Lollback v Brakepower Pty Ltd [2010] NSWSC 1332

Lollback v Brakepower Pty Ltd [2010] NSWSC 1332

Because the s 536 inquiry aspect involved supervisory and disciplinary considerations, the liquidator should be allowed to remain silent if he wished; but because the remuneration review made his affidavit evidence relevant in the ordinary way, he could not rely on his affidavits while avoiding cross-examination. The liquidator therefore had to elect either not to read his affidavits and avoid cross-examination, or to read them and be cross-examined.

Jurisdiction
Australia
Judgment Date
16 November 2010
Procedural Posture
Applications for Review of a Registrar's Decision Fixing Liquidator's Remuneration and for an Inquiry Into the Conduct of a Liquidator Under S 536 of the Corporations Act 2001 (cth) / Procedural Ruling on Whether the Liquidator Should Be Subjected to Cross Examination If His Affidavits Are Read
Outcome
The liquidator was required to choose whether to read his affidavits and submit to cross-examination or not read them and avoid cross-examination.
Legal Topics
['liquidator Remuneration' "inquiry Into Liquidator's Conduct" 'cross Examination of Affidavit Deponent' "review of Registrar's Decision"]
['corporations Law' 'civil Procedure'] ['liquidator Remuneration' "inquiry Into Liquidator's Conduct" 'cross Examination of Affidavit Deponent' "review of Registrar's Decision"]

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Procedural Posture

Applications for Review of a Registrar's Decision Fixing Liquidator's Remuneration and for an Inquiry Into the Conduct of a Liquidator Under S 536 of the Corporations Act 2001 (cth) / Procedural Ruling on Whether the Liquidator Should Be Subjected to Cross Examination If His Affidavits Are Read

Legal Issues

  1. 1 ['Whether cross-examination of the liquidator should be dispensed with where the liquidator wishes to read affidavits on applications including a possible s 536 inquiry into his conduct.' "Whether the concurrent review of the registrar's decision fixing remuneration affects the appropriateness of cross-examination."]

Ratio Decidendi

Because the s 536 inquiry aspect involved supervisory and disciplinary considerations, the liquidator should be allowed to remain silent if he wished; but because the remuneration review made his affidavit evidence relevant in the ordinary way, he could not rely on his affidavits while avoiding cross-examination. The liquidator therefore had to elect either not to read his affidavits and avoid cross-examination, or to read them and be cross-examined.

Court Disposition

The liquidator was required to choose whether to read his affidavits and submit to cross-examination or not read them and avoid cross-examination.

Orders

  • ['The liquidator can elect not to read his affidavits and thereby protect himself from cross-examination or he can elect to read them and be cross-examined.']