Baba v Sheehan (No 3) [2020] NSWSC 920

Baba v Sheehan (No 3) [2020] NSWSC 920

Leave to re-open was refused because the email, while apparently strong, was not decisive, would require cross-examination and further evidence, had been available to Mr Baba throughout the litigation, was produced only after unexplained delay, and a further contested hearing would be disproportionate to the small amounts involved. The same discretionary considerations defeated the belated long service leave argument. Silktote was therefore entitled to judgment against Mr Baba for the salary sacrifice amounts and interest, and to costs of the cross-claim since 26 September 2019.

Jurisdiction
Australia
Judgment Date
17 July 2020
Procedural Posture
Equity Corporations List; Cross Claim Accounting / Application for Leave to Re Open the Evidence and Consequential Orders After Accounting Judgment
Outcome
Application to re-open refused; judgment entered for the cross-claimant against the second cross-defendant; costs ordered against the second cross-defendant only.
Legal Topics
['account' 'leave to Re Open Evidence' 'salary Sacrifice Payments' 'long Service Leave' 'cross Claim Costs']
['civil Procedure' 'equity' 'corporations' 'costs'] ['account' 'leave to Re Open Evidence' 'salary Sacrifice Payments' 'long Service Leave' 'cross Claim Costs']

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Procedural Posture

Equity Corporations List; Cross Claim Accounting / Application for Leave to Re Open the Evidence and Consequential Orders After Accounting Judgment

Legal Issues

  1. 1 ['Whether the accounting exercise should be re-opened to admit further affidavits and an email said to show authorisation of normal salary sacrifice payments in the 2017 financial year.' 'Whether the accounting exercise should be re-opened to allow a belated argument that Mr Baba had a legal entitlement to an equivalent long service leave payment by way of set off.' 'Whether costs should follow the event despite the small amount recovered on the cross-claim.']

Ratio Decidendi

Leave to re-open was refused because the email, while apparently strong, was not decisive, would require cross-examination and further evidence, had been available to Mr Baba throughout the litigation, was produced only after unexplained delay, and a further contested hearing would be disproportionate to the small amounts involved. The same discretionary considerations defeated the belated long service leave argument. Silktote was therefore entitled to judgment against Mr Baba for the salary sacrifice amounts and interest, and to costs of the cross-claim since 26 September 2019.

Court Disposition

Application to re-open refused; judgment entered for the cross-claimant against the second cross-defendant; costs ordered against the second cross-defendant only.

Orders

  • ['Direct judgment for the cross-claimant against the second cross-defendant for the sum of $24,528 together with interest of $4,453.18.' "The second cross-defendant pay the cross-claimants' costs of the cross-claim since 26 September 2019."]