In the matter of H&C Investment Holdings Pty Ltd [2023] NSWSC 1387

In the matter of H&C Investment Holdings Pty Ltd [2023] NSWSC 1387

The plaintiffs did not demonstrate that all reasonable steps were taken to secure or facilitate the attendance of the second and fifth plaintiffs; specifically, the attempts to obtain visas and communicate with employers were inadequate, and available and necessary steps were not taken in a timely or full manner. Their affidavits are not admissible under s 63 of the Evidence Act 1995 (NSW) absent cross-examination.

Parties
First Plaintiff: Steven Huang; Second Plaintiff: Chun Huang; Third Plaintiff: S&C Investment Nominees Pty Ltd; Fourth Plaintiff: Huafa Development Pty Ltd ABN 31 601 761 433; Fifth Plaintiff: Qiao Sheng Huang; First Defendant: Hosea Chan; Second Defendant: Chan & Hui Investment Nominees Pty Ltd; Third Defendant: H & C Investment Holdings Pty Ltd ACN 147 329 860
Jurisdiction
Australia
Judgment Date
15 November 2023
Procedural Posture
Corporations List Equity / Interlocutory Application During Final Hearing
Outcome
Application dismissed
Legal Topics
Admissibility of Affidavit Evidence, Unavailability of Witnesses, Cross Examination Requirements
Evidence Civil Procedure Admissibility of Affidavit Evidence Unavailability of Witnesses Cross Examination Requirements

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Parties

Steven Huang

First Plaintiff

Chun Huang

Second Plaintiff

S&C Investment Nominees Pty Ltd

Third Plaintiff

Huafa Development Pty Ltd ABN 31 601 761 433

Fourth Plaintiff

Qiao Sheng Huang

Fifth Plaintiff

Hosea Chan

First Defendant

Chan & Hui Investment Nominees Pty Ltd

Second Defendant

H & C Investment Holdings Pty Ltd ACN 147 329 860

Third Defendant

Procedural Posture

Corporations List Equity / Interlocutory Application During Final Hearing

Legal Issues

  1. 1 Whether affidavits of second and fifth plaintiffs are admissible under s 63 of the Evidence Act 1995 (NSW) where defendants require cross-examination but the witnesses will not attend for cross-examination
  2. 2 Whether all reasonable steps to secure the attendance of the witnesses have been taken

Ratio Decidendi

The plaintiffs did not demonstrate that all reasonable steps were taken to secure or facilitate the attendance of the second and fifth plaintiffs; specifically, the attempts to obtain visas and communicate with employers were inadequate, and available and necessary steps were not taken in a timely or full manner. Their affidavits are not admissible under s 63 of the Evidence Act 1995 (NSW) absent cross-examination.

Court Disposition

Application dismissed

Orders

  • Plaintiffs' application to rely on affidavits of Chun Huang affirmed on 3 November 2022 and 17 February 2023, and affidavits of Qiao Sheng Huang affirmed on 3 November 2022 and 17 February 2023, without attendance for cross-examination is dismissed.
  • Affidavits not admitted under s 63 of Evidence Act 1995 (NSW)