Collopy v Commonwealth Bank of Australia

[2019] WASCA 97

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Banking and Finance
2. › Loan agreements
3. › Proof of advances
4. › Whether bank established that funds were advanced pursuant to loan agreements
5. › Certification clauses in mortgage and guarantee
6. › Effect of prima facie evidence certificate on onus of proof
1. Evidence
2. › Documentary evidence
3. › Business records
4. › Electronic records
5. › Screenshots derived from electronic banking system
6. › Whether admissible under business records exception
7. › Whether document prepared for litigation can be 'derived from' a business record
8. › Evidence Act 1906 (WA), s 79C(2a)
1. Practice and Procedure
2. › Pleadings
3. › Particulars
4. › Whether response to request for particulars constitutes admission
5. › Whether inability to provide particulars precludes leading evidence at trial

Quick Take

A document prepared for litigation that reproduces or is derived from electronic business records is admissible under s 79C(2a) of the Evidence Act 1906 (WA), even though the document itself is not a business record. There is no requirement under s 79C to produce the underlying electronic data or to call all persons involved in extracting the data. Contractual certification clauses in mortgages and guarantees that make a bank's certificate 'sufficient evidence' of amounts owing shift the onus to the borrower to prove the certificate incorrect, and the bank need not prove the date and amount of each individual advance. A response to a request for particulars stating inability to provide details does not constitute an admission requiring leave to withdraw.