Diamond Hill International Pty Limited v Xu - [1999] NSWSC 783

NEW SOUTH WALES SUPREME COURT

CITATION: Diamond Hill International Pty Limited v Xu [1999] NSWSC 783

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 2017/98

HEARING DATE{S): 26 July 1999

JUDGMENT DATE: 26/07/1999
PARTIES:

Diamond Hill Internation Pty Limited (P)
Humphrey Xu (D)

JUDGMENT OF: Master McLaughlin

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr. S. W. Climpson (P)
Mr. P. Huntington (D)

SOLICITORS:
Donald Junn (P)
Eric Fung & Co (D)

CATCHWORDS:

ACTS CITED:

DECISION:

JUDGMENT:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 26 July 1999

2017/98DIAMOND HILL INTERNATIONAL PTY LIMITED -v- HUMPHREY JIAN XU

JUDGMENT

MASTER: There is presently before me a notice of motion filed on behalf of the defendant, Humphrey Xu, on 5 July 1999. That notice of motion seeks, substantively, an order that the orders which were made by myself on 1 July 1999 be set aside.
It is necessary for me to refer, at least in summary, to the procedural history of this matter. On 10 May 1999 Bergin J, sitting as duty Judge in the Equity Division, delivered an oral ex tempore judgment after a hearing occupying three days.
At that hearing each of the plaintiffs and the defendant was represented by Senior Counsel and Junior Counsel. Her Honour indicated that the plaintiff was entitled to orders for relief, including injunctive relief, in relation to a property known as 52 Sugarloaf Crescent, Castlecrag. The formal orders were pronounced by her Honour the following day, 11 May 1999, apparently after counsel had prepared short minutes of order and had agreed upon the terms of those short minutes as reflecting the orders which on 10 May had been indicated by her Honour. The orders were entered on 13 May 1999.
I have been informed that at the conclusion of her Honour's reasons for judgment on 10 May an application was made to her Honour by the defendant for a stay. Her Honour was disposed to grant a stay only until 13 May. In the meantime, however, on 12 May 1999 the defendant filed a notice of motion. That notice of motion sought substantively the following orders:
(1)The orders by Bergin J made on 10 May 1999 be set aside or alternatively varied pursuant to Part 40 rule 9.
(2)Alternatively that the orders made by Bergin J on 10 May 1999 be stayed for a period of 21 days.
I have been informed that the defendant also has instituted an appeal (described as a holding appeal) but that no application has been made to the Court of Appeal for a stay of the orders of her Honour. The notice of motion filed by the defendant on 12 May 1999 was returnable on 27 May 1999 and thereafter was adjourned on several occasions by the Registrar.
The matter was on 17 June 1999 stood over by the Registrar to 1 July 1999. On that latter date the plaintiff, Diamond Hill International Pty Limited, was represented but the defendant was not represented upon its own motion. The plaintiff therefore had the matter referred to the Duty Master in the Equity Division for the purpose of having the motion dismissed.
I was the Duty Master on that day and in the absence of any representative of the defendant in support of the defendant's own notice of motion I made the following orders dismissing that notice of motion, which the plaintiff requested should be made:
(1)Order that the notice of motion filed by the defendant on 12 May 1999 be dismissed.
(2)Order that the defendant pay the costs of the plaintiff of the aforesaid notice of motion, such costs to be on the indemnity basis.
(3)Grant leave to the plaintiff to proceed forthwith to assessment of the foregoing costs.
The defendant now seeks to have those orders set aside. A considerable quantity of affidavit and other material has been placed before the Court upon the hearing of the present application. However the material relevant to that application, being material essential to the defendant for the application to succeed, is skimpy in the extreme. It consists of no more than two sentences in the affidavit of Mr George Yip, the solicitor for the defendant, sworn on 23 July 1999. In paragraph 26(d) Mr Yip says:
"After the appearance of 17 June I received advice from counsel that the matter had been next listed for 1 July. However, I overlooked this and such oversight was not corrected by my discussions with counsel and we both proceeded as if this matter was next beforethe [sic] court on 2 July also."
No evidence has been placed before the Court as to why Mr Yip did not make some record of the matter being listed on 1 July, and, significantly, no evidence has been placed before the court as to why Counsel who had informed Mr Yip of the date was not present on 1 July. I have been told from the Bar table by Counsel presently appearing before me that he also overlooked the date.
It has been submitted that, if the Court does not set aside the order made on 1 July dismissing the application of the defendant, the defendant will be precluded from pursuing the application in accordance with the provisions of Part 40 rule 9. That Part provides for the setting aside or varying of a judgment or order, and specifically empowers the Court to set aside or vary a judgment where notice of motion for the setting aside or variation is filed before the entry of judgment.
In the present circumstances the notice of motion seeking the setting aside or variation of the orders of Bergin J outlined on 10 May and pronounced on 11 May was filed on 12 May before the entry of judgment, which took place on 13 May.
I would not wish to pre-empt any decision by either Bergin J or any other Judge who might be the Duty Judge in the Equity Division, but the submissions which have been made to me concerning the likelihood of her Honour's orders being set aside or varied seem to me to proceed with scant regard to the nature of the hearing before her Honour, to the fact that the ex tempore judgment covers some 32 pages, and to the fact that her Honour has the assistance of two Senior Counsel and two Junior Counsel at the hearing before her.
To suggest, as has now been done on behalf of the defendant, that her Honour might have overlooked certain matters and that the circumstances had changed between the delivery of her Honour's judgment on 10 May and the filing of the notice of motion on 12 May, does not in my view constitute a strong ground, or indeed any ground at all, for a conclusion that it is likely that the defendant would succeed in obtaining the setting aside or variation of her Honour's orders. But, in any event, there is no procedural bar to the defendant seeking a stay of her Honour's orders either from the Duty Judge in the Equity Division or from the Court of Appeal. It seems to me to be not without significance that the defendant, having instituted an appeal, has chosen not to seek a stay from the Court of Appeal.
Even if the dismissal of the defendant's notice of motion of 12 May 1999 remains in force the defendant is not precluded from seeking a stay either in the Division or from the Court of Appeal.
I have referred to the skimpiness of the evidence explaining the absence of the defendant from being represented upon the hearing of its own application. In truth, there is no adequate explanation whatsoever. Were I to consider that there was any substance in the notice of motion of 12 May or any likelihood that it would succeed, it may well be that I would set aside my orders dismissing that notice of motion. I can see no such substance. There is no real explanation for the absence of the representation of the defendant on 12 July. I propose to dismiss the present application.
I make the following orders:
(1)I order that the notice of motion filed by the defendant on 5 July 1999 be dismissed.
(2)I order the defendant pay the costs of the plaintiff of the aforesaid notice of motion.
(3)I grant leave to the plaintiff to proceed forthwith to assessment of the foregoing costs.

LAST UPDATED: 30/09/1999