Azmin Firoz Daya v CX Reinsurance Company Limited [2012] NSWSC 1616

Supreme Court New South Wales

Medium Neutral Citation: Azmin Firoz Daya v CX Reinsurance Company Limited [2012] NSWSC 1616 Hearing dates: 24 October 2012 Decision date: 24 October 2012 Jurisdiction: Equity Division - Corporations List Before: Brereton J Decision: Rulings on objections to evidence Catchwords: EVIDENCE - objections to evidence - relevance - Evidence Act, s 55 - plaintiff seeks indemnity under policy of insurance -defendant seeks to avoid policy on ground of material non-disclosure - defendant seeks to tender audio recordings of conversations between corporate officers - whether material could rationally affect the existence of the probability that the plaintiff was aware of certain facts

EVIDENCE - objections to evidence - provisional relevance - Evidence Act, s 57

EVIDENCE - objections to evidence - authenticity and provenance - where defendant proposes to adduce transcripts of audio recording of teleconferences - Evidence Act, s 48(1)(c) - where what is being tendered is not the transcript but the audio recording as proved by the tender of the transcript - where prima facie the audio recording is likely to be a business record of at least one of the parties to the teleconference

EVIDENCE - objections to evidence - s 135 - whether evidence more probative than prejudicial Legislation Cited: (Cth) Insurance Contracts Act 1984, s 28(2), s 28(3) (NSW) Evidence Act 2005, s 48(1)(c), s 55(1), s 57(2), s 69(3) Cases Cited: Ingot Capital Investments v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124; (2007) 63 ACSR 1 Ingot Capital Investments v Macquarie Equity Capital Markets [2008] NSWCA 206; (2008) 73 NSWLR 653; (2008) 68 ACSR 595 Category: Interlocutory applications Parties: Azmin Firoz Daya - Plaintiff CX Reinsurance Company Limited - First Defendant Eagle Star Reinsurance Company - Second Defendant Aviva Insurance Limited - Third Defendant Certain Underwriters at Lloyd's - Fourth Defendant Royal & Sun Alliance plc - Fifth Defendant International Insurance Company of Hannover Ltd - Sixth Defendant Representation: Mr J Williams - Plaintiff Mr J Sexton SC and Mr E Muston - First to Sixth Defendants Sparke Helmore - Plaintiff HWL Ebsworth - First to Sixth Defendants File Number(s): 2004/175282