Dolores Correa and The Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham [2012] NSWSC 795

Dolores Correa and The Spanish Club Limited (subject to Deed of Company Arrangement) v Kenneth Michael Whittingham [2012] NSWSC 795

The question to Mr Whittingham in cross-examination was disallowed because it was not supported by the Amended Points of Claim as they stood on the first day of hearing, nor could reliance be placed on the expert report or communication content alone to expand the scope of pleaded allegations. No application to amend was made, and procedural fairness required strict adherence to the pleaded case.

Parties
First Plaintiff: Dolores Correa; Second Plaintiff: The Spanish Club Limited (subject to Deed of Company Arrangement); Defendant: Kenneth Michael Whittingham
Jurisdiction
Australia
Judgment Date
15 March 2012
Procedural Posture
Interlocutory Application / Ruling on Objection to Cross Examination Question
Outcome
Question disallowed
Legal Topics
Objection to Cross Examination, Scope of Pleadings, Points of Claim, Deed of Company Arrangement, Administrator’s Duties
Practice and Procedure Corporations Law Objection to Cross Examination Scope of Pleadings Points of Claim Deed of Company Arrangement Administrator’s Duties

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Parties

Dolores Correa

First Plaintiff

The Spanish Club Limited (subject to Deed of Company Arrangement)

Second Plaintiff

Kenneth Michael Whittingham

Defendant

Procedural Posture

Interlocutory Application / Ruling on Objection to Cross Examination Question

Legal Issues

  1. 1 Whether a question asked in cross-examination was supported by issues raised in the Points of Claim
  2. 2 Whether the question should be allowed in light of the Amended Points of Claim
  3. 3 Proper formulation of criticisms against company administrators in light of pleadings

Ratio Decidendi

The question to Mr Whittingham in cross-examination was disallowed because it was not supported by the Amended Points of Claim as they stood on the first day of hearing, nor could reliance be placed on the expert report or communication content alone to expand the scope of pleaded allegations. No application to amend was made, and procedural fairness required strict adherence to the pleaded case.

Court Disposition

Question disallowed