Short & Anor. v. Crawley & Ors. [2001] NSWSC 228

New South Wales Supreme Court

CITATION : Short & Anor. v. Crawley & Ors. [2001] NSWSC 228 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2824/98 HEARING DATE(S) : 27/03/01 JUDGMENT DATE : 27 March 2001

Warwick Short - 1st plaintiff Nabatu Pty. Ltd. - 2nd plaintiff Christopher Crawley - 1st defendant PARTIES : Marisco Holdings Pty. Ltd. - 2nd defendant J & J O'Brien Pty. Ltd. - 3rd defendant Vensel Pty. Ltd. - 4th defendant Trudale Pty. Ltd. - 5th defendant Judith Kiralyhidi Crawley - 6th defendant JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Mr. M. Cashion SC with Mr. Thawley for plaintiffs Mr. C. Stevens QC with Mr. P. Dodson for defendants SOLICITORS : Kemp Strang, Sydney for plaintiffs Blake Dawson Waldron, Sydney for defendants CATCHWORDS : PROCEDURE - Interlocutory application - Direction that affidavits be served - Party tenders affidavit as an exhibit - Whether prior notification or service required. DECISION : See end of judgment

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Tuesday 27th March 2000

NO. 2824 OF 1998 SHORT & ANOR. V. CRAWLEY & ORS.

JUDGMENT

1 I am dealing with an application under s.237 of the Corporations Law. 2 In support of the application, the applicants have tendered as exhibits two very substantial affidavits which have been filed for the purposes of the substantive hearing of the proceedings, and very substantial exhibits to those affidavits. That tender is objected to, primarily on the ground that no notice was given that this course was to be taken. Mr. Stevens QC for the defendants/respondents says that, having regard to directions that were given, and correspondence between the parties, he took it that the evidence to be relied on by the applicants was contained in the affidavit that was served, and he has given no consideration whatsoever to the very extensive material which is now tendered. He also foreshadows a submission that the tender should not be permitted unless the deponents are made available for cross-examination. 3 It is not appropriate to deal with that second aspect now. Mr. Stevens is not in a position to support any submission that it would be unfairly prejudicial within s.135 of the Evidence Act to permit this material to be tendered without cross-examination. Having regard to the issues which are raised on a s.237 application, there may well be very strong reasons for taking the view that it would not be unfairly prejudicial to permit this material to be introduced in this way without cross-examination. However, that is for another occasion. 4 As I understand it, there are no rules of court that specifically require notice to be given of documents to be tendered in support of an application like this. Certainly affidavits have to be served a reasonable time before they are read, and on 20th March 2001, I gave a direction that the plaintiffs serve, by 22nd March 2001, any affidavit in support of their motion, and also a short additional statement of the grounds on which the relief is sought. The statement of grounds which was served in compliance with that direction did not indicate that reliance was going to be placed on the material that is now tendered. 5 In my opinion, it would be unfair to the defendants to hear and determine the matter today on the basis of this material that is now tendered. I think it was reasonable for the defendants to take the view, in the circumstances I have outlined, that the very substantial material which is now tendered was not going to be relied on, in circumstances where there was no suggestion from the applicants that this course was to be taken. 6 For that reason, I do propose to adjourn the application under s.237, and to give a direction that makes it entirely clear that notice is to be given of all material to be relied on in support of the application. 7 Mr. Stevens has submitted that the defendants' costs should be paid on an indemnity basis. At present, it is not completely clear as to whether costs will indeed be thrown away. It may be that, had the applicants given clear notice by 22nd March 2001 that this material was to be relied on, the matter could not have been heard and determined within the time available today in any event. As I have stated, at present it is not entirely clear to me that the applicants were in breach of any specific rule or direction. On the other hand, I do think that, when the applicants were going to rely on this very extensive material at the hearing of the application, then, as a matter of fairness and proper practice with a view of just, quick and cheap disposal of proceedings, the intention to do so should have been notified either by exhibiting the material to Mr. Calabria's affidavit, or at least by adverting to it in the outline of submissions. 8 My present view therefore is that the applicants should bear any costs thrown away, although I do not think a ground is made out for this to be on an indemnity basis. 9 I do not propose to make an order for costs immediately, because it may turn out that there have really been no costs thrown away, having regard to the time that would be taken in any event in determining the s.237 application. 10 For those reasons, I propose to adjourn the s.237 application, but to proceed hearing the other matters set down for today. 11 I think the best course is to direct that the applicants give notice of material that they wish to rely on in support of their application within a time that I will limit; that the respondents do likewise within a further time; and then I bring the matter back for mention before fixing a time for hearing it. At present, it is not clear whether the matter could be determined in one day, or perhaps two or three. 12 I direct that on or before 10th April 2001 the plaintiffs provide the defendants with a full statement of all material to be relied on in support of the s.237 application, including all additional affidavits to be relied on and identification of all documents to be relied on, a draft of additional paragraphs for the Statement of Claim relating to alleged undue influence to particular transactions said to be affected by undue influence, with full particulars as to the basis on which it is said that the presumption undue influence applies to those transactions. 13 I direct that on or before 27 April 2001 the defendants provide the plaintiffs with all material to be relied on by the defendants in relation to the s.237 application. 14 I stand the matter over to 1st May 2001 at 9.30am before me for further mention. 15 I reserve my decision on the other aspects argued today. **********