Williamson v Nilant
[2001] WASC 29
WILLIAMSON & ANOR -v- NILANT [2001] WASC 29
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 29 | |
| Case No: | COR:313/2000 | 19 JANUARY 2001 | |
| Coram: | MASTER BREDMEYER | 6/02/01 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| PDF Version |
| Parties: | IAN EDWARD WILLIAMSON YOGAN SOOBIAH NAIDOO CHARLES PHILIPPE LOUIS NILANT |
Catchwords: | Affidavits Admissibility of affidavits |
Legislation: | Rules of the Supreme Court, O 37 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
BETWEEN : IAN EDWARD WILLIAMSON
- First Plaintiff
YOGAN SOOBIAH NAIDOO
Second Plaintiff
AND
CHARLES PHILIPPE LOUIS NILANT
Defendant
Catchwords:
Affidavits - Admissibility of affidavits
Legislation:
Rules of the Supreme Court, O 37
(Page 2)
Result:
Application allowed in part
Representation:
Counsel:
First Plaintiff : Mr K C Staffa
Second Plaintiff : Mr K C Staffa
Defendant : Mr A Metaxas
Solicitors:
First Plaintiff : Kevin Staffa
Second Plaintiff : Kevin Staffa
Defendant : Metaxas & Vernon
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: The defendant has objected to the admissibility of numerous parts of two affidavits filed by the plaintiffs. Those affidavits are those of Mr Williamson, the first plaintiff, sworn 1 December 2000 and Mr Naidoo, the second plaintiff, sworn 4 December 2000. Owen J has directed that I rule on those objections. The substantive hearing is for the removal of the defendant as liquidator of LPO Transact Pty Ltd.
2 During the course of argument there was good co-operation between experienced counsel during which a number of the defendant's objections were not pressed and a number of objections were conceded by counsel for the plaintiffs. There remain only a relatively few disputed matters which require my ruling. I reserved on my ruling which I now give. For the sake of completeness, I will mention briefly paragraphs in which the objection was not pressed - which I will refer to as "withdrawn" and paragraphs which were amended or withdrawn by consent as "amended". Where I rule on an objection, I will say so.
The affidavit of Mr Williamson sworn 1 December 2000
3 In what follows a number will refer to the paragraph of that number.
6 - Withdrawn.
4 7 - The second stanza is admissible. Mr Williamson was a director of LPO and he is qualified to say that the shares issued to him and to Mr Yogan Naidoo have been fully paid. Also, Mr Yogan Naidoo in his affidavit confirms that paragraph.
5 8 - Admissible. I consider Mr Williamson qualified to make that statement for the reason given in connection with 7.
6 9 - Admissible. It is secondary evidence of 18 deposits to LPO's bank account totalling $81,300 made by Mr Williamson. The fact that it is secondary evidence goes to weight. It is good enough in this initial affidavit. If Mr Nilant contests that statement, then Mr Williamson, in an affidavit in reply, should produce documentary evidence of the deposits or the lack of them. Mr Nilant should, at least, search through the deposit books which he holds as liquidator. It is unnecessarily time consuming and expensive for Mr Williamson to obtain the deposit records, say by discovery from Mr Nilant, and then annex them to an affidavit when the fact may not be disputed.
(Page 4)
7 10 - Admissible, not really as evidence that Rama Naidoo failed to pay $31,500 for his shares, but that that (alleged) failure is the subject of District Court action No 3242 of 1999. The defendant can call for copies of the District Court affidavits on which the plaintiffs will rely under O 26 r 8(2).
8 11 - Second stanza - admissible. I consider that the deponent can say that the relationship between Rama Naidoo and Mr Williamson deteriorated over Mr Williamson's allegation that Mr Naidoo failed to pay $31,500 for his shares.
13 - Amended.
14 - Amended.
9 17 - Last sentence admissible. It states:
"Rama Naidoo was well aware of this as a result of discussions we had had since I first met him."
