Montage Group Pty Ltd v Wong [2011] NSWSC 726

Montage Group Pty Ltd v Wong [2011] NSWSC 726

Leave to cross examine Mr Jolly was refused because the case was not exceptional, the plaintiff confirmed it would not take a Browne v Dunn objection, fairness to Mr Jolly did not require cross examination, and cross examination would inevitably go to the underlying merits of the asserted dispute contrary to the purpose of ss 459G and 459H and the just, quick and cheap resolution of the real issues.

Jurisdiction
Australia
Judgment Date
06 July 2011
Procedural Posture
Application Under Ss 459 G and 459 H of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Interlocutory Application for Leave to Cross Examine a Deponent of Affidavits
Outcome
Leave to cross examine deponent of affidavit in application to set aside statutory demand not granted.
Legal Topics
['statutory Demand' 'application to Set Aside Statutory Demand' 'cross Examination of Deponent' 'genuine Dispute' 'offsetting Claims']
['corporations Law' 'civil Procedure'] ['statutory Demand' 'application to Set Aside Statutory Demand' 'cross Examination of Deponent' 'genuine Dispute' 'offsetting Claims']

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Procedural Posture

Application Under Ss 459 G and 459 H of the Corporations Act 2001 (cth) to Set Aside a Statutory Demand / Interlocutory Application for Leave to Cross Examine a Deponent of Affidavits

Legal Issues

  1. 1 ['Whether leave should be granted to the defendant to cross examine Mr Jolly, the sole director of the plaintiff, on affidavits relied upon in an application to set aside a statutory demand.' "Whether cross examination was necessary or appropriate where the court's role was to determine whether there was a genuine dispute or offsetting claim, not the underlying merits."]

Ratio Decidendi

Leave to cross examine Mr Jolly was refused because the case was not exceptional, the plaintiff confirmed it would not take a Browne v Dunn objection, fairness to Mr Jolly did not require cross examination, and cross examination would inevitably go to the underlying merits of the asserted dispute contrary to the purpose of ss 459G and 459H and the just, quick and cheap resolution of the real issues.

Court Disposition

Leave to cross examine deponent of affidavit in application to set aside statutory demand not granted.

Orders

  • ['Leave to the defendant to cross examine Mr Jolly in respect of his affidavits sworn in these proceedings is declined.']