Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732

Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732

The hearing should be vacated because requiring the plaintiffs' key witnesses in China to give evidence by audio visual link would, in these circumstances (COVID-19, possible unlawfulness under Chinese law, risk to fairness in cross-examination via interpreters, and risk of incomplete hearing), be unjust and contrary to the interests of justice. There is insufficient prejudice to the defendants from the delay or timing of the application, and no satisfactory practical or lawful means for the witnesses to give evidence remotely or in person without undue risk.

Jurisdiction
Australia
Judgment Date
12 June 2020
Procedural Posture
Civil / Interlocutory Application for Adjournment/vacation of Hearing
Outcome
hearing vacated; costs in the cause; relisted for call over
Legal Topics
['adjournment of Hearing' 'covid 19 Pandemic' 'audio Visual Evidence' 'witnesses Outside Jurisdiction']
['civil Procedure' 'equity'] ['adjournment of Hearing' 'covid 19 Pandemic' 'audio Visual Evidence' 'witnesses Outside Jurisdiction']

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Procedural Posture

Civil / Interlocutory Application for Adjournment/vacation of Hearing

Legal Issues

  1. 1 ['Whether the hearing should be vacated due to inability of three key witnesses in China to attend because of COVID-19 travel restrictions and legal/practical impediments to giving evidence remotely' 'Whether it would be just or fair to require the evidence of witnesses in China to be given by audio visual link, considering legal (Chinese law), practical, and fairness concerns' "Whether the timing of the plaintiffs' vacate application prejudices the defendants"]

Ratio Decidendi

The hearing should be vacated because requiring the plaintiffs' key witnesses in China to give evidence by audio visual link would, in these circumstances (COVID-19, possible unlawfulness under Chinese law, risk to fairness in cross-examination via interpreters, and risk of incomplete hearing), be unjust and contrary to the interests of justice. There is insufficient prejudice to the defendants from the delay or timing of the application, and no satisfactory practical or lawful means for the witnesses to give evidence remotely or in person without undue risk.

Court Disposition

hearing vacated; costs in the cause; relisted for call over

Orders

  • ['Order that the hearing in these proceedings fixed to commence on 6 July 2020 and to continue for a period of eight days be vacated.' "Order that the costs of the application to vacate the hearing be the parties' costs in the cause." 'List the proceedings in the call over list before the Chief Judge in Equity at...