The High Court has directed Kieran Wallace and Michael Curran to attend for cross-examination on 18 November 2015, as part of a pending hearing on an application for an interlocutory injunction involving XL Fuels Group Limited, which is in receivership.
The order concerns affidavit evidence from Curran, the first defendant. The court was asked to allow the plaintiffs to cross-examine him before the injunction motion, which was listed for 18 November. The judge also directed Wallace, the receiver and second plaintiff, to attend for cross-examination on that date.
The receiver alleges that Curran procured the creation of a “phoenix company” that took over XL Fuels’ assets and business around the start of the receivership. The injunction application seeks, among other things, a sworn statement of affairs, company books and records, and the return of stock, fuel and other assets said to have been removed from the company’s premises or control. The receiver also alleges misappropriation, obstruction and damage to company property. These are allegations, not findings in this judgment.
Curran says he delivered the relevant company records to the receiver and did not misappropriate assets. His solicitors offered to submit to the injunction orders sought. He did not admit the receiver’s allegations.
Justice Brian J. McGovern considered whether cross-examination was necessary despite Curran’s stated willingness to submit to the proposed interim orders. The usual rule, he said, is that leave to cross-examine on affidavit evidence in an interlocutory injunction application may be granted where conflicting facts need to be resolved to determine the proceedings.
The judge found that the serious disputed allegations and the risk that company property could be lost made it important to address the conflicts promptly, preferably at the injunction hearing. Cross-examining Curran without also allowing the receiver to be questioned would be unfair, the judge said. He therefore exercised his discretion to permit both to be cross-examined.
The judgment decides only that cross-examination should take place at the forthcoming injunction hearing. It does not determine the allegations or the substantive terms of any injunction; the court said the evidence would assist it in deciding what specific interim orders, if any, should be made.