Defendant 2018/00364820)
Muse Beauty Salon Waterloo Pty Ltd (Plaintiff 2018/00364820
Defendant 2018/00117938)
Representation: Counsel:
G Campbell (Plaintiff 2018/00117938
Defendant 2018/00364820)
F Santisi (Plaintiff 2018/00364820
Defendant 2018/00117938)
Source
Original judgment source is linked above.
Catchwords
Defendant 2018/00364820)
Muse Beauty Salon Waterloo Pty Ltd (Plaintiff 2018/00364820Defendant 2018/00117938)
Representation: Counsel:
G Campbell (Plaintiff 2018/00117938Defendant 2018/00364820)
F Santisi (Plaintiff 2018/00364820Defendant 2018/00117938)
Judgment (3 paragraphs)
[1]
EX TEMPORE Judgment
HIS HONOUR: Before the Court is a Notice of Motion filed 30 September 2021 by the Huang interests seeking orders to the effect that leave be granted to recall Ms Xie and that leave be granted to adduce further evidence relating to the $60,000, the subject of evidence by Ms Lo. There is also a prayer for relief that leave be granted to adduce the evidence in the affidavit of Mr Ngo dated 30 June 2021 and that of Ms Huang dated 30 September 2021.
This Notice of Motion has involved the reading of 12 affidavits. The hearing of it has continued from yesterday to today.
The affidavit of Ms Huang dated 30 September 2021 has already been read subject to rulings after discussion with Mr Campbell of counsel. His initial objection to it was withdrawn. That is the subject of a judgment given by me on 5 October 2021.
Having regard to the complexity of the issues on the application, the quantum of the affidavits and the significance to the parties of the issue, this would normally require a reserved decision. However, due to the nature of the case and the need to resolve the issue and to clarify the position, the Court feels obliged to give an ex tempore ruling which would otherwise be undesirable.
These proceedings, which are in their twenty first day, relate to the recovery of money and a claim for damages. The Huang interests claim $68,000 plus interest as a refundable deposit or as damages under the Australian Consumer Law. The Xie interests claim about $270,000 as damages for breach of contract and for the tort of injurious falsehood. Although not pleaded, there appears to be a claim for conversion relating to a machine.
I am satisfied, from both the nature of the proceedings, the length of the hearing, and the affidavit of Mr Wang, that the costs already incurred by the parties are very likely to have exceeded, or have actually exceeded, these sums in relation to the claims made by each of the groups of parties. I think it is very likely that the costs of the Huang interests to date have exceeded the amount claimed by them. Mr Wang gives evidence that the costs already incurred, billed and unbilled by the Xie interests, exceed the amount of the Xie interests' claim.
The proceedings have been very hard‑fought. Every point has been taken. The credit of the witnesses and the parties is centrally in issue. Many facts are disputed. This has resulted in very extensive cross‑examination of the witnesses so far. Despite the orders sought in the Notice of Motion, in substance, leave is sought by the Huang interests to adduce further evidence from Ms Lo and Ms Huang relating to various documents. The credit of Ms Lo and Ms Huang is in dispute and will likely involve submissions from the parties.
It is, in my view, unnecessary to go through each of the affidavits relied upon in detail. However, some observations should be made as follows:
1. The affidavit of Mr Ngo dated 30 June 2021 which was the affidavit first relied upon, refers to the background to the issue of the alleged payment by Ms Lo of $60,000 for an investment in the Muse stores, and a receipt for that payment. Reference is made to the affidavits relating to that issue which go back to 2020. Mr Ngo annexes to his affidavit the documents in relation to which leave is sought to adduce further evidence. A crucial document, relating to the WeChat messages, is that dated 17 October 2018. It refers to Ms Lo asserting that she had given Ms Xie and Ms Bai $60,000 in cash, and an assertion that they should give a reasonable return.
There is no indication in the document what the $60,000 relates to, but it is the same amount that has been disputed by Ms Xie and Ms Bai as having been given to them by Ms Lo. There is no response in the document from Ms Xie or Ms Bai to that assertion, and, in particular, there is no admission that the amount was paid. Also annexed to Mr Ngo's affidavit is the photograph in issue of houses in the street of Ms Huang and Mr Nam, and a friend request from Ms Liu, which is relevant to the question of when Ms Huang first met Ms Liu, or had contact with her as a friend on WeChat;
1. The affidavit of Ms Huang dated 30 September 2021 relied upon, has already been read, and, subject to rulings, has been admitted;
2. The affidavit of Ms Lo dated 6 October 2021 replies to the affidavit of Ms Xie and Mr Li. It denies assertions that there was other correspondence relevant to the October 2018 WeChat messages;
3. The affidavit of Mr Ngo dated 7 October 2021 relates to when he received the email from Mr Nam containing Ms Lo's WeChat messages, and the need for a translation of them;
4. The affidavit of Ms Lo of 7 October 2021 responds in detail to assertions in the affidavit of Ms Xie, which I shall come to;
5. The affidavit of Ms Xie dated 29 September 2021 responds to Mr Ngo's affidavit affirmed 30 June 2021 and asserts that there were other WeChat messages from her disputing Ms Lo's claim to the $60,000. It also disputes translations in the affidavit relating to the October 2018 document;
6. The affidavit of Mr Li deals with a meeting on 29 November 2017 at the offices of Sun Lawyers. Mr Li was the solicitor acting for Ms Xie and Ms Bai at that time. Mr Li gives his account of the meeting, and in paragraph 14, he says that his best recollection is he did not see the receipt in issue;
7. The affidavit of Mr Wang sets out the costs incurred so far in the matter by the Xie interests and Mr Wang's estimate of future costs, if leave were granted as sought. I must say, in passing, that the estimates given by Mr Wang as to the costs if leave were granted, in my view, appear to be excessive. I do not regard the costs likely to be incurred if leave were granted to be of the nature suggested, or that it would take the time suggested, but clearly, if leave were granted, Ms Xie and Ms Bai should properly be able to respond to Ms Lo's affidavit;
8. The affidavit of Ms Gong dated 11 October 2021 provides evidence in relation to WeChat, and provides information and belief evidence from Ms Xie and Ms Bai relating to the WeChat messages;
9. The affidavit of Mr Ngo dated 12 October 2021 provides evidence in relation to WeChat, and the fact that Mr Ngo had been informed by Ms Lo that she had two separate phones containing the history relating to the two different periods of messages;
10. The affidavit of Mr Nam dated 12 October 2021 relates to the issue of the photograph at the address in Colebee, and other information relating to WeChat and the phones held by him and his wife;
11. The affidavit of Ms Lo dated 12 October 2021 gives information in relation to her different WeChat accounts, and the fact that there were two conversations with Ms Bai and Ms Xie concerning the payment of the $60,000 in cash, which she asserts, having had her memory refreshed, was paid in two amounts.
The affidavit of Ms Lo dated 7 October 2021, which I have referred to, annexes at page 37 additional WeChat messages that have Ms Bai saying: "Thank you for your investment of $60,000." It is not stated what the investment was for, but it was in the context of the message saying that Ms Bai would make sure the shop was "well‑furnished and decorated". The message seems to suggest that Ms Lo was to give $20,000 to Ms Bai on 25 November 2017, and the balance some days later. Later messages refer to the balance being paid at a later date in November 2017, and Ms Xie saying: "No problems, as long as it's before we sign the contract." The inference sought to be drawn from these is that, consistent with her evidence, Ms Lo did pay $60,000, but it is said now in two lots, and that that is consistent with her oral evidence and the cross‑examination of Ms Xie and Ms Bai. While that seems to be the indication in the WeChat messages, it is not stated clearly such as that "we have now received $60,000 from you". The intention, as evinced in the WeChat messages, is to do something in the future.
It is important to consider the course of the evidence as shown in the transcript. Ms Bai commenced her evidence on day 8 on 25 June 2021 at T333, and continued over a number of days. There was an application to recall Ms Xie on 30 June 2021, which appears to be linked to when the plaintiff first met Ms Liu. The first mention of the Ngo affidavit dated 30 June 2021 was on day 12 at T552.9. By this time, the evidence of Ms Bai had been completed. Although there was no formal statement of a closure of the Xie case, it seems clear that, having regard to the affidavits that were read, there had been a close of the case of the Xie interests prior to that time. An express mention of the closure of the case was made soon after the first mention of the Ngo affidavit. See T555.22 and T559.47 ‑ 50. Ms Lo commenced her evidence on day 12 ‑ see T563 ‑ and continued over a number of days up to day 15. SeeT724.
Some things should be said about Ms Lo. Ms Lo was a person called in the Huang interests case. She affirmed two affidavits, one dated 15 May 2020 and one dated 16 May 2021. On 9 July 2020, an order was made by the Court for the Huang interests to serve any affidavits on which they wished to rely by 28 September 2020. The first affidavit of Ms Lo was served within time. The last was not served in accordance with the order. Ms Lo is not a party to the case. However, the evidence in the trial shows that there had been interaction between Ms Lo and Ms Huang in 2017 and 2018, although it seems that the contact in 2018 related to a perception between them that they may have been treated poorly by Ms Xie and Ms Bai, to use a neutral expression.
Ms Lo's evidence goes to both the issues in dispute and credit. It goes to the following issues in the case:
1. Whether there had been training by Ms Lo or Ms Xie or Ms Bai of Ms Huang in January 2018;
2. The practice of Ms Xie and Ms Bai in seeking investments in Muse City and Muse Waterloo at the end of 2017;
3. The way the City shop was run and the number of customers as at 2017/18; and
4. Whether Ms Lo was involved with Ms Huang in any way in the placement of posts critical of Ms Xie relating to the injurious falsehood claim.
Ms Lo's credit is also centrally in issue. One central issue relating to the credit of Ms Lo which also impacts on the credit of Ms Xie and Ms Bai is whether Ms Lo made a $60,000 payment to them in November 2017 and whether a receipt was obtained for that payment. Ms Lo says that the money was paid and a receipt was obtained and provided. Ms Xie and Ms Bai effectively deny that and they deny that the receipt was provided by them and dispute the handwriting. Irrespective of the result of this application, the credit of Ms Lo is likely to be severely challenged in any final submissions by the Xie interests, really as will be the credit of all witnesses. The $60,000 alleged payment and the alleged receipt have involved already extensive cross‑examination of Ms Xie, Ms Bai and Ms Lo.
It is necessary to consider briefly the legislative context for what is sought to occur. In substance, what the Huang interests are seeking to do is to lead further oral evidence from Ms Lo and/or provide an affidavit from Ms Lo which annexes the WeChat messages. It is also sought to lead further evidence‑in‑chief from Ms Huang in relation to the photograph of the house although that could be done presumably through Mr Nam.
The first issue to note is that s 55 of the Evidence Act 1995 (NSW) includes as relevant, documents which go only to credit. That is made clear by the terms of the section. Section 55(2) states that evidence is not taken to be irrelevant only because it relates only to the credibility of a witness.
Section 101A of the Evidence Act relates to credibility evidence. That is, evidence in relation to a witness is evidence relevant to the credibility of the witness if it is relevant only because it affects the assessment of the credibility of the witness or a person. Generally speaking, credibility evidence is not admissible: s 102 of the Evidence Act. However, s 103 provides an exception to the general rule to evidence adduced in cross‑examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. Here, in cross‑examination of Ms Xie and Ms Bai, they have denied the payment and the receipt. In the cross‑examination of Ms Lo, she stated that the payment was made and the receipt was provided. Section 106 is relevant to the application as well. It provides that the credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if in cross‑examination of the witness, the substance of the evidence was put to the witness.
In my view, the substance of the evidence was put to Ms Xie and Ms Bai being that the $60,000 was paid and the receipt was given. I do not think it is necessary for the WeChat messages to have been directly put, because a clear denial was given by Ms Xie and Ms Bai and that the substance, being the payment and the giving of the receipt, was put. Section 106(2) states that leave is not required to adduce evidence otherwise than from the witness relating to credibility if the witness has made "a prior inconsistent statement" ((c)) or has knowingly or recklessly made a false representation under an obligation imposed by or under an Australian law or a law of a foreign country to tell the truth.
The history of the affidavits in the matter is that Ms Lo asserted that she paid the $60,000. This was denied by Ms Xie in an affidavit. In her responding affidavit, Ms Lo annexed the receipt which is disputed. In my view, on its face, the proposed evidence falls within s 106(2)(c) in relation to a prior inconsistent statement. I am not presently satisfied that it falls within s 106(2)(e) because I am not satisfied that I can find that there has been a knowingly or reckless false representation by Ms Xie or Ms Lo.
Mr Campbell did not indicate that s 106 was not satisfied in that regard in his submissions. Mr Santisi submits that as the section is satisfied, in order for the evidence to be excluded it must be expressly excluded and the onus falls upon the Xie interests to substantiate that. Section 135 of the Evidence Act provides as follows:
"135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing, or
(c) cause or result in undue waste of time."
The question to be addressed is whether the proposed evidence if leave were given falls within s 135. In particular, the question is whether it could cause or result in undue waste of time.
It is important to consider the present application in its context. The following matters in my view need to be taken into account:
1. The proceedings were listed on 10 July 2020 by the List Judge for a final hearing to commence on 7 June 2021 with an estimate of five hearing days;
2. On 10 July 2020, an order was made by the List Judge for the service of all affidavits on which the Huang interests wished to rely by late 2020;
3. The first affidavit of Ms Lo was served within the orders, but the second was not;
4. The hearing commenced on 7 June 2021;
5. The proceedings involve a considerable amount of money but not a huge sum and I have already referred to the fact that the Huang interests sue for $68,000 plus interest and the Xie interests sue for about $270,000 plus interest;
6. The case is now in its twenty‑first hearing day and I have already referred to the finding on the evidence that it is likely that legal costs have already exceeded the sums in issue;
7. If the Lo WeChat documents are allowed to be tendered, then Ms Xie and Ms Bai will reasonably want to give further evidence. This seems appropriate as a matter of fairness. Mr Santisi did not submit to the contrary but submitted that there was little they could say about them in the light of the material before the Court and a substantial amount of evidence or delay is unlikely;
8. Ms Xie has been cross‑examined for several days already. She is employed and has a child. Ms Bai gave oral evidence for four days. I will come back to Ms Bai's peculiar position in a moment;
9. Ms Lo would need to be available for cross‑examination. She said that she will make herself available on the evidence. She gave oral evidence over four days. Mr Li, solicitor, has also affirmed an affidavit. Mr Li would potentially need to be available for cross‑examination if an application was made to allow his evidence which if further evidence is to be allowed from Ms Lo would be possible. It would have to be given serious consideration;
10. There are potential translation issues in relation to the WeChat messages in issue;
11. Ms Lo is not a party. Accordingly, the Huang interests have no control over her except as under subpoena;
12. There has been late service in the reading of other affidavits, such as Ms Xie's affidavit of 8 June 2021 and Ms Huang's affidavit of 30 September 2021;
13. It appears to me that although Ms Lo is not a party to the proceedings, her affidavit raised the question of a payment of $60,000, which was denied by Ms Xie. This created an issue. The case was always likely to be one going to credit. Mr Ngo, in his affidavit dated 30 June 2021, refers to the late filing of the Lo affidavit, but says no objection was raised;
14. Mr Ngo says that it was only on 26 May 2021 that an issue as to the authenticity of the receipt was raised in circumstances where there existed other documents and other writings on which the Court could undertake its own evaluation. Despite Ms Lo not being a party to the proceedings, in my view, having regard to this issue emerging in a credit case, there was clearly an opportunity for Ms Lo to be consulted in an earlier conference, as to the importance of other WeChat exchanges, particularly in November 2017. To me, it was apparent that this would likely be a matter going to credit. There is no evidence before me that Ms Lo would not have co‑operated, so the availability of Ms Lo, her capacity to provide and search for the documents in issue, and the late service of her affidavit, are all relevant to the application before the Court;
15. On my assessment, contrary to the opinion of Mr Wang, if leave were granted, there would not be many days required to deal with this issue. In my assessment, it is likely that it would add anywhere between one and three further days of hearing to the matter. However, it would involve an adjournment, and I do accept that it is unclear what the full consequences are with Ms Xie and Ms Bai investigating the matter. Mr Santisi says there is no suggestion that the documents were created or fabricated. That may be the case, but the question may be as to whether the money was received. One would think that Ms Xie and Ms Bai could recall that, but it may involve investigations by them quite reasonably;
16. The Huang interests say that the documents are an important matter as to credit to their case, and to quote Mr Santisi are the "nail in the coffin" on the issue. Although the second series of WeChat messages, being from November 2017, appear the most relevant, I do not agree that they amount to a "nail in the coffin" in the issue, but, certainly, tend to suggest that the payment in issue may have been made;
17. There has already been much cross‑examination on the payment and receipt point, including of Ms Lo, Ms Xie and Ms Bai, and that issue, and the credit of those witnesses, will need to be addressed in any final judgment, no matter what the result of this application;
