Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 12) and 15 related matters [2012] NSWSC 1363

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 12) and 15 related matters [2012] NSWSC 1363

The plaintiffs cannot use Ms Chen's affidavit in the proceedings because she was not produced for cross-examination after reasonable notice was given. However, there is no requirement for her to now be compelled to attend since the affidavit will not be used.

Parties
First Plaintiff in 06/258216; First Defendant in 06/258225: Traderight (NSW) Pty Ltd (ACN 108 880 968); Second Plaintiff in 06/258216; Second Defendant in 08/258225: Bronwyn Smith; Third Plaintiff in 06/258216; Third Defendant in 08/258225: Geoffrey Versace; Fourth Plaintiff in 06/258216: Smith Partners Development Pty Ltd; Fifth Plaintiff in 06/258216: Verich Holdings Pty Ltd; Defendant in 06/258216; Plaintiff in 08/258225; Plaintiff in 08/279848; Defendant in 08/281332; First Defendant in 08/282126; First Defendant in 08/282304; First Plaintiff in 09/287360; Defendant in 09/287814; First Defendant in 07/256081; Fourth Defendant in 09/287816; First Defendant in 09/287824; Defendant in 10/304306; Defendant in 10/305568; Defendant in 10/306022; Defendant in 10/367086; Defendant in 10/367117: Bank of Queensland Limited (ACN 009 656 740); First Defendant in 08/279848; Tenth Defendant in 09/287360; First Plaintiff in 09/287814; Sixth Plaintiff in 07/256081: SME Business Assist Pty Limited (ACN 108 524 232); Second Defendant in 08/279848; Eleventh Defendant in 09/287360; Second Plaintiff in 09/287814; Seventh Plaintiff in 07/256081: Scott Rolfe McCoy; First Plaintiff in 08/281332: Geraghty & Palmer (NSW) Pty Ltd; Second Plaintiff in 08/281332: Shauna Margaret Geraghty; Third Plaintiff in 08/281332: Barry Palmer; First Plaintiff in 08/282126; Second Defendant in 09/287360; First Plaintiff in 07/256081; First Plaintiff in 09/287816: Rossmick No 1 Pty Limited; Second Plaintiff in 08/282126; Third Defendant in 09/287360; Second Plaintiff in 07/256081; Second Plaintiff in 09/287816: Rossmick No 2 Pty Limited; Third Plaintiff in 08/282126; Fourth Defendant in 09/287360; Third Plaintiff in 07/256081; Third Plaintiff in 09/287816: Michael Bradley; Fourth Plaintiff in 08/282126; Fifth Defendant in 09/287360; Fourth Plaintiff in 07/256081; Fourth Plaintiff in 09/287816: Ross Chapman; Fifth Plaintiff in 08/282126; Sixth Defendant in 09/287360; Fifth Plaintiff in 07/256081; Fifth Plaintiff in 09/287816: Luke Nolan; Second Defendant in 08/282126; Second Plaintiff in 09/287360; Second Defendant in 07/256081; First Defendant in 09/287816; Second Defendant in 09/287824: David Liddy; First Plaintiff in 08/282304; Seventh Defendant in 09/287360; Eighth Plaintiff in 07/256081; First Plaintiff in 09/287824: Jude Financial Services Pty Ltd (ACN 115 763 481); Second Plaintiff in 08/282304; Eighth Defendant in 09/287360; Ninth Plaintiff in 07/256081; Second Plaintiff in 09/287824: Russell Jude Edward Gardner; Third Plaintiff in 08/282304; Ninth Defendant in 09/287360; Tenth Plaintiff in 07/256081; Third Plaintiff in 09/287824: Penelope Ann Gardner; First Defendant in 09/287360: Industrial Court of New South Wales; Third Plaintiff in 09/287360; Third Defendant in 07/256081; Second Defendant in 09/287816; Fourth Defendant in 09/287824: Donna Quinn; Fourth Plaintiff in 09/287360; Fourth Defendant in 07/256081; Third Defendant in 09/287816; Third Defendant in 09/287824: Gary Allsop; First Plaintiff in 10/304306: Southpole Financial Services Pty Ltd; Second Plaintiff in 10/304306: Harunur Rashid Chowdhury; Third Plaintiff in 10/304306: Iftekhar Tarek Hassan; Fourth Plaintiff in 10/304306: Ikthedar Hassan Murad; First Plaintiff in 10/305568: Best Deal Pty Limited (ACN 119 366 433); Second Plaintiff in 10/305568: Jeffrey Bruce Jones; First Plaintiff in 10/306022: LJH Group Pty Limited (ACN 123 507 497); Second Plaintiff in 10/306022: Leslie Xu; Third Plaintiff in 10/306022: Jin Yu Yang; First Plaintiff in 10/367086: Leokate Pty Ltd (ACN 111 162 068); Second Plaintiff in 10/367086: Stephen Sargent; Third Plaintiff in 10/367086: Lauren Sargent; First Plaintiff in 10/367117: Shamarbre Pty Ltd; Second Plaintiff in 10/367117: Ronald George Johnson
Jurisdiction
Australia
Judgment Date
06 November 2012
Procedural Posture
Interlocutory Application / Ex Tempore Judgment on Interlocutory Application Regarding Cross Examination of Affidavit Witness
Outcome
Application dismissed (Bank's application to require Ms Chen to attend refused) and plaintiffs precluded from using Ms Chen's affidavit.
Legal Topics
Affidavits, Cross Examination, Uniform Civil Procedure Rules
Evidence Civil Procedure Affidavits Cross Examination Uniform Civil Procedure Rules

