In the matter of Sirrah Pty Ltd (in prov liq) [2021] NSWSC 140

In the matter of Sirrah Pty Ltd (in prov liq) [2021] NSWSC 140

Leave was granted only for the late affidavits that might contain relevant and admissible evidence on pleaded issues, with objections to be dealt with at the hearing; leave was refused for affidavits whose remaining contents were irrelevant, inadmissible, related to unpleaded issues, or would not promote the just, quick and cheap resolution of the real issues. Leave to withdraw admissions was refused because the Second – Fourth Defendants did not provide a sufficient explanation showing error when the admissions were made or evidence supporting the proposed denials, and the public interest in the integrity of verified defences and the continuation of the proceedings on the basis of those...

Jurisdiction
Australia
Judgment Date
24 February 2021
Procedural Posture
Derivative Proceedings and Oppression Claims in the Equity Corporations List / Interlocutory Applications for Leave to Rely on Late Affidavits and for Leave to Withdraw Admissions
Outcome
The application to rely on late affidavits was granted in part and otherwise dismissed; the application for leave to withdraw admissions was dismissed with costs; the words "do not" at the beginning of paragraph 54(a) of the Amended Defence were struck out.
Legal Topics
['late Affidavit Evidence' 'relevance and Admissibility of Evidence' 'withdrawal of Admissions' 'verified Defence' 'overriding Purpose']
['civil Procedure' 'corporations'] ['late Affidavit Evidence' 'relevance and Admissibility of Evidence' 'withdrawal of Admissions' 'verified Defence' 'overriding Purpose']

Case Brief

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Procedural Posture

Derivative Proceedings and Oppression Claims in the Equity Corporations List / Interlocutory Applications for Leave to Rely on Late Affidavits and for Leave to Withdraw Admissions

Legal Issues

  1. 1 ['Whether the Second – Fourth Defendants should be granted leave to rely on affidavit evidence served after the date ordered by the Court.' 'Whether the late affidavits, or parts of them, were relevant and admissible to pleaded issues in the proceedings.' 'Whether the Second – Fourth Defendants should be granted leave to withdraw admissions made in their Defence.' 'Whether the words "do not" inserted at the beginning of paragraph 54(a) of the Amended Defence should be struck out.']

Ratio Decidendi

Leave was granted only for the late affidavits that might contain relevant and admissible evidence on pleaded issues, with objections to be dealt with at the hearing; leave was refused for affidavits whose remaining contents were irrelevant, inadmissible, related to unpleaded issues, or would not promote the just, quick and cheap resolution of the real issues. Leave to withdraw admissions was refused because the Second – Fourth Defendants did not provide a sufficient explanation showing error when the admissions were made or evidence supporting the proposed denials, and the public interest in the integrity of verified defences and the continuation of the proceedings on the basis of those...

Court Disposition

The application to rely on late affidavits was granted in part and otherwise dismissed; the application for leave to withdraw admissions was dismissed with costs; the words "do not" at the beginning of paragraph 54(a) of the Amended Defence were struck out.

Orders

  • ['Grant leave to the Second – Fourth Defendants to rely on the affidavits (excluding those parts that they have advised are not to be read) of Mr Anderson, Ms Bernadette Harris, Ms Michelle Harris, Mr William Harris, Mr Rebollido and Mr Whitten and their Notice of Motion dated 8 February 2021 is otherwise...