In the matter of Diveva Pty Limited [2015] NSWSC 794

In the matter of Diveva Pty Limited [2015] NSWSC 794

Leave to cross-examine is granted, as recent authority indicates that, to avoid unfairness, a party contending a dispute or offsetting claim is fictitious should be allowed to put that allegation to the relevant witness, especially where failure to do so may weaken that party's case.

Parties
Plaintiff: Diveva Pty Ltd; Defendant: Pacific Blue Metal Pty Ltd
Jurisdiction
Australia
Judgment Date
13 April 2015
Procedural Posture
Application to Set Aside Creditor's Statutory Demand / Application for Leave to Cross Examine in Interlocutory Proceedings
Outcome
Application for leave to cross-examine officer of plaintiff granted.
Legal Topics
Creditor's Statutory Demand, Cross Examination, Offsetting Claim, Leave to Cross Examine
Corporations Law Civil Procedure Creditor's Statutory Demand Cross Examination Offsetting Claim Leave to Cross Examine

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Parties

Diveva Pty Ltd

Plaintiff

Pacific Blue Metal Pty Ltd

Defendant

Procedural Posture

Application to Set Aside Creditor's Statutory Demand / Application for Leave to Cross Examine in Interlocutory Proceedings

Legal Issues

  1. 1 Whether leave to cross-examine the plaintiff's officer should be granted in an application to set aside a creditor's statutory demand
  2. 2 Whether cross-examination is justified to impugn the genuineness of an offsetting claim

Ratio Decidendi

Leave to cross-examine is granted, as recent authority indicates that, to avoid unfairness, a party contending a dispute or offsetting claim is fictitious should be allowed to put that allegation to the relevant witness, especially where failure to do so may weaken that party's case.

Court Disposition

Application for leave to cross-examine officer of plaintiff granted.

Orders

  • Leave is granted to the defendant to cross-examine Mr Pinson in respect of the genuineness of the plaintiff's offsetting claim.