Diamond Hill International Pty Ltd v Xu

[2000] FCA 892

FEDERAL COURT OF AUSTRALIA

Diamond Hill International Pty Ltd v Xu [2000] FCA 892

DIAMOND HILL INTERNATIONAL PTY LTD v HUMPHREY JIAN XU

N 8059 OF 1999

HELY J
21 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8059 OF 1999

BETWEEN:	DIAMOND HILL INTERNATIONAL PTY LTD APPLICANT
AND:	HUMPHREY JIAN XU RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	21 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant pay to Eric Fung & Co, Parish Patience Solicitors, Clarence J Stevens QC and Peter J W Huntingdon, an amount to be agreed or assessed by an appropriate court officer to compensate each of them for expenses reasonably incurred by each of them in complying with subpoenas for production issued by the petitioner on or about 14 March 2000.

2.A sequestration order be made against the estate of Humphrey Jian Xu.

3.The respondent pay the applicant’s costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8059 OF 1999

BETWEEN:	DIAMOND HILL INTERNATIONAL PTY LTD APPLICANT
AND:	HUMPHREY JIAN XU RESPONDENT

JUDGE:	HELY J
DATE:	21 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I order that Diamond Hill International Pty Ltd pay to Eric Fung & Co, Parish Patience Solicitors, Clarence J Stevens QC and Peter J W Huntington, an amount to be agreed or assessed by an appropriate court officer to compensate each of them for expenses reasonably incurred by each of them in complying with subpoenas for production issued by Diamond Hill International Pty Ltd on or about 14 March 2000.

2. This matter was originally fixed for hearing on 29 March 2000.  On that occasion, for reasons which I then gave, I reluctantly agreed to an adjournment of the matter.  The matter came on before me again on 3 April 2000, when Mr Xu was represented by Parish Patience, Solicitors, and by Mr Stevens QC.  On that occasion I gave various procedural directions and set the matter down for hearing in the period 21 to 23 June 2000.

3. On 13 June 2000 Messrs Parish Patience filed a Notice of Ceasing to Act as Solicitor.  In consequence of this, and by way of more abundant precaution, the applicant's solicitors wrote to Mr Xu on 16 June advising that they proposed to proceed with the hearing of the petition on 21 June.  In response to that letter Mr Junn, the solicitor for the applicant, received a phone call from a lady identifying herself as Mr Xu's wife, in which she acknowledged receipt of that letter and claimed that Mr Xu was in China and that she did not know when he was going to return to this country.

4. When the matter was called on for hearing this morning Mr Xu did not appear.  In my view, Mr Xu has been given more than adequate opportunity to appear and to contest these proceedings and to make good, if he can, the matters specified in his notice of opposition.  I see no reason why the matter should not proceed this morning.

5. The applicant has read the affidavits on which it relies by way of proof of its case.  Based upon those affidavits I am satisfied as to the matters stated in the petition.  I am satisfied as to the service of the petition and I am satisfied as to the fact that the debt on which the petitioning creditor relies is still owing.  It is clear that an act of bankruptcy was committed by the respondent on 10 September 1999 and that the applicant is prima facie entitled to the relief which it seeks.

6. The debtor has not satisfied me of any of the matters referred to in s 52(2) of the Bankruptcy Act 1958 (Cth). In those