Keshvara v Blanchett

• Jurisdiction: New Zealand
• Judge: Elias CJ,McGrath,Glazebrook JJ
• Judgment Date: 21 March 2013
• Neutral Citation: [2013] NZSC 23
• Docket Number: SC 1/2013
• Court: Supreme Court
• Date: 21 March 2013

Between

Ranjit Keshvara

Applicant

and

David Murray Blanchett and Grant Edward Burns as Liquidators of Apg Holdings Ltd (In Liquidation)

Respondent

[2013] NZSC 23

Court:

Elias CJ, McGrath and Glazebrook JJ

SC 1/2013

IN THE SUPREME COURT OF NEW ZEALAND

Application for leave to appeal admission of hearsay evidence in business records under exceptions in s19(1)(b) Evidence Act 2006 (“EA”) (admissible if no useful purpose in requiring person who prepared them to be a witness) and s19(1)(c) EA (undue expense or delay to require person to be a witness) — records had been prepared by former employee some years earlier — Court of Appeal said that the identity of the person who supplied information used for the compilation of the record did not need to be precisely demonstrated as a pre-requisite to admissibility — whether Court of Appeal's upholding of decision conflicted with Fiefia v Department of Labour which held that there had to be sufficient evidence regarding the circumstances in which the record had been supplied.

Counsel:

L Herzog for Applicant

M D Branch and S J Rawcliffe for Respondent

JUDGMENT OF THE COURT

• A The application for leave to appeal is dismissed.

• B The applicant is to pay to the respondents costs of $2,500 plus all reasonable disbursements to be fixed if necessary by the Registrar.

REASONS

1 The respondents are the liquidators of APG Holdings Ltd. In the High Court they claimed that Mr Keshvara had breached his duties as a director of APG. This claim was successful. 1

2 In support of the claim, the liquidators produced a bundle of documents relating to the affairs of APG while Mr Keshvara was a director. At the beginning of the High Court hearing, objection was made to the admission of these documents. Venning J held that, while the documents referred to by Mr Blanchett contained

hearsay statements, they were admissible as business records under s 19 of the Evidence Act 2006

3 Venning J held that the person most likely to have produced the documents was Mr Antoo, a former employee of the company. Given that seven years had passed since the time of the creation of the records, the Judge considered that Mr Antoo could not reasonably be expected to recollect the matters dealt with in the documents. Accordingly s 19(1)(b) of the Evidence Act applied, as no useful purpose would be served by requiring Mr Antoo to be a witness. 2 Venning J also noted that, as the objection to the documentary evidence was raised at a very late stage, 3 it would have been necessary to adjourn the trial to enable Mr Antoo to be located. He found that undue expense and delay would have been caused and thus that s 19(1)(c) also applied. 4

4 On appeal, the Court of Appeal upheld Venning J's decision. 5 The Court said that it was not necessary in the circumstances of this case for the liquidators to seek to call more detailed or specific evidence directed at proof of the statutory requirements of s 19. The Court did not accept Mr Keshvara's submission that the identity of the person or persons who supplied information...