander Grace (plaintiff) Deborah Sharon Grace (first defendant) Julienne Grace (second defendant) PARTIES : Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant) Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant) Dutchie Pty Ltd (sixth defendant) Phoenix Rising Investments Pty Ltd (seventh defendant)

FILE NUMBER(S) : SC 06/259566

COUNSEL : D Williams SC w S Goodman (plaintiff) A Moses SC w D Stewart (first, second & seventh defendants)

SOLICITORS : James Tuite & Associates (plaintiff) Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Wednesday, 24 November 2010

2006/259566 David Alexander Grace v Deborah Sharon Grace & Ors JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff tenders a file note, which I would infer was prepared by a solicitor in the office of Hunts Lawyers on 17 March 2008, of a telephone conversation with Dr Grace that day.

2 The document is tendered for the purpose of proving that Dr Grace made a number of statements, which it would no doubt be submitted, are inconsistent in some respects with her current evidence. In other words, the previous representation sought to be proved is the representation made by the author of the note that Dr Grace said certain things. That author not being called, that amounts to a hearsay purpose. The plaintiff supports the tender on the basis that the document is a business record for the purposes of (NSW) Evidence Act, s 69.