Capitalink Pty Ltd v Withnall [2023] NSWDC 461

District Court New South Wales

Medium Neutral Citation: Capitalink Pty Ltd v Withnall [2023] NSWDC 461 Hearing dates: On the papers Date of orders: 31 October 2023 Decision date: 31 October 2023 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraphs 48 - 49 Catchwords: CIVIL PROCEDURE – contested application for evidence of a witness who is interstate to give evidence by audio-visual link Legislation Cited: Civil Procedure Act 2005 (NSW), s 58 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 3(1), 7(1), 7 (2) Uniform Civil Procedure Rules 2005 (NSW), r 31.2(2), 31.3(3) Cases Cited: Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No.3) (2009) 181 FCR 152 Touma v Diocese of Saint Maron, Sydney [2020] NSWSC 1926 Xia v Santah Pty Ltd [2003] NSWSC 807 Zhang v Zhang [2022] NSWSC 924 Category: Procedural rulings Parties: Capitalink Pty Ltd (Plaintiff) Marc Douglas Withnall (Defendant) Representation: Solicitors: Centurion Lawyers Pty Ltd (Plaintiff) Macpherson Kelley Pty Ltd (Defendant) File Number(s): 2021/00357102 Publication restriction: Nil

REASONS FOR JUDGMENT

Background 1. This proceeding concerns a dispute about construction works for a property situated in Queensland. The property is owned by the plaintiff as a trustee. The arrangements for construction were governed by a deed. One of the entities to that deed was a company 'Development Delivery Construction' (DDC). The plaintiff complains that the works were not completed. Eventually, the plaintiff says it had to expense itself in completing the works. 2. DDC has since been deregistered and the plaintiff sues the defendant, Mr Whithnall, on a guarantee. The plaintiff says that the guarantee was repudiated or terminated. 3. Mr Whithnall disputes liability on various bases: first, that the deed was void for consideration; secondly, the guarantee was discharged or terminated in a way which released his obligations. A separate plea of failure to mitigate is also added. 4. On 20 October 2023, I received emails from the solicitors for the parties. The emails indicated that this dispute has been included in the Parramatta civil sittings for November 2023 that I will preside over. Specifically, it was pointed out that the hearing was listed to commence on 13 November 2023. 5. At the time these email messages were sent, I was sitting in the Court's criminal jurisdiction in Newcastle. The gist of the emails was that with the hearing imminent, the defendant informally indicated his wish that a witness in his case, Mr Brent Stevens, give his evidence at the hearing by audio visual link. Mr Stevens is a resident of Queensland. The plaintiff indicated its opposition to this informal application on that day. 6. With the agreement of the parties, given the imminence of the November sittings in Parramatta, I indicated that the Court was inclined to determine the dispute on the papers so long as the parties were agreeable to that course and agreed upon directions for the exchange of evidence and submissions they respectively relied upon for the application. 7. The defendant, who I will henceforth refer to as the applicant served an affidavit of Jeffrey Siddle, a Principal Lawyer of the firm Macpherson Kelley Pty Ltd, representing the applicant, sworn on 25 October 2023. 8. The plaintiff, who I will henceforth refer to as the respondent, served an affidavit of John Boustany, a solicitor employed by Centurion Lawyers Pty Ltd, representing the respondent, sworn on 27 October 2023. 9. Both parties prepared written submissions which I have taken into account.