Katwell v National Australia Bank [2012] NSWSC 1272

Katwell v National Australia Bank [2012] NSWSC 1272

In the circumstances of this case, the explanations given by Katwell's officers regarding discovery are not so manifestly implausible as to justify permitting cross-examination on their affidavits of discovery. The discretion to permit such cross-examination must be exercised on a fact-dependent basis, and nothing in this case warrants departing from the general rule. Further costs and time would not be justified and would be inconsistent with the overriding purpose set out in s 56 of the Civil Procedure Act.

Parties
First Plaintiff: Katwell Pty Limited; Second Plaintiff: John Katerinis; Defendant: National Australia Bank
Jurisdiction
Australia
Judgment Date
11 October 2012
Procedural Posture
Civil / Interlocutory Application (discovery)
Outcome
Application for cross-examination on discovery dismissed with costs.
Legal Topics
Discovery, Affidavits, Cross Examination, Costs Orders
Procedure Costs Discovery Affidavits Cross Examination Costs Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Katwell Pty Limited

First Plaintiff

John Katerinis

Second Plaintiff

National Australia Bank

Defendant

Procedural Posture

Civil / Interlocutory Application (discovery)

Legal Issues

  1. 1 Whether the court should permit cross-examination on affidavits of discovery
  2. 2 Whether the explanation for inability to produce further documents is so manifestly implausible that cross-examination should be ordered
  3. 3 Appropriate costs orders

Ratio Decidendi

In the circumstances of this case, the explanations given by Katwell's officers regarding discovery are not so manifestly implausible as to justify permitting cross-examination on their affidavits of discovery. The discretion to permit such cross-examination must be exercised on a fact-dependent basis, and nothing in this case warrants departing from the general rule. Further costs and time would not be justified and would be inconsistent with the overriding purpose set out in s 56 of the Civil Procedure Act.

Court Disposition

Application for cross-examination on discovery dismissed with costs.

Orders

  • The defendant pay the plaintiff's costs of the defendant's Amended Notice of Motion filed on 28 October 2011, subject to the order made by Sackar J on 29 May 2012.
  • The final version of the plaintiff's proposed amendments be served by 5.00pm on 16 October 2012.