In the matter of Sunnyside Bettoni Pty Ltd

[2020] NSWSC 1891

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Sunnyside Bettoni Pty Ltd [2020] NSWSC 1891

Hearing dates:

18 December 2020

Decision date:

18 December 2020

Jurisdiction:

Equity - Corporations List

Before:

Leeming JA

Decision:

Refuse leave to cross-examine Mr Carelli.

Catchwords:

PROCEDURE – cross-examination – respondent to application for costs reads affidavit – application for cross-examination – possibility of prosecution for contempt arising out of matters to be the subject of cross-examination – application refused.

Cases Cited:

DuroFelguera Australia Pty Ltd v Samsung C&T Corporation [2015] WASC 484

Garrett-Jones v Kendall [2020] ACTCA 27

Ren v Jiang [2014] NSWCA 1

Category:

Procedural and other rulings

Parties:

Dario Bettoni (Plaintiff)
Sunnyside Bettoni Pty Ltd (1st defendant)
Marco Domenico Carelli (2nd defendant)

Representation:

Counsel:
A Di Francesco (Plaintiff)
J Atkin (Defendants)

Solicitors:
Hegarty Legal (Plaintiff)
J A Buda & Associates (Defendants)

File Number(s):

2020/00047651

EX TEMPORE Judgment

1. HIS HONOUR: Application is made by the plaintiff, who is the moving party in the hearing today the only subject of which is the plaintiff’s application for costs in relation to proceedings where the entirety of the substantive relief sought (the production of documents being books and records of the company) has been resolved by compromise, to cross-examine the defendant, who is the plaintiff’s fellow director and shareholder. That application is opposed.

2. Counsel have advised that they are unaware of any decision comparable to the present in which cross-examination has been permitted. To be fair, counsel have stated that they had not sought to research the point. I too am unaware of any decision.

3. It is plain, and I think common ground at the bar table, that cross-examination in any interlocutory application is available, but not as of right, only as a matter of discretion. Further, it was not disputed that the discretion will be exercised “sparingly” (to quote Le Miere J in Duro Felguera Australia Pty Ltd v Samsung C&T Corporation [2015] WASC 484 at [39] and Mossop J in Garrett-Jones v Kendall [2020] ACTCA 27 at [29]). It is not necessary to consider in any detail the principles applicable to the cross-examination of deponents in interlocutory proceedings, some of which are considered in Ren v Jiang [2014] NSWCA 1 at [11]-[12]. The present application is far from being a strong candidate for permitting cross-examination.

4. Some interlocutory applications (including applications for leave to extend time or for interlocutory injunctions) have the effect of determining the substantive relief sought in the proceedings. This interlocutory application is at the other end of the spectrum. It concerns costs, and nothing other than costs.

5. Counsel for the plaintiff has candidly and properly acknowledged what is plain on the face of his submissions which is to the effect that central to the proposed cross-examination is whether the defendant has complied with the orders obtained by consent. Indeed I have been told and I accept that a raft of subpoenas was issued months after the last order was obtained with a view to investigating whether or not to prosecute Mr Carelli the second defendant for contempt. When I raised this matter, counsel for the plaintiff, after taking instructions, acknowledged – in my view entirely properly – that his instructions did not permit him to renounce the possibility that there would be in the future a change of heart and a Statement of Charge would be filed against Mr Carelli.

6. It is not necessary to address the more general proposition about the sparing exercise of the discretion to permit cross-examination generally, or even more specifically when the only issue is costs. The considerations I have just mentioned compel the conclusion on this application.

7. The only issue is whether I should depart from the ordinary rule in cases where all substantive relief has been resolved by consent, which is that there be no order as to costs. The circumstances outlined above strike me as giving rise to the clearest of cases where I should not permit cross-examination of Mr Carelli. Putting to one side everything else, it would be quite wrong to permit that to occur in aid of an application for costs in circumstances where there is the prospect of a prosecution of contempt arising out of precisely the same issues which are sought to be cross-examined.

8. Mr Carelli has made himself available by AVL link (he lives in Forbes in regional New South Wales) today against the possibility that the application for cross-examination might succeed. However, it is accepted that it is necessary to obtain leave to do so. I do not propose to grant leave.

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