Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 (07 May 2021) (Basten JA at [1]; Gleeson JA at [36]; Brereton JA at [37])


Catchwords:


BUILDING AND CONSTRUCTION – payment claim by builder – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – claim paid by principal – principal liable to unpaid subcontractors – Contracts Debts Act 1997 (NSW), s 5 – proceedings against builder for moneys paid by principal directly to subcontractors

EVIDENCE – admissibility – hearsay – exceptions – business records – where business records of subcontractor tendered to prove unpaid debt – whether authenticity of document may be determined on the basis of inferences drawn from its form, contents or source – whether production on subpoena necessary – provenance and accuracy of the documents not challenged

EVIDENCE – admissibility – business records –records of a party – whether records of third party warrant discretionary exclusion – whether weight sufficient to establish deceit

TORTS – deceit – misleading and deceptive conduct – false statutory declaration in support of payment claim – statement by builder that all subcontractors paid – statement known to be false – claim paid by principal – principal liable to unpaid subcontractors – loss suffered – payments to subcontractors recovered