Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2005] NSWSC 1059

New South Wales Supreme Court

CITATION : Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2005] NSWSC 1059

HEARING DATE(S) : 12 October 2005

JUDGMENT DATE : 12 October 2005

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Tender of bundle of documents on issue of form of orders rejected.

CATCHWORDS : EVIDENCE [24] - Admissibility and relevancy - Facts relevant to facts in issue - In general - Facts of too slight a relevance to assist Court.

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2004] NSWSC 1238 CASES CITED : Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2005] NSWSC 264

3081/97 Peter Lawrence Lewis (P) Lamru Pty Ltd (Applicant) Kation Pty Ltd (Respondent) Brian Raymond Silvia (Liquidator) PARTIES : 1750/02 Lamru Pty Limited (P) Kation Pty Limited (D1) Peter Lawrence Lewis (D2) Mark Lewis (D3) Nortex Pty Ltd (In Liq) (D4)

FILE NUMBER(S) : SC 3081/97; 1750/02

N A Cotman SC and J T Johnson (P L Lewis & Kation P/L) COUNSEL : S J Motbey (Lamru P/L) V R W Gray (Liquidator & Nortex P/L)

Kemp Strang (P L Lewis & Kation P/L) Lyons & Lyons (Lamru P/L) SOLICITORS : Abbott Tout (Liquidator & Nortex P/L)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

WEDNESDAY, 12 OCTOBER 2005

3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (In Liq) 1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED & ORS JUDGMENT 1 HIS HONOUR: A bundle of documents is tendered. They include a notice of motion that is on record in proceedings 3081 of 1997. Although it was not before me on the trial, tender is unnecessary in the sense in that it is of record in the Court. Despite that, if I admit these documents I think it useful to include a copy of that notice of motion in the exhibit for ease of reference. The other documents included in the tendered bundle are an affidavit of Jason Frost sworn 2 June 2000, which was read in part only in the proceedings before me, an affidavit of David Leihy sworn 18 May 2000 and an affidavit of Brian Raymond Silvia sworn 17 October 2001, both of which were not read at all on the trial before me. 2 It is said that, in relation to the issue of the orders that should be made consequential upon my findings as to the Mark Lewis bonus payments, there is material in these affidavits which would show difficulties which the liquidator may be under if orders are made which incorporate a provision for an inquiry, formal or informal, as to the true worth of Mark Lewis' services to the company in the 1995 to 1997 years, over and above what he was actually paid during those years (otherwise than by way of the contested bonus payments). 3 Mr Gray, of counsel for the liquidator, at my request has elucidated the general nature of this material. In my view, bearing in mind that elucidation, I do not think that the material will be of use to me in coming to a conclusion about those orders. That does not mean that I cannot hear submissions from Mr Gray about the liquidator's difficulties in engaging in such an inquiry at this point of time, particularly difficulties which may arise from the fact that the estate which he is administering is now impecunious, whereas there may have been funds available for the investigation (otherwise than out of Mr Silvia's personal pocket) at an earlier point of time. 4 Furthermore, the reading or tender of this affidavit material may well be relevant to the question of costs, on which the evidence is still undoubtedly open. However, I think it better that, if it is going to be tendered on that issue, it not be tendered at this point, where what I am considering is the form of the orders. 5 For the foregoing reasons, the tender at the present time is rejected, but without prejudice to the liquidator's right to lead the evidence, so far as relevant, on the costs argument. The bundle will be marked for identification 104 and returned to Mr Gray.