Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2003] NSWSC 1047

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2003] NSWSC 1047

The subpoena was not set aside because the litigation had reached a stage where setting it aside would leave evidence only partly cross-examined, and Mr Silvia was a party who had participated in the hearing and propounded the affidavits on which he was being cross-examined. The Court also refused to require payment of tens of thousands of dollars in legal fees as a condition of his attendance.

Jurisdiction
Australia
Judgment Date
11 November 2003
Procedural Posture
Application to Set Aside Subpoena to Give Evidence / On Application by Liquidator During Trial Cross Examination
Outcome
Application to set aside subpoena to give evidence refused; motion dismissed; costs reserved.
Legal Topics
['subpoena to Witness' 'conduct Money' 'liquidator Out of Funds' 'cross Examination of Deponent']
['civil Procedure' 'evidence' 'insolvency'] ['subpoena to Witness' 'conduct Money' 'liquidator Out of Funds' 'cross Examination of Deponent']

Case Brief

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Procedural Posture

Application to Set Aside Subpoena to Give Evidence / On Application by Liquidator During Trial Cross Examination

Legal Issues

  1. 1 ['Whether a subpoena to give evidence directed to the liquidator should be set aside where the liquidator was out of funds and had been tendered $100 conduct money.' 'Whether the liquidator should be required to attend and prepare for further cross-examination arising from affidavits he had read in his case.' 'Whether payment of substantial legal fees should be ordered as a condition of the liquidator attending to complete his evidence.']

Ratio Decidendi

The subpoena was not set aside because the litigation had reached a stage where setting it aside would leave evidence only partly cross-examined, and Mr Silvia was a party who had participated in the hearing and propounded the affidavits on which he was being cross-examined. The Court also refused to require payment of tens of thousands of dollars in legal fees as a condition of his attendance.

Court Disposition

Application to set aside subpoena to give evidence refused; motion dismissed; costs reserved.

Orders

  • ['The subpoena will not be set aside.' 'No other order will be made on the motion.' 'The case will continue in its ordinary course.' 'The motion is dismissed.' 'Costs of the motion are reserved.']