Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 237

Lewis v Nortex Pty Ltd (In Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 237

The application must be refused because Division 1 of Part 4.6 of the Evidence Act 1995 does not enable a party to seek an order that another party call the maker of a representation when the applicant itself is proffering the representation in evidence. The statutory structure only allows such an order where the applicant is the subject of the representation and another party has adduced or intends to adduce it in evidence.

Parties
Plaintiff: Lamru Pty Ltd; First Defendant: Kation Pty Ltd; Second Defendant: Peter Lawrence Lewis; Third Defendant: Mark Lewis; Liquidator: Brian Raymond Silvia (Liquidator)
Jurisdiction
Australia
Judgment Date
26 March 2002
Procedural Posture
Application in Equity Proceedings / Interlocutory Application for Order Under S 169 Evidence Act 1995
Outcome
Application refused
Legal Topics
Hearsay, Admissibility of Evidence, Requests to Call Witnesses
Evidence Civil Procedure Hearsay Admissibility of Evidence Requests to Call Witnesses

Case Brief

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Parties

Lamru Pty Ltd

Plaintiff

Kation Pty Ltd

First Defendant

Peter Lawrence Lewis

Second Defendant

Mark Lewis

Third Defendant

Brian Raymond Silvia (Liquidator)

Liquidator

Procedural Posture

Application in Equity Proceedings / Interlocutory Application for Order Under S 169 Evidence Act 1995

Legal Issues

  1. 1 Whether the court should order the liquidator to call a witness (Mr Potter) under s 169 of the Evidence Act 1995 on the plaintiff's application.

Ratio Decidendi

The application must be refused because Division 1 of Part 4.6 of the Evidence Act 1995 does not enable a party to seek an order that another party call the maker of a representation when the applicant itself is proffering the representation in evidence. The statutory structure only allows such an order where the applicant is the subject of the representation and another party has adduced or intends to adduce it in evidence.

Court Disposition

Application refused

Orders

  • Plaintiff's application for an order under s 169 of the Evidence Act 1995 is refused.
  • Plaintiff to pay the liquidator's costs of the notice of motion filed 31 January 2002.