Liu v Option Funds Management Limited

In the matter of Liu v Option Funds Management Limited, the applicants, Ms Liu and Mr Zhu, sought leave to adduce evidence via video link from China. The applicants allege that Option Funds Management Limited and its director, Mr Cao, breached various statutory provisions and fiduciary duties by misleading them about a $2 million payment. The respondents opposed the application, arguing that Mr Zhu's evidence was relatively uncontentious and peripheral, and that his evidence was unlikely to be lengthy, complex, or contentious. The respondents also suggested that there were no significant issues of credit likely to arise in relation to Mr Zhu's evidence. However, the Court was required to consider what was in the best interests of the administration of justice, and whether it was appropriate to grant leave for Mr Zhu to give evidence via video link from China. The Court considered the serious state of health of Mr Zhu, the travel restrictions and threat of COVID-19, and the relatively uncontentious nature of his evidence. The Court held that it was in the best interests of the administration of justice to grant leave for Mr Zhu to give evidence via video link from China. The Court noted that the alleged misrepresentations were said to have been made in the course of conversations between Mr Cao and Ms Liu, and that Mr Zhu had some peripheral discussions with Mr Cao, though those dealings occurred well before, and did not concern, the payment which is central to the proceeding. The Court also noted that while it is somewhat difficult to analyse and be emphatic about the relevant importance or otherwise of Mr Zhu’s evidence in the overall context of these proceedings, it does not expect that Mr Zhu’s evidence will be particularly lengthy, complex or contentious. The Court concluded that the considerations of Mr Zhu’s serious state of health, travel restrictions and threat of COVID-19 outweighed the respondents' concerns about the potential subtleties or nuances that may arise in respect of Mr Zhu’s evidence. The Court granted leave for Mr Zhu to give evidence via video link from China, and made several other orders relating to the conduct of the trial, including that evidence is not to be adduced orally from a witness in respect of a topic, issue, event or circumstance if that topic, issue, event or circumstances is not addressed in substance in the affidavit which has been sworn by the witness, and that witnesses are not to be examined or cross-examined about what is said or not said in their affidavit without the leave of the court or the consent of the opposing party. The costs of the interlocutory application were also awarded to the plaintiff.