Hyperion Property Syndicates Ltd v CBRE Pty Ltd; In the matter of Accord Pacific Land Limited (in liq) [2014] NSWSC 1637

Hyperion Property Syndicates Ltd v CBRE Pty Ltd; In the matter of Accord Pacific Land Limited (in liq) [2014] NSWSC 1637

Because the proceedings were on pleadings, the default position was that evidence in chief at trial be given orally. However, the parties had effectively proceeded by convention on the basis of affidavit evidence, and that course would save trial time. An order should therefore require the evidence of Ian Greenwood and Gavin Lloyd to be given by affidavit except for the specified disputed conversations, as a party was entitled to have that evidence given orally absent sufficient reason to depart from the default position.

Jurisdiction
Australia
Judgment Date
18 November 2014
Procedural Posture
Interlocutory Applications / Application for Directions as to Whether Parts of the Evidence in Chief of Two Witnesses at Trial Should Be Given Orally or by Affidavit
Outcome
Order made that the evidence of Ian Greenwood and Gavin Lloyd at the trial, other than evidence of specified conversations, must be given by affidavit; proceedings adjourned for further directions.
Legal Topics
['course of Evidence at Trial' 'evidence in Chief' 'oral Evidence' 'affidavit Evidence' 'proceedings Continued on Pleadings' 'ucpr R 31.1(3) Directions']
['evidence' 'civil Procedure' 'corporations'] ['course of Evidence at Trial' 'evidence in Chief' 'oral Evidence' 'affidavit Evidence' 'proceedings Continued on Pleadings' 'ucpr R 31.1(3) Directions']

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Procedural Posture

Interlocutory Applications / Application for Directions as to Whether Parts of the Evidence in Chief of Two Witnesses at Trial Should Be Given Orally or by Affidavit

Legal Issues

  1. 1 ['Whether, in proceedings continued on pleadings, the evidence in chief of Ian Greenwood and Gavin Lloyd should be given orally or by affidavit.' 'Whether evidence about specified disputed conversations should be excluded from an order requiring evidence in chief to be given by affidavit.']

Ratio Decidendi

Because the proceedings were on pleadings, the default position was that evidence in chief at trial be given orally. However, the parties had effectively proceeded by convention on the basis of affidavit evidence, and that course would save trial time. An order should therefore require the evidence of Ian Greenwood and Gavin Lloyd to be given by affidavit except for the specified disputed conversations, as a party was entitled to have that evidence given orally absent sufficient reason to depart from the default position.

Court Disposition

Order made that the evidence of Ian Greenwood and Gavin Lloyd at the trial, other than evidence of specified conversations, must be given by affidavit; proceedings adjourned for further directions.

Orders

  • ['Pursuant to UCPR r 31.1(3) the evidence of Ian Greenwood at the trial, other than his evidence of the conversations referred to in paragraphs 14, 19, 21, 23 and 24 of his affidavit sworn 16 July 2013, must be given by affidavit.' 'The evidence of Gavin Lloyd at the trial, other than his evidence of the said...