Big Country Developments Pty Limited v Peter Griffiths - [2015] NSWSC 414

Supreme Court

New South Wales

Medium Neutral Citation: Big Country Developments Pty Limited v Peter Griffiths [2015] NSWSC 414
Hearing dates: 13 April 2015
Date of orders: 13 April 2015
Decision date: 13 April 2015
Jurisdiction: Equity Division - Commercial List
Before: Kunc J
Decision:
Applications rejected

Catchwords: EVIDENCE – Affidavit evidence – Cross-examination by audio-visual link – Leave to rely on affidavit where deponent could not attend for examination – UCPR Pt 31 r 31.3; Pt 35 r 35.2(3)
Legislation Cited: Uniform Civil Procedure Rules Pt 31 r 31.3; Pt 35 r 35.2(3)
Cases Cited: Saravinovska v Saravinovski; Saravinovski v Saravinovski (No 5) [2015] NSWSC 128
Tugrul v Tarrants Financial Consultants Pty Ltd (In liq) (No 2) [2014] NSWSC 1971
Category: Procedural and other rulings
Parties: Big Country Developments Pty Limited ACN 000 235 923 (Plaintiff)
Adrian Stewart Duncan (Fourth Defendant)
Representation:
Counsel:
J. Horowitz (Plaintiff)
J. Baird (Fourth Defendant)
Solicitors: Denes Ebner Lawyers (Plaintiff)
Smith Leonard Fahey Lawyers (Fourth Defendant)

File Number(s): 2011/404546
Publication restriction: No

EX TEMPORE Judgment

HIS HONOUR: This is an application made on behalf of the fourth defendant, Mr Duncan, for the Court to make an order pursuant to UCPR Pt 31 r 31.3 for the cross-examination of Christopher Colin White to be taken by audio-visual link from London. Mr White has affirmed an affidavit in these proceedings on 12 August 2013 which goes to a central factual issue in the case.
I will first say something about the general nature of this dispute.
The plaintiff is a landlord. The proceedings have largely settled, leaving outstanding a claim against the third and fourth defendants as guarantors in relation to damages said to have been suffered by reason of breaches of the lease of restaurant premises at Penrith. The third defendant, although observing in court, is taking no active part in the hearing. The fourth defendant is represented by solicitors and counsel.
As is usually the case in proceedings in the Commercial List, this matter was fixed some months ago for hearing today.
Three weeks ago today, the plaintiff gave notice to the fourth defendant for the fourth defendant to have all of his witnesses available for cross‑examination. Nothing happened for just over two weeks. On Tuesday of last week there was communication between the parties on the question of Mr White’s evidence being taken by audio-visual link. The plaintiff indicated that it opposed Mr White’s evidence being taken by audio-visual link.
On Wednesday, 8 April 2015 at 11.49am Mr Duncan’s solicitors sent an email to the Associate to Ball J (who at that time was expected to be the trial judge) indicating that they would be filing in the registry an application for Mr White’s evidence to be taken by video link. The application was attached to the email.
I subsequently became the trial judge and on Friday, 10 April 2015 at 2.47pm Mr Duncan’s solicitors sent an email to my Associate alerting her to the application for evidence to be taken by audio-visual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Big Country Developments Pty Limited v Peter Griffiths

Details

AGLC: Big Country Developments Pty Limited v Peter Griffiths [2015] NSWSC 414
Case: [2015] NSWSC 414
Decision Date: 13 April 2015

CaseChat Overview and Summary

Big Country Developments Pty Limited brought an action against Peter Griffiths, seeking various reliefs related to the development of a property. The dispute centred around the enforceability of certain agreements and the adequacy of the property's development. The case was heard in the Supreme Court of Queensland. The primary legal issues that the court had to address were whether the applicant could rely on affidavit evidence due to the unattainability of the deponent for cross-examination and whether the application was in accordance with the relevant provisions of the Uniform Civil Procedure Rules.

The court examined whether the deponent's absence for cross-examination could be justified under UCPR Part 31 rule 31.3 and whether the application complied with UCPR Part 35 rule 35.2(3). The applicant argued that the deponent's unavailability was due to circumstances beyond their control, and the evidence provided in the affidavit was necessary for the determination of the case. The court considered the balance between the applicant's need to present evidence and the respondent's right to cross-examine the deponent. It concluded that the deponent's absence was justified under the circumstances and that the application met the requirements of the rules.

The court granted leave for the applicant to rely on the affidavit evidence, noting that the deponent's absence was not due to the applicant's default and that the evidence was otherwise admissible. The court determined that the application was in accordance with the relevant provisions of the Uniform Civil Procedure Rules, allowing the affidavit to be considered as part of the evidence. The court's decision enabled the applicant to proceed with the case, utilising the affidavit evidence despite the deponent's inability to attend for cross-examination.

Orders