Environinvest Limited v Pescott & Ors (No 2) [2012] VSC 151 (26 April 2012)


PRACTICE AND PROCEDURE – Application to amend pleading – Allegations of breach of ss 180, 181, 182 Corporations Act 2001 (Cth) – Relief sought under Part 5.7B Corporations Act 2001 (Cth) – Evidence supporting claims – Need for proper basis certification – Civil Procedure Act 2010 (Vic) s 18, Corporations Act 2001 (Cth) ss 180, 181, 182, 588FB, 588FC, 588FDA, 588FE, 588FF, 1317H.

45 Mr Robertson submitted that affidavit evidence given by Mr Dossetor and another witness (Anthony Medland) in separate proceedings are hearsay and no leave has been sought to use them in this proceeding. He noted that no notice of intention to adduce hearsay evidence had been given pursuant to s 67 of the Evidence Act 2008 (Vic). As counsel for the plaintiffs noted, this application is interlocutory and the hearsay rule does not apply.[28] Those affidavits go to show that there is a reasonable basis on which the plaintiffs may plead an arguable case.