Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 922

Supreme Court New South Wales

Medium Neutral Citation: Eddie Michael Awad & anor v Twin Creek Properties Pty Ltd [2011] NSWSC 922 Hearing dates: 27/06/2011 Decision date: 27 June 2011 Jurisdiction: Equity Division Before: Brereton J Decision: Refuse to admit notices of valuation Catchwords: EVIDENCE - documents contain statement of land value by Valuer-General - (NSW) Evidence Act s 156 does not provide for admissibility of public documents - whether documents business records - business includes activity engaged in or carried on by the Crown in any of its capacities - document a business record falling within business records exception to the hearsay rule - whether if hearsay rule does not apply document containing opinions may be excluded by opinion rule - prevailing view that opinion rule applies to business records - document containing opinions based on specialised knowledge, training, study or experience admissible - general discretion to exclude evidence - Makita principles do not apply to render business records containing opinions inadmissible -circumstances include Valuer-General not available for cross-examination, plaintiffs to call other valuation evidence, defendant serves no valuation evidence, notice of valuation does not reveal rationale - evidence unfairly prejudicial to defendant and discretion exercised to exclude. Legislation Cited: (NSW) Evidence Act 1995, s 69, s 76, s 79, s 156, Dictionary Pt 2. (NSW) Valuation of Land Act 1916, s 14CC Cases Cited: Enviro Energy Australia Pty Ltd (in liq) [2010] NSWSC 1217 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. Re Australian Securities and Investments Commission v Rich, (2005) 216 ALR 320 Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933 Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2011] NSWSC 395 Young v Coupe [2004] NSWSC 546 Category: Procedural and other rulings Parties: Eddie Michael Awad (first plaintiff) Karen Elizabeth Awad (second plaintiff) Twin Creeks Properties Pty Ltd (defendant) Representation: Counsel: CJ Birch SC and DS Wienberger (plaintiffs) J Robson SC and D Healey (defendants) Solicitors: Thurlow Fisher Solicitors (plaintiff) Surry Partners Lawyers Pty Ltd (defendant) File Number(s): 2009/00291401