Category Archives: s. 166

Commonwealth of Australia v Davis Samuel Pty Ltd and Ors (No 7) [2013] ACTSC 146 (1 August 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/146.html

CORPORATIONS – Director – means of becoming – acting in position of – officer – decisions affecting corporation – maker of or participant in

EQUITY – Fiduciary duty – breach of – Barnes v Addy – receipt and assistance – liability for – third party – participatory liability – receipt liability – company – knowledge of – imputation to

EQUITY – Fiduciary duty – breach of – Barnes v Addy – remedies – In rem – In personam – constructive trust – imposition of – discretionary – occasion for – tracing – multiple fiduciary duty breaches – multiple claims

EQUITY – Breach of confidence – fundamental or operative mistake – ultra vires payment of public money

TRADE PRACTICES ACT – misleading and deceptive conduct

Giles Geoffrey Woodgate v Helen Margaret Fawcett [2008] NSWSC 786 (28 July 2008)

[2008] NSWSC 786

EVIDENCE – defendant served expert report on plaintiffs – plaintiffs requested certain documents and information referred to in the expert report pursuant to s 166 of the Evidence Act 1995 (NSW) – defendants did not comply with request and plaintiffs obtained order of the Court under s 169 that defendant was to comply with the requests – defendant sent letter explaining non-compliance – plaintiffs sought order under s 169(3) that the defendant’s expert report not be admitted into evidence – whether reasonable cause for non-compliance under s 169(4)(a) – whether Court had power to make order directing defendant to comply with request to identify author of a document – whether discretion to direct that the expert report not be admitted into evidence should be exercised

TRIMCOLL PTY LTD v DEPUTY COMMISSIONER OF TAXATION [2007] NSWCA 307 (30 October 2007)

[2007] NSWCA 307

EVIDENCE – request to call witnesses – Evidence Act] 1995 (NSW), s 167 – documents sought to be relied on as evidence of sham transactions – previous representation – authenticity, identity or admissibility of document or thing – operation of s 167(c) [Evidence Act not limited to exceptions to hearsay rule[
]EVIDENCE – reasonableness of request to call witnesses – reasonable refusal to comply with request to call witnesses – [Evidence Act] 1995 (NSW), s 169 – exercise of Court’s discretion to order party to comply with request to call witnesses
TAXATION – adequacy of pleadings – statement or averment in statement of claim prima facie evidence of matter averred – no reversal of legal burden of proof – Tax Administration Act 1953 (Cth) s 255-50
TAXATION – income tax – failure to make deductions from prescribed payments – liability of eligible paying authority – payees provided payee declarations varying prescribed payment deduction to nil – payees allegedly mere agents or conduits for third parties not entitled to deduction variation to whom payments were in fact due –[Income Tax Assessment Act] 1936 (Cth) s 221YHDA, s YHH(1)
WORDS & PHRASES – “authenticity” – “identity – “previous representation” – “representation”

LEGISLATION CITED:
Evidence Act 1995 (NSW), ss 59, 60, 69, 166, 167, 168, 169, Part 4.6

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 237 (26 March 2002)

[2002] NSWSC 237

EVIDENCE [53] – Admissibility and relevancy – Hearsay – Particular cases – Exclusion of hearsay rule – Statement by person not to be called as a witness tendered by a party – Whether another party (who is the person’s employer) may be required under s 169 of  Evidence Act 1995  to call the person as a witness.

Evidence Act 1995  Part 4.6 Div 1 ss 38, 59, 69, 166 – 169

NAB v Rusu [1999] NSWSC 539 (4 June 1999)

[1999] NSWSC 539

Practice and Procedure – commercial litigation – unrepresented parties – non-English speaking – proper advice and assistance from Court -

Evidence – tender of Business records by plaintiff bank – admissibility – Need to prove authenticity of records -  Evidence Act 1995 .

Evidence Act 1995  ss 48(1), 48(1)(6), 55(1), s 7(1), 59(1), 69(1), 69(2), 81(1) 142(1), 144(1) (6), 152, 166, 168 and 169.

Australian Petroleum Pty Ltd v Parnell Transport Industries Pty Ltd & Ors [1998] FCA 1580 (20 November 1998)

[1998] FCA 1580

EVIDENCE – documentary evidence – business records – exception to hearsay – effect provisions creating time limit for objections on admissibility of evidence – whether Pt 4.6 Div 1 of  Evidence Act 1995  (Cth) requires Court not to admit evidence for twenty-one days

Evidence Act 1995  (Cth), ss 26, 47-51, 55, 56, 59, 63, 64, 67, 69, 70-75, 135, 166, 167, 168, 169, 190