Keshvara v Blanchett

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,McGrath,Glazebrook JJ
Judgment Date21 March 2013
Neutral Citation[2013] NZSC 23
Date21 March 2013
Docket NumberSC 1/2013

[2013] NZSC 23

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath and Glazebrook JJ

SC 1/2013

Between
Ranjit Keshvara
Applicant
and
David Murray Blanchett and Grant Edward Burns as Liquidators of Apg Holdings Ltd (In Liquidation)
Respondent
Counsel:

L Herzog for Applicant

M D Branch and S J Rawcliffe for Respondent

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.

Held: The decision in Fiefia was made in a different statutory context and at a time when hearsay evidence was generally not admissible, subject to certain exceptions. The situation under the Evidence Act 2006 relating to hearsay was very different. More importantly, the type of evidence and the factual context in Fiefia was different. In the present case, the HC was dealing with relatively routine financial transactions with a long time-gap. The inference establishing the condition for admissibility by the HC under s19(1)(b) and s19(1)(c) were conclusions of fact arrived at because of the circumstances of the particular case. The HC's conclusion was upheld by the CA. No question of general or public importance arose.

Application for leave to appeal declined.

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,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT