Edge Technology Pty Ltd v Wang [2000] FCA 1459 (10 October 2000)

Last Updated: 26 October 2000

FEDERAL COURT OF AUSTRALIA

Edge Technology Pty Ltd v Wang [2000] FCA 1459

EDGE TECHNOLOGY PTY LIMITED (IN LIQUIDATION) (RECEIVER APPOINTED) ACN 003 761 144 AND EDGE TECHNOLOGY PTY LIMITED

(IN LIQUIDATION) (RECEIVER APPOINTED) ACN v

JEN-TSE WANG (also known as Johnson Wang) AND

SIU CHUI LAI WANG (also known as Phynia Wang)

N 7671 of 2000

HILL J

10 OCTOBER 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7671 OF 2000

IN THE MATTER OF JEN-TSE WANG (also known as Johnson Wang) AND

SIU CHUI LAI WANG (also known as Phynia Wang)

BETWEEN:	EDGE TECHNOLOGY PTY LIMITED (IN LIQUIDATION) (RECEIVER APPOINTED) ACN 003 761 144 AND EDGE HOLDINGS PTY LIMITED (IN LIQUIDATION) (RECEIVER APPOINTED) ACN 061 986 221 APPLICANTS
AND:	JEN-TSE WANG AND SIU CHUI LAI WANG RESPONDENTS

JUDGE:	HILL J
DATE:	10 OCTOBER 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 Before the Court is a motion brought by Mr and Mrs Wang, the debtors, seeking that they be permitted to give evidence by video transmission in their opposition to the entering of a petition filed with the Court by the applicants, Edge Technology Pty Limited (in liquidation) (receiver appointed) and Edge Holdings Pty Limited (in liquidation) (receiver appointed). At the hearing of the motion, one of the creditors, Microsoft, was also represented but made no submission.

2 In support of the motion the solicitor for Mr and Mrs Wang sought to read an affidavit of Mr Wang dated 4 August 2000 and a supplementary affidavit of Mr Wang dated 9 October 2000. Senior counsel for the petitioning creditors objected to the affidavits being read on the basis that they had given notice that they wished Mr Wang to be present for cross-examination. It was pointed out that the request to Mr Wang that he attend to be cross-examined was only served by facsimile transmission late yesterday, apparently at 18:50. That the request was given late is not particularly surprising since the motion before me was only served upon the solicitors for the petitioning creditors yesterday in any event.

3 In an affidavit read on behalf of the petitioning creditors there was correspondence commencing 4 August 2000 in which it was noted that Mr Wang was required to give affidavit evidence in the petition proceedings. I was told from the bar table, and have no reason to disbelieve, that the motion before me was foreshadowed some days ago and that it was likewise foreshadowed that Mr Wang would be required to attend on cross-examination in the motion as well as at the hearing of the petition.

4 I would have been disposed to permit video evidence to be given for the purposes of the motion had an application been made that I do so and, for that purpose, that I grant an adjournment. While I gave Mr Wang's solicitor the opportunity of requesting an adjournment, it was not sought. It seems to me however rather circular to dismiss a motion that the evidence on the petition be not heard by video just by rejecting Mr Wang's evidence on the motion because he is not present. It is for that reason that I propose to deal with the case put by Mr Wang in the affidavits, which are sought to be relied upon, rather than merely decide the matter by reference to whether those affidavits should be read.

5 The first of the affidavits of Mr Wang is dated 4 August 2000. In that affidavit, which was filed for the purpose of the opposition to the petition, Mr Wang says that he left Australia to meet with a number of groups of people to be able to obtain funds. He says also that he needed some time to investigate whether the petitioning creditors in fact were owed the amounts they claimed on the petition. That latter assertion was in essence in support of an application that the petition be adjourned for a period of three weeks. That period of course has long since passed.

6 In clause 14 of the affidavit Mr Wang says that neither he nor his wife has any present intention of returning to Australia. The second affidavit sworn yesterday says that the matters set out in the August affidavit other than paragraph 12(a) continue to be true. He continues by saying that he is unable to return to Australia "as business commitments are such that I am not able to travel". He gives no account of what those business commitments are and indeed this vague statement no doubt provides a firm foundation for the request that Mr Wang at least be available for cross-examination on the motion.

7 He gives evidence about a settlement concluding that the underlying basis of a possible settlement, namely, a takeover of eisa Limited was now unlikely since it would seem that the shareholding of that company no longer has any substantial value. He says he still has need to apply himself to examining the records of the Edge companies to substantiate a view that the debts claimed by the applicants in the proceedings were not due and owing. It is unclear to me why the records of the Edge companies are all in Hong Kong or at least those of them that would substantiate the question of whether the debts claimed are owing.

8 Presumably the reference to the Edge companies is a reference to other Edge companies not being the applicants since the records of the applicants are most likely in Australia where the receiver and liquidator are present. Bankruptcy, concerned as it is with status, involves the personal attention of a debtor. No doubt it is true with modern technology that it is possible for evidence to be taken in another place where a bankrupt for some reason, for example, lack of funds or legitimate other reason may be unable to come to Sydney or to Australia.

9 There is no suggestion here that Mr Wang lacks the funds to come to Sydney. There is no suggestion here that Mr Wang will ever return to Sydney. There is no real account of matters requiring Mr Wang's attention in Hong Kong or elsewhere save for a bland assertion unable to be verified by cross-examination that he has business matters to attend to. A hearing in Australia of the petition would (including travel) not be likely to take more than three days and is most unlikely to interrupt Mr Wang's business negotiations to any real degree.

10 In the event that an order were made sequestrating the estates of the debtors they personally would come within the jurisdiction of this Court in the supervision of the bankruptcy. They would need to be available to respond to questions of a trustee in bankruptcy related to a statement of affairs that would be required to be filed and they would need to provide appropriate reasons for any overseas travel in the event that the trustee were to take possession of their passports. The question of difficulty is whether these matters, that is to say the non-attendance of the debtors in Australia after the making of a sequestration order, assuming one were ultimately made, are relevant to the issue on the motion namely, whether in opposition to the petition, evidence should be given by video.

11 The discretion whether to permit that course to be taken is of course a discretion to be exercised judicially. I am conscious that the issue on the petition will be whether the Wangs departed from Australia to attend to the matters that Mr Wang says they needed to attend to or whether, as the petitioning creditors assert, they departed for reasons of, in essence, avoiding their creditors. This issue is one that clearly goes to Mr Wang's credit. It is an issue which will require me to assess whether what Mr Wang says in his affidavit of 4 August is true or whether it is not. While there are occasions when the Court will permit video evidence to be taken, even where matters of credit are at issue, it is not generally a desirable course.

12 The lack of desirability is particularly so where the explanation for why Mr Wang is unable to give evidence personally is expressed in the vaguest possible terms and in circumstances which might permit an inference that the reason Mr Wang wished to avoid coming to Australia personally and giving evidence by video was to avoid bringing himself within the jurisdiction where, in the event a sequestration order was made, he would be subject to the Court's control. Accordingly I would not, for the purposes of the motion, reject Mr Wang's affidavits but am of the view that Mr Wang has not satisfied me that it is necessary that his evidence be not given in person. I would accordingly dismiss the motion with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated: 10 October 2000

Counsel for the Applicant:	B Coles QC
Solicitor for the Applicant:	Blake Dawson Waldron
Solicitor for the Respondent:	A J Law & Co
Date of Hearing:	10 October 2000
Date of Judgment:	10 October 2000