FEDERAL COURT OF AUSTRALIA
Cao v Apollo Phoenix Resources Pty Ltd [2019] FCA 1113
Appeal from: Application for leave to appeal: Cao v Apollo Phoenix Resources Pty Ltd (No 2) [2019] FCA 469 File number: NSD 557 of 2019 Judge: LEE J Date of judgment: 5 July 2019 Legislation: Federal Court of Australia Act 1976 (Cth) Pt VB Cases cited: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Australian Competition and Consumer Commission v Dataline.net.au Pty Ltd [2005] FCA 153
Cao v Apollo Phoenix Resources Pty Ltd(No 2) [2019] FCA 469
Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2001] FCA 173; (2001) 108 FCR 77
Hutchinson v Comcare [2017] FCA 136
LFDB v SM [2017] FCAFC 178: (2017) 256 FCR 218
Lowe v Mack Trucks Australia Pty Ltd [2001] FCA 388
Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381
Skinner v Commonwealth of Australia [2012] FCA 1194
Wiri People #2 v State of Queensland [2006] FCA 1069
Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84
Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185
Date of hearing: 5 July 2019 Registry: New South Wales Division: General National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: No Catchwords Number of Paragraphs: 16 Counsel for the Applicant: Mr C Carter Solicitor for the Applicant: Australian Business Lawyers & Advisors Counsel for the First Respondent: Mr P Silver Solicitor for the First Respondent: Mills Oakley Counsel for the Second and Third Respondent: Mr A P Coleman SC Solicitor for the Second and Third Respondent: Fairweather Litigation ORDERS
NSD 557 of 2019 BETWEEN: ZHONG CAO
Applicant
AND: APOLLO PHOENIX RESOURCES PTY LTD
Respondent
JUDGE:
LEE J
DATE OF ORDER:
5 JULY 2019
THE COURT ORDERS THAT:
1.The application of the respondents for the dismissal of the application for leave to appeal be adjourned sine die.
2.The time to pay the amounts referred to in orders 1, 2 and 3 made by consent on 30 May 2019 be extended to 5pm on 31 July 2019.
3.The applicant pay the respondents’ costs thrown away by the adjournment of the application to dismiss the application for leave to appeal, with such costs to be paid on an indemnity basis.
4.In the event that payment does not occur in accordance with order 2, in respect of which time is of the essence, then the application for leave to appeal is to be dismissed with costs.
5.In the event that payment is made in accordance with order 2, then the parties have leave to approach the Associate to Lee J in Chambers to obtain a hearing date for the application for leave to appeal.
6.On or by 31 July 2019, the applicant file any affidavit explaining the…
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- Case
- [2019] FCA 1113
- Decision Date
CaseChat Overview and Summary
The court was tasked with addressing several legal issues. Firstly, it had to consider whether the application for leave to appeal should be dismissed due to the respondents’ contention that the applicant had not complied with certain court orders. Secondly, the court needed to determine whether the applicant's payments of legal fees were made in a manner that adhered to the orders of the court, particularly in light of the applicant's preference to make these payments over complying with other outstanding orders.
The court found that the application for the dismissal of the appeal should be adjourned indefinitely, allowing the applicant time to address the payment issues. The court extended the deadline for payment of certain amounts and required the applicant to pay the respondents' costs associated with the adjournment on an indemnity basis. Furthermore, the court stipulated that if the payments were not made by the extended deadline, the application for leave to appeal would be dismissed with costs. Conversely, if the payments were made on time, the parties could then seek a hearing date for the application. Finally, the applicant was directed to file an affidavit explaining the circumstances of the payments made on specified dates and why those payments were prioritised over others.
In summary, the court's orders provided a structured pathway for the applicant to rectify the payment issues, with significant consequences if the applicant failed to meet the new deadlines. The case underscores the importance of adhering to court orders and the potential ramifications of failing to do so.
Orders
Orders of the court
1. The application of the respondents for the dismissal of the application for leave to appeal be adjourned sine die.
2. The time to pay the amounts referred to in orders 1, 2 and 3 made by consent on 30 May 2019 be extended to 5pm on 31 July 2019.
3. The applicant pay the respondents’ costs thrown away by the adjournment of the application to dismiss the application for leave to appeal, with such costs to be paid on an indemnity basis.
4. In the event that payment does not occur in accordance with order 2, in respect of which time is of the essence, then the application for leave to appeal is to be dismissed with costs.
5. In the event that payment is made in accordance with order 2, then the parties have leave to approach the Associate to Lee J in Chambers to obtain a hearing date for the application for leave to appeal.
6. On or by 31 July 2019, the applicant file any affidavit explaining the circumstances of the payment of amounts for legal fees on 18 May 2019 and 24 June 2019, and why the payment of those accounts were preferred over complying with the then extant orders of the Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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