Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd

[2003] NSWSC 1047

CITATION:	Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2003] NSWSC 1047
HEARING DATE(S):	11 November 2003
JUDGMENT DATE:	11 November 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Application to set aside subpoena to give evidence refused.
CATCHWORDS:	PROCEDURE [111] - Procedure under Supreme Court Rules - Evidence - Subpoenas - To witness - Witness liquidator of company - Company and liquidator parties to proceedings - Liquidator out of funds - Cross examination to take three days - Tender of $100 conduct money only.
PARTIES :	3081/97 Peter Lawrence Lewis (P) Lamru Pty Ltd (Applicant) Kation Pty Ltd (Respondent) Brian Raymond Silvia (Liquidator) 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
COUNSEL:	N A Cotman SC & J T Johnson (P L Lewis & Kation P/L) S J Motbey (Lamru P/L) V R Gray (Liquidator & Nortex P/L) No appearance (M Lewis)
SOLICITORS:	Kemp Strang (P L Lewis & Kation P/L) Lyons & Lyons (Lamru P/L) Abbott Tout (Liquidator & Nortex P/L) Corrs Chambers Westgarth (M Lewis)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 11 NOVEMBER 2003

3081/97 PETER LAWRENCE LEWIS v NORTEX PTY LTD (In Liq)
1750/02 LAMRU PTY LIMITED v KATION PTY LIMITED & ORS

JUDGMENT: On Application by Liquidator (see Transcript p 3180)

1 HIS HONOUR: The liquidator, Mr B R Silvia, applies to have set aside a subpoena to give evidence directed to him. The purpose of the subpoena is to procure his attendance to permit his further cross examination. The cross examination that is outstanding is about three-quarter of an hour's further cross examination by Mr Cotman of Senior Counsel for the Lewis interests and about three days cross examination by Mr Motbey, of counsel for Lamru, whose cross examination has not yet commenced.

2 The cross examination is consequential upon the reading of affidavits by Mr Silvia in his case. The subpoena was accompanied by $100 conduct money. The motion is moved is on the basis that Mr Silvia is a liquidator who is out of funds. He, therefore, ought not be required to engage in the preparation for the resumption of his cross examination and to attend for the four days said to be necessary to complete it. It is said that the reason that he is out of funds is because of the protraction of this litigation by the manner in which it has been conducted by all other parties and that ought to conduce to the subpoena being set aside.

3 The cost of his attendance as quantified in the evidence laid before me on the application is for a large sum of money which includes his costs of attendance and legal representation on the relevant days.

4 Bearing in mind the stage that this litigation has reached, I am not prepared to set the subpoena aside, leaving the confusion in the litigation of evidence half cross examined upon or in part cross examined upon. Nor am I prepared to order, which appears to be put forward as an alternative, the payment of tens of thousands of dollars worth of legal fees in exchange for Mr Silvia attending to complete his evidence. I also bear in mind that Mr Silvia is a party, has chosen to participate in the hearing and has himself propounded the affidavits on which he is being cross examined.

5 Whilst the Court is not without some sympathy for Mr Silvia in the position in which he finds himself, the conclusion I have reached is that the subpoena will not be set aside and no other order will be made on the motion. The case will continue in its ordinary course. The motion is dismissed. Costs of the motion are reserved.

**********

Last Modified: 11/17/2003