18. Ms Bai is in China. There is an issue about her giving evidence orally, upon affirmation, from China. She had to go to Macau to give her evidence, and while she can prepare an affidavit dealing with the Lo issue, she cannot potentially be cross‑examined on it. There is no suggestion she can come back to Macau in the near future, and the status of any evidence given by her has to be considered. Mr Santisi says it is likely she will deny it, and accordingly, the affidavit could be admitted and taken into account. Mr Campbell, in my view correctly, submits that an affidavit from Ms Bai would be given less weight than an affidavit sworn in relation to which she was available for cross‑examination. To me, there is some force in that submission, and the question, ultimately, will arise about the fairness to allow the evidence in relation to Ms Bai, who is a defendant to the Huang claim, and a plaintiff to the Xie claim, in circumstances where there is no evidence that she could travel again in the near future for that purpose. That may lead to a different assessment of her evidence, or an extensive adjournment;
19. The WeChat documents which I have discussed, do not, in my view, contain a clear admission of the receipt of the money by Ms Xie and Ms Bai. In other words, whilst they raise serious issues on the matter, they are not decisive. I accept the November 2017 documents to be more relevant;
20. I have to consider the matter in the light of ss 56 to 59 of the Civil Procedure Act 2005 (NSW) and the overriding purpose in s 56(1). I also take into account ss 58(1) and 59 and the statutory objective to avoid delay. An adjournment of the trial would be necessary if leave were granted as sought;
21. Section 60 of the Civil Procedure Act is relevant as to proportionality of costs, and the further costs which would be incurred by allowing the evidence, in the light of the small amounts relatively which are claimed;
22. As I indicate, these documents could have been provided by Ms Lo in 2020, or at least 2021 in May, following a conference with her by the solicitor for the Huang interests. I accept that he had many other matters to deal with, but this matter, as a matter of credit, was there to be considered;
23. I take into account not only the fact an adjournment would be necessary, but the additional costs which would be incurred. These matters, in my view, are significant.
Various authorities have been referred to me this morning by Mr Campbell. I was not addressed in relation to them. The essence of the authorities ‑ and I do not think it is disputed ‑ is the Court has a power under s 135 of the Evidence Act, to reject evidence which would otherwise be admissible. In my view, consistently with Mr Santisi's submissions, this evidence, while going only to credit, would be prima facie admissible, and therefore the issue about whether to grant leave to adduce further evidence has to be seen in that context.
In Dyldham Developments Pty Ltd v Jones [2008] NSWCA 56 evidence which was accepted not only to be relevant, but highly relevant, was excluded by the trial judge under s 135 of the Evidence Act. Hodgson JA (with whom Giles JA agreed) gave the leading judgment. At paragraph 44, the reasons of the primary judge for rejecting the evidence were set out. A journal was sought to be tendered. It was accepted that evidence would be required of a witness to explain the document. Although it is different to the documents here, in my view, the documents in the present case, could only come in through Ms Lo.
In Dyldham, it was accepted that in the usual case, if an adjournment was required in order for there to be fairness, that would be the appropriate course to take. That is accepted by Mr Santisi in the present case, although he states it would only be a short adjournment.
The trial judge in Dyldham, however, found that to adopt that course would cause or result in an undue waste of time, and would be unfairly prejudicial to the plaintiff. Hodgson JA considered that issue where it was alleged on appeal that it was an error, and stated that if evidence was admitted without the plaintiff having an opportunity to test it properly, because of a previous failure to comply with a subpoena, there would be a danger that the evidence might be unfairly prejudicial. There it was held that it was by no means clear that the evidence, if properly tested, would have the probative value claimed for it.
However, Hodgson JA stated that if an adjournment was granted, the danger of prejudice could be avoided, but in his opinion, the delay to the trial would correctly be regarded as a waste of time within s 135(c). That was because it would require the recall of witnesses who had already given evidence. Hodgson JA stated, in his opinion, the primary judge was entitled to give considerable weight to this waste of time, resulting from an adjournment.
Basten JA gave a separate judgment. His Honour confirmed, in paragraph 91, that it was appropriate to treat s 135 as engaging the power to reject admissible evidence, in circumstances where the admission might satisfy any one of the three classes in s 135. His Honour stated at paragraph 94 that, once it was accepted that there was power to reject the evidence absent an adjournment, the appropriateness of an adjournment and the extent to which a costs order might reduce the element of prejudice, become significant factors. Those factors were relevant to the danger of prejudice, or an undue waste of time, and go to the discretion.
The cases referred to by Mr Campbell, which were sent to me earlier this morning, in essence are examples where giving leave to a party to adduce further evidence would result in an adjournment, or in further costs or delay, and these are factors to be taken into account. I do not consider that the cases are inconsistent with Dyldham, and I accept Mr Santisi's submission that in general terms, this involves the question of discretion, limited to the facts of the case.
