In the matter of Mulberry Capital Management Pty Ltd v Shen – AVL Application [2022] NSWSC 1023

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Mulberry Capital Management Pty Ltd v Shen – AVL Application [2022] NSWSC 1023 Hearing dates: 22 July 2022 Decision date: 29 July 2022 Jurisdiction: Equity - Corporations List Before: Hammerschlag CJ in Eq Decision: Direction for witnesses to give evidence by audio visual link Catchwords: PRACTICE AND PROCEDURE – Evidence (Audio and Visual Links) Act 1998 (NSW), s 5B – contested application for witness to give evidence by audio visual link (AVL) from Beijing, China – where witness will give evidence through a translator – where witness claims an inability to travel to Australia because he is not permitted to do so as he is assisting government authorities in an investigation – where witness does not wish to travel to Australia because of the risks posed by COVID-19 – where defendant opposes AVL evidence on the basis that it will be unfair to him because credit is in issue, the allegations are serious and he is an individual, a translator will be used, and there is increased risk of a protracted hearing due to technical difficulties – where the Court is not satisfied that making the order for AVL evidence will be unfair to the defendant in all the circumstances, including where the Court imposes specific conditions including giving the defendant the election to have his evidence taken remotely as well – exercise of discretion – where the Court considers the witness' claimed inability to travel to Australia not made out, but considers that credence should be given to COVID-19-related travel concerns – HELD – order for AVL evidence made – orders a NSW legal practitioner to be present with witnesses and translators to be present in Court – plaintiffs to arrange facilities and bear costs, to become costs in the cause – Court may revoke orders if necessary Legislation Cited: Evidence (Audio and Visual Links) Act 1998 (NSW) Cases Cited: Antov v Bokan (No 2) (2019) 101 NSWLR 142 Category: Procedural rulings Parties: Mulberry Capital Management Pty Ltd - First Plaintiff Wealth Resources Pty Ltd - Second Plaintiff Wealth Mining Pty Ltd - Third Plaintiff Northshore Investment (HK) Ltd - Fourth Plaintiff Peng Shen - Defendant Representation: Counsel: B Katekar SC with S Gaussen - Plaintiffs A Munro - Defendant