Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 Hearing dates: 29, 30 January 2018 Decision date: 26 February 2018 Before: Basten JA at [1]; Gleeson JA at [2]; Leeming JA at [3] Decision: 1. Appeal allowed. 2. Set aside the orders made on 6 November 2017 refusing to admit the documents which now comprise pages 1099-1110 of the Blue Book ("the Baycorp file notes"), orders 1-12 made on 6 December 2017, and order 2 made on 19 December 2017, and in lieu thereof, remit the proceedings for a retrial, that remitter to include the costs of the first trial. 3. Note that (a) the previous representations contained in the Baycorp file notes, insofar as they include representations as to the possibility of litigation and the offer by Ms Calleja to pay $60,000 to Baycorp from funds borrowed from Prime, fall within s 69(2) of the Evidence Act 1995 (NSW), and (b) the form of the written Loan Agreement executed by the parties is not in issue. 4. The respondents to pay the appellant's costs of the appeal, but to have a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: APPEAL - numerous grounds of appeal - primary grounds successful and retrial ordered - consideration of circumstances in which appellate court should address non-dispositive grounds of appeal

EVIDENCE - documents - business records exception to hearsay rule - inferences available from production of documents pursuant to subpoena - inferences available from form and context of documents - Evidence Act 1995 (NSW) ss 47, 48, 51, 69, 183 - National Australia Bank Ltd v Rusu (1997) 47 NSWLR 309; [1999] NSWSC 539 considered - discretionary rejection of documents pursuant to Evidence Act s 135 - requirement to assess probative value as well as risk of unfair prejudice - requirement to determine whether former was substantially outweighed by latter - decision of primary judge to reject tender of documents produced on subpoena set aside Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB, 12CC Civil Procedure Act 2005 (NSW), s 56 Contracts Review Act 1980 (NSW), s 9 Evidence Act 1898 (NSW), s 14CL Evidence Act 1995 (NSW), ss 47, 48, 51, 59, 69, 135, 136, 142, 146-163, 169, 183 Real Property Act 1900 (NSW), s 57 Cases Cited: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Australian Competition and Consumer Commission v Air New Zealand (No 1) (2012) 207 FCR 448; [2012] FCA 1355 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181; [2015] FCA 342 Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) (2011) 244 CLR 1; [2011] HCA 18 Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218 ALR 764 Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122 Bobolas v Waverley Council (No 4) [2015] NSWCA 337 Byrne v Javelin Asset Management Pty Ltd [2016] VSCA 214 Commissioner of Taxation v Rozman (2010) 186 FCR 1; [2010] FCA 324 Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Hatziandoniou v Ruddy (No 2) [2015] NSWCA 277 James Hardie Industries NV v Australian Securities and Investments Commission [2009] NSWCA 18 Krnjulac v Lincu [2015] NSWCA 367 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303 Lin v Tasmania [2012] TASCCA 9 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309; [1999] NSWSC 539 Panayi v Deputy Commissioner of Taxation [2017] NSWCA 93 R v Giovannone [2002] NSWCCA 323 Re Wollongong Coal Ltd (formerly known as Gujarat NRE Coking Coal Ltd) [2014] NSWSC 1952 Rickard Constructions v Rickard Hails Moretti [2004] NSWSC 984 Sydney Attractions Group Pty Ltd v Frederick Schulman [2013] NSWSC 858 Visa International Service Association v Reserve Bank of Australia (2003) 131 FCR 300; [2003] FCA 977 Texts Cited: V Bell, "Documentary Evidence under the Evidence Act 1995 (NSW)" (2000) 5 The Judicial Review 1 J D Heydon, Cross on Evidence (LexisNexis Butterworths Australia, 11th ed 2017) N Williams et al, Uniform Evidence in Australia (LexisNexis Butterworths Australia, 2015) P Wood "The Admissibility of Business Records with Special Reference to New South Wales" (1986) 14 Australian Business Law Review 245 Category: Principal judgment Parties: Capital Securities XV Pty Ltd (Appellant) Elizabeth Ann Calleja (First Respondent) Calleja PJC Furniture Freighters Pty Ltd (Second Respondent) Representation: Counsel: M Young SC (Appellant) N Obrart (Respondents)