- It is a summary of discussions but their exact content, when and where they occurred may not be contested. If this statement is contested in an answering affidavit, then Mr Williamson, in a replying affidavit, would need to state details of the time and occasions when he told that to Mr Naidoo and details of what he said.
18 - Withdrawn.
19 - Withdrawn.
20 - Amended.
21 - Amended.
23 - Withdrawn.
24 - Amended.
25 - Withdrawn
26 - Amended.
27 - Withdrawn.
28 - Amended but otherwise objection withdrawn.
(Page 5)
11 29.1 - The word "for" is amended to the word "to" in the first line. In the last line the words "and his partiality and bias" are struck out as scandalous. Counsel for the plaintiffs can argue from facts that Mr Nilant is partial and biased.
12 29.4 - First sentence deleted by amendment. Second and third sentences are admissible. They may sound like argument, but rightly understood, are simply a denial of the earlier assertion that Mr Williamson and Mr Yogan Naidoo had "ripped $400,000 out of the company". Last sentence amended by deletion.
30 - Struck out by agreement.
32 - Withdrawn.
33 - Withdrawn.
34 - Admissible. Relevant. The second sentence is a statement of fact.
37 - Withdrawn.
38 - Withdrawn.
40.3 - Amended by deletion.
41.2 - Amended.
41.3, 41.4 and 41.5 - Withdrawn.
42 - Withdrawn.
43.2 - Amended, otherwise admissible.
43.3 - Admissible as relevant.
44 - Withdrawn.
45 - Amended.
46.2 - Amended by deletion.
46.3 - Amended by deletion.
13 47 - Opening line amended by deletion. Minor amendment to dates made during the course of argument.
48.2 - Amended by deletion.
49.2 - Withdrawn.
14 49.2(d) - First stanza, second sentence, admissible although a summary of discussions. If the statement is contested that Rama Naidoo took part in the discussions and reached agreement etc, then details of the
(Page 6)
- discussions when, where and what was said, can be given in an affidavit in reply. The last sentence of that stanza: "Therefore, he should also be the subject of section 596A summons" struck out as argument. Last stanza amended by deletion.
50 - Withdrawn.
51 - Amended.
52.1 and 52.2 - Amended by deletion.
52.3 - Admissible. I have previously allowed this evidence.
52.4 - Amended.
52.6 - Amended.
53 - Amended by deletion.
54 - Opening part "Conflict of Interest" amended by deletion.
54.2 - Withdrawn.
15 3 - This paragraph confirms the contents of various enumerated paragraphs in Mr Williamson's affidavit. This paragraph will stand. It now refers to those enumerated paragraphs in Mr Williamson's affidavit, subject to deletions and amendments by consent and struck out by my rulings on that affidavit just expressed.
4 - Withdrawn.
6 - Admissible. Relevant as an explanation of why he allowed a liquidator to be appointed.
16 7 - Third sentence amended by deletion. Fourth and fifth sentences struck out as argument. If the witness had said "If Mr Nilant had asked me those questions out of court I would have answered them", the sentence would be admissible as a statement of fact.
8 - Withdrawn.
17 9 - First sentence struck out as argumentative. Rest of paragraph admissible. Last sentence is a denial of the suspicions. Ultimately, though, it is for the court to decide.
11 - Amended. Second sentence admissible opinion.
12 and 13 - Withdrawn.
15 - Amended.
(Page 7)
- 17 - Withdrawn.
18 - Amended.
19 - Withdrawn.
20 - Amended.
18 21 - Admissible in this initiating affidavit. If the defendant contests that an agreement was reached on Mr Yogan Naidoo's charge of $100 per hour then details of what was said; when, and where, can be given in a replying affidavit. I understand that this issue was explored at length in the s 596A application.
22 - Amended.
23 - Withdrawn.
19 The defendant is to file answering affidavits within 14 days. Costs of this application are in the cause of the originating summons.
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