Case Brief

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Parties

Traderight (NSW) Pty Ltd (ACN 108 880 968)

First Plaintiff in 06/258216; First Defendant in 06/258225

Bronwyn Smith

Second Plaintiff in 06/258216; Second Defendant in 08/258225

Geoffrey Versace

Third Plaintiff in 06/258216; Third Defendant in 08/258225

Smith Partners Development Pty Ltd

Fourth Plaintiff in 06/258216

Verich Holdings Pty Ltd

Fifth Plaintiff in 06/258216

Bank of Queensland Limited (ACN 009 656 740)

Defendant in 06/258216; Plaintiff in 08/258225; Plaintiff in 08/279848; Defendant in 08/281332; First Defendant in 08/282126; First Defendant in 08/282304; First Plaintiff in 09/287360; Defendant in 09/287814; First Defendant in 07/256081; Fourth Defendant in 09/287816; First Defendant in 09/287824; Defendant in 10/304306; Defendant in 10/305568; Defendant in 10/306022; Defendant in 10/367086; Defendant in 10/367117

SME Business Assist Pty Limited (ACN 108 524 232)

First Defendant in 08/279848; Tenth Defendant in 09/287360; First Plaintiff in 09/287814; Sixth Plaintiff in 07/256081

Scott Rolfe McCoy

Second Defendant in 08/279848; Eleventh Defendant in 09/287360; Second Plaintiff in 09/287814; Seventh Plaintiff in 07/256081

Geraghty & Palmer (NSW) Pty Ltd

First Plaintiff in 08/281332

Shauna Margaret Geraghty

Second Plaintiff in 08/281332

Barry Palmer

Third Plaintiff in 08/281332

Rossmick No 1 Pty Limited

First Plaintiff in 08/282126; Second Defendant in 09/287360; First Plaintiff in 07/256081; First Plaintiff in 09/287816

Rossmick No 2 Pty Limited

Second Plaintiff in 08/282126; Third Defendant in 09/287360; Second Plaintiff in 07/256081; Second Plaintiff in 09/287816

Michael Bradley

Third Plaintiff in 08/282126; Fourth Defendant in 09/287360; Third Plaintiff in 07/256081; Third Plaintiff in 09/287816

Ross Chapman

Fourth Plaintiff in 08/282126; Fifth Defendant in 09/287360; Fourth Plaintiff in 07/256081; Fourth Plaintiff in 09/287816

Luke Nolan

Fifth Plaintiff in 08/282126; Sixth Defendant in 09/287360; Fifth Plaintiff in 07/256081; Fifth Plaintiff in 09/287816

David Liddy

Second Defendant in 08/282126; Second Plaintiff in 09/287360; Second Defendant in 07/256081; First Defendant in 09/287816; Second Defendant in 09/287824

Jude Financial Services Pty Ltd (ACN 115 763 481)

First Plaintiff in 08/282304; Seventh Defendant in 09/287360; Eighth Plaintiff in 07/256081; First Plaintiff in 09/287824

Russell Jude Edward Gardner

Second Plaintiff in 08/282304; Eighth Defendant in 09/287360; Ninth Plaintiff in 07/256081; Second Plaintiff in 09/287824

Penelope Ann Gardner

Third Plaintiff in 08/282304; Ninth Defendant in 09/287360; Tenth Plaintiff in 07/256081; Third Plaintiff in 09/287824

Industrial Court of New South Wales

First Defendant in 09/287360

Donna Quinn

Third Plaintiff in 09/287360; Third Defendant in 07/256081; Second Defendant in 09/287816; Fourth Defendant in 09/287824

Gary Allsop

Fourth Plaintiff in 09/287360; Fourth Defendant in 07/256081; Third Defendant in 09/287816; Third Defendant in 09/287824

Southpole Financial Services Pty Ltd

First Plaintiff in 10/304306

Harunur Rashid Chowdhury

Second Plaintiff in 10/304306

Iftekhar Tarek Hassan

Third Plaintiff in 10/304306

Ikthedar Hassan Murad

Fourth Plaintiff in 10/304306

Best Deal Pty Limited (ACN 119 366 433)

First Plaintiff in 10/305568

Jeffrey Bruce Jones

Second Plaintiff in 10/305568

LJH Group Pty Limited (ACN 123 507 497)

First Plaintiff in 10/306022

Leslie Xu

Second Plaintiff in 10/306022

Jin Yu Yang

Third Plaintiff in 10/306022

Leokate Pty Ltd (ACN 111 162 068)

First Plaintiff in 10/367086

Stephen Sargent

Second Plaintiff in 10/367086

Lauren Sargent

Third Plaintiff in 10/367086

Shamarbre Pty Ltd

First Plaintiff in 10/367117

Ronald George Johnson

Second Plaintiff in 10/367117

Procedural Posture

Interlocutory Application / Ex Tempore Judgment on Interlocutory Application Regarding Cross Examination of Affidavit Witness

Legal Issues

  1. 1 Whether a party can refuse to produce a witness for cross-examination after their affidavit has been read
  2. 2 Application of Uniform Civil Procedure Rule 35.2 (NSW) when deponent is not produced

Ratio Decidendi

The plaintiffs cannot use Ms Chen's affidavit in the proceedings because she was not produced for cross-examination after reasonable notice was given. However, there is no requirement for her to now be compelled to attend since the affidavit will not be used.

Court Disposition

Application dismissed (Bank's application to require Ms Chen to attend refused) and plaintiffs precluded from using Ms Chen's affidavit.

Orders

  • Plaintiffs cannot use the affidavit of Ms Chen in the proceedings.
  • Ms Chen is not required to attend for cross-examination.