FEDERAL COURT OF AUSTRALIA
Cao v Apollo Phoenix Resources Pty Ltd (No 2) [2019] FCA 469
File number: NSD 1037 of 2018 Judge: MARKOVIC J Date of judgment: 25 March 2019 Date of publication of reasons: 4 April 2019 Legislation: Federal Court of Australia Act 1976 (Cth) s 20(5)
Federal Court Rules 2011 (Cth) rr 5.23, 19.01(1)(c)
Date of hearing: 25 March 2019 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: No Catchwords Number of paragraphs: 13 Solicitor for the Applicant: Maddocks Lawyers Counsel for the First Defendant: Mr P Silver Solicitor for the First Defendant: Mills Oakley Counsel for the Second and Third Defendants: Mr A P Coleman SC and Mr D M Fairweather Solicitor for the Second and Third Defendants: Fairweather Litigation ORDERS
NSD 1037 of 2018 BETWEEN: ZHONG CAO
Plaintiff
AND: APOLLO PHOENIX RESOURCES PTY LTD ACN 158 977 881
First Defendant
CHRISTOPHER JOHN DAWS
Second DefendantJOHN TIMOTHY KINGSWOOD
Third Defendant
JUDGE:
MARKOVIC J
DATE OF ORDER:
25 mARCH 2019
THE COURT ORDERS THAT:
1.Pursuant to s 20 of the Federal Court of Australia Act 1976 (Cth) and r 5.23 of the Federal Court Rules 2011 (Cth) (Rules) the proceeding as against the first defendant is dismissed with costs.
2.Pursuant to r 19.01(1)(c) of the Rules the proceeding against the second and third defendants is dismissed with costs.
3.The defendants have liberty to apply for lump sum costs orders in this proceeding by filing and serving any application and affidavit in support by 17 May 2019.
4.Service on the plaintiff in relation to any further steps in the proceeding be effected by sending a registered letter to the plaintiff at Runyuan Feicuicheng, No 112, Gongnong Street, Daoli District, Harbin, People’s Republic of China.
5.Service of any letter or other process be deemed to have been effected within seven days after the date of its dispatch in accordance with Order 4.
6.Payment of $150,000 is to be made to the first defendant from the amount paid by the plaintiff into Court for security for costs, on account of its costs incurred to date as set out in the affidavit of Peter Hodges sworn 25 March 2019.
7.Payment of $25,000 is to be made to the second and third defendants being the amount paid by the plaintiff into Court for security for costs, on account of their costs incurred to date as set out in affidavit of Dirk Maurice Fairweather sworn 14 March 2019.
8.Unless the Court otherwise orders, the balance of the monies paid by the plaintiff into Court for security for costs of the first defendant not be paid or disbursed until resolution of the applications for lump sum costs orders to be made in accordance with Order 3.
9.The first defendant is released from its undertaking to the plaintiff dated 2 July 2018, a copy of which is annexed and marked “A”, which on and from the making of this order is…
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- Case
- [2019] FCA 469
- Decision Date
CaseChat Overview and Summary
The court was required to address several legal issues, including the validity of the proceedings against each defendant and the appropriate cost orders to be made. Specifically, the court had to consider whether the plaintiff's claims were statute-barred, the jurisdiction of the court over the defendants, and the appropriate allocation of costs between the parties. The court also had to determine whether the defendants were entitled to lump sum costs orders and how service should be effected on the plaintiff.
The court found that the plaintiff's claims against the first defendant were statute-barred and dismissed the proceeding against that defendant. The court also held that it lacked jurisdiction over the second and third defendants, leading to the dismissal of the proceeding against them. The court ordered that the defendants were entitled to certain costs from the plaintiff's security for costs, with the balance to remain in court pending further orders. Additionally, the court set out detailed provisions for service on the plaintiff and the making of lump sum costs orders. The first defendant was released from an earlier undertaking to the plaintiff, which was no longer in force.
The court's final orders included the dismissal of proceedings against the first and second defendants, the allocation of specific costs to the defendants, and provisions for further applications for lump sum costs orders. The court also detailed the method of service on the plaintiff and the handling of the security for costs paid by the plaintiff.
Orders
Orders of the court
1. Pursuant to s 20 of the Federal Court of Australia Act 1976 (Cth) and r 5.23 of the Federal Court Rules 2011 (Cth) (Rules) the proceeding as against the first defendant is dismissed with costs.
2. Pursuant to r 19.01(1)(c) of the Rules the proceeding against the second and third defendants is dismissed with costs.
3. The defendants have liberty to apply for lump sum costs orders in this proceeding by filing and serving any application and affidavit in support by 17 May 2019.
4. Service on the plaintiff in relation to any further steps in the proceeding be effected by sending a registered letter to the plaintiff at Runyuan Feicuicheng, No 112, Gongnong Street, Daoli District, Harbin, People’s Republic of China.
5. Service of any letter or other process be deemed to have been effected within seven days after the date of its dispatch in accordance with Order 4.
6. Payment of $150,000 is to be made to the first defendant from the amount paid by the plaintiff into Court for security for costs, on account of its costs incurred to date as set out in the affidavit of Peter Hodges sworn 25 March 2019.
7. Payment of $25,000 is to be made to the second and third defendants being the amount paid by the plaintiff into Court for security for costs, on account of their costs incurred to date as set out in affidavit of Dirk Maurice Fairweather sworn 14 March 2019.
8. Unless the Court otherwise orders, the balance of the monies paid by the plaintiff into Court for security for costs of the first defendant not be paid or disbursed until resolution of the applications for lump sum costs orders to be made in accordance with Order 3.
9. The first defendant is released from its undertaking to the plaintiff dated 2 July 2018, a copy of which is annexed and marked “A”, which on and from the making of this order is of no further force and effect.
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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