In the matter of OTS (Australia) Pty Ltd [2017] NSWSC 1471

Supreme Court New South Wales

Medium Neutral Citation: In the matter of OTS (Australia) Pty Ltd [2017] NSWSC 1471 Hearing dates: 30 January 2017 Decision date: 30 January 2017 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Application for leave for plaintiff to adduce oral evidence in supplementation of paragraph 24(c) of his affidavit rejected Catchwords: PROCEDURE – evidence – application for leave – where evidence only relevant on case not so far advanced. Category: Procedural and other rulings Parties: Cameron Marketing (Australia) Pty Ltd (plaintiff) OTS (Australia) Pty Ltd (first defendant) MLAN Computer Solutions (Aust.) Pty Limited (second defendant) Mark Raymond Liddle (third defendant) Anthony Andrew Nadalini (fourth defendant) Representation: Counsel: M Hall SC (plaintiff) D Stack (defendants)

Solicitors: Atkinson Vinden (plaintiff) ERA Legal (defendants) File Number(s): 2015/00275597

Judgment 1. The plaintiff seeks leave to adduce oral evidence in supplementation of paragraph 24(c) of his affidavit sworn 22 April 2016, which has been rejected on grounds of form as well as relevance, for the purpose of seeking to found an argument that the New Zealand entity represents a use by the defendants, to the exclusion of the plaintiff of a corporate opportunity that should have belonged to the first defendant OTS. 2. The Court has already, by consent, made a declaration that the affairs of OTS have been conducted in a manner oppressive of the plaintiff, and the case has proceeded since then essentially over what form of relief should be granted and, if that relief be a compulsory purchase order, what the price should be. 3. The matter proceeded in that respect first by the appointment of a parties' single expert who adopted primarily a revenue-based approach to the valuation, and, since, by the adducing, with the leave of the Court, of an alternative valuation on the part of the defendants. 4. As I read their reports, neither valuer has contended that the New Zealand entity should be treated for valuation purposes as an asset of the first defendant. Each of them has dealt, albeit in different ways, with the revenue that is generated from the New Zealand enterprise. 5. An allegation that the establishment of the New Zealand entity was a misuse of a corporate opportunity is a serious one and I do not think it is appropriate to allow additional evidence to be adduced at this stage for the purposes of illuminating that issue. If it can be advanced on material that is otherwise in evidence, then as the case is not being conducted on pleadings, it may well be that it can be advanced. But, in my view, it would be inappropriate to permit at this late hour supplementary oral evidence to be adduced to found it. 6. I reject the application for leave.