In submissions, Mr Santisi referred to the importance of the WeChat messages; the fact that the Xie interests have been on notice of the desire to tender the documents for some time; the fact that they are business records; the fact that there has been an explanation for the delay; the history of the affidavits; the fact that Ms Lo's evidence goes to issues, not just credit, although in my view the documents in question go to credit; the explanation given for the searching for the documents in the light of the evidence; the lack of suggestion of Ms Xie and Ms Bai that there is some other $60,000 referred to; the lack of suggesting fabrication or incomplete evidence; Ms Lo's evidence that the WeChat messages are complete; and the short period of time that would be required if leave were granted. It was asserted that Mr Wang's evidence is much exaggerated in relation to the time required.
In relation to the Google maps document, it is said to be relevant and was not appreciated at the time by Ms Huang and would be limited evidence. However, Ms Huang was aware that this was an issue as to the 28 December 2017 conference and having looked at this issue, I do not find the document to be particularly relevant to the issues in the case. The fact that someone may have taken a photo of a different house in my view is not highly persuasive or even particularly persuasive.
I proceed to deal with the particular documents.
In relation to the WeChat messages, in my view leave should not be granted to the Huang interests to lead the evidence for the following reasons:
1. The documents go only to credit not to an issue;
2. The October 2018 documents do not indicate any agreement by Ms Xie and Ms Bai to the fact that $60,000 was owing;
3. The November 2017 documents are more significant but only talk to the future. There is no clear admission of receipt of the money by Ms Xie and Ms Bai. However, I accept that those documents are more relevant going to credit;
4. The case has gone on for 21 days and it involves a claim for a $68,000 plus interest by the Huang interests and about $270,000 by the Xie interests. The costs incurred I have already referred to;
5. Allowing the further evidence would require oral evidence from Ms Lo and affidavits and potential cross‑examination of Ms Xie and Ms Bai. This would take somewhere on my estimate of between one and three days of Court time and an adjournment. It also opens up the Li evidence area. Mr Campbell has indicated that if the documents are not permitted that he would not read that evidence and I take that into account. In other words, any allowing of the evidence will cause further delay and cost in an already highly lengthy case over a modest amount of money;
6. Ms Bai may well not be available to give oral evidence. To me, that is a very significant factor. She went to Macau because she could not, or at least there was a considerable belief that she could not, give evidence from China legally. Her affidavit even if not objected to, whatever it says, could not be properly tested and would have to be given a lesser weight by the Court, in the light of established authority;
7. The material in my view could have been obtained earlier from Ms Lo and annexed at least to her May 2021 affidavit;
8. A different result may well have occurred to such an application if the documents went to a central issue. It must be recalled as I indicated that they go to credit;
In relation to the house photograph, this in my view is of minor relevance. A wrong photograph in my view is not significant. The other factors I have already mentioned in relation to the WeChat messages apply. Ms Huang could have identified the issue earlier and I do not believe that leave should be granted.
In relation to the friend request, in my view this is in a different category. It involves only Ms Huang and Ms Lo and there is no need for any adjournment or further evidence from Ms Xie and Ms Bai.
Accordingly, I resolve the application as I have indicated and I will propose orders to satisfy that in due course.
The real concern of the Court is that the documents go to credit, an adjournment would be required which would involve more delay and cost in a matter that has already gone 21 hearing days despite the Court raising resolution between the parties earlier on. Every point has been taken and having regard to the limited amount in issue, in my view the case should proceed as soon as possible without further issues which could have been raised earlier.
[2]
Orders:
In respect of the Notice of Motion filed on 30 September 2021:
1. Leave is granted to the Huang interests to adduce further evidence relating to the Liu friend request from Ms Huang referred to in paragraph 8 of the affidavit of Frank Ngo dated 30 June 2021.
2. Leave is refused in relation to the Lo WeChat messages dated October 2018 and November 2017 and the photograph referred to in paragraph 7 of Mr Frank Ngo's affidavit affirmed on 30 June 2021.
3. The costs of the Notice of Motion are costs in the cause.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 October 2021
Parties
Applicant/Plaintiff:
Huang
Respondent/Defendant:
Muse Beauty Salon Waterloo Pty Ltd
Legislation Cited (3)
Australian Consumer Law Civil Procedure Act 2005(NSW)