In the matter of Lime Gourmet Pizza Bar (Charlestown) Pty Ltd formerly under administration); Lime Gourmet Pizza Bar (Darby Street) Pty Ltd (formerly under administration) (in liq); Lime Gourmet Pizza Bar (Hamilton) Pty Ltd (formerly under administration) [2014] NSWSC 1898

In the matter of Lime Gourmet Pizza Bar (Charlestown) Pty Ltd formerly under administration); Lime Gourmet Pizza Bar (Darby Street) Pty Ltd (formerly under administration) (in liq); Lime Gourmet Pizza Bar (Hamilton) Pty Ltd (formerly under administration) [2014] NSWSC 1898

Applying Song v Ying, Mrs Moshos was compellable by the first and third defendants to give evidence, even though no subpoena had been issued. Because the availability of compulsion was sufficient, it would elevate form over substance to refuse a s 128 certificate for her affidavit evidence in chief where a subpoena could then be issued and the certificate granted. Subject to satisfying the requirements of s 128 in respect of particular evidence, a certificate would be available for her affidavit evidence in chief and cross-examination.

Jurisdiction
Australia
Judgment Date
14 November 2014
Procedural Posture
Evidence Ruling in Corporations Proceedings / Ex Tempore Ruling on Availability of Certificate Under Evidence Act 1995 (nsw) S 128
Outcome
Certificate to be made available in respect of evidence given by Mrs Moshos in chief, by affidavit in the proceedings, and in cross-examination, subject to satisfaction of the requirements of Evidence Act 1995 (NSW) s 128 in respect of particular evidence.
Legal Topics
['privilege Against Self Incrimination' 'certificates Under Evidence Act 1995 (nsw) S 128' 'compellability of Witnesses' "directors' Duties"]
['evidence' 'corporations'] ['privilege Against Self Incrimination' 'certificates Under Evidence Act 1995 (nsw) S 128' 'compellability of Witnesses' "directors' Duties"]

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Procedural Posture

Evidence Ruling in Corporations Proceedings / Ex Tempore Ruling on Availability of Certificate Under Evidence Act 1995 (nsw) S 128

Legal Issues

  1. 1 ['Whether a certificate under Evidence Act 1995 (NSW) s 128 can be available to Mrs Moshos in respect of affidavit evidence in chief as well as cross-examination.' 'Whether Mrs Moshos was compellable by the first and third defendants to give evidence in the proceedings.' 'Whether the evidence might tend to incriminate Mrs Moshos or expose her to a civil penalty or offence arising from a potential contravention of Corporations Act 2001 (Cth) s 181, with dishonest contravention being an offence under s 184.']

Ratio Decidendi

Applying Song v Ying, Mrs Moshos was compellable by the first and third defendants to give evidence, even though no subpoena had been issued. Because the availability of compulsion was sufficient, it would elevate form over substance to refuse a s 128 certificate for her affidavit evidence in chief where a subpoena could then be issued and the certificate granted. Subject to satisfying the requirements of s 128 in respect of particular evidence, a certificate would be available for her affidavit evidence in chief and cross-examination.

Court Disposition

Certificate to be made available in respect of evidence given by Mrs Moshos in chief, by affidavit in the proceedings, and in cross-examination, subject to satisfaction of the requirements of Evidence Act 1995 (NSW) s 128 in respect of particular evidence.

Orders

  • ['Subject to satisfying the requirements of Evidence Act 1995 (NSW) s 128 in respect of particular evidence, a certificate will be available in respect of evidence given by Mrs Moshos in chief, by affidavit in the proceedings, as well as in cross-examination.']