HP Mercantile Pty Ltd v Clements [2014] NSWSC 290

Supreme Court New South Wales

Medium Neutral Citation: HP Mercantile Pty Ltd v Clements [2014] NSWSC 290 Hearing dates: 12, 14 March 2014 Decision date: 19 March 2014 Jurisdiction: Equity Division - Corporations List Before: Black J Decision: Relevant paragraphs of affidavit admitted subject to limitation. Memorandum contained in relevant exhibits of affidavit admitted. Remaining documents contained in relevant exhibits of affidavit and referred to in memorandum admitted subject to limitation. Catchwords: EVIDENCE - admissibility and relevancy - hearsay - whether relevant documents are admissible as business records under Evidence Act 1995 (NSW) s 69 - where identity of author of relevant documents is unknown - whether relevant documents contained previous representations made or recorded in the course of, or for the purposes of, relevant business - whether relevant representations were made by a person who had or might reasonably be supposed to have had knowledge of the asserted facts, or on the basis of information directly or indirectly supplied by such a person. EVIDENCE - admissibility and relevancy - whether relevant documents should be excluded under s 135 on the basis that documents are unfairly prejudicial or misleading. EVIDENCE - admissibility and relevancy - application to seek direction that relevant evidence is not to be admitted under Evidence Act 1995 (NSW) s 169 - where party had failed to comply with request to call witness - whether plaintiff's refusal to comply with request made without reasonable cause. Legislation Cited: - Evidence Act 1995 (NSW) ss 69, 69(1)(a)(i), 69(1)(b), 69(2), 135, 136, 167, 169(1)(c), 169(4), 169(5), 183 Cases Cited: - HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 - Rickard Constructions v Rickard Hales Moretti [2004] NSWSC 984 Category: Interlocutory applications Parties: HP Mercantile Pty Ltd (Plaintiff) Phillip Clements (Defendant) Representation: Counsel: P M Knowles (Plaintiff) C R C Newlinds SC/A d'Arville (Defendant) Solicitors: Versace McKenzie Lawyers (Plaintiff) Legal & Commercial Solutions (Defendant) File Number(s): 2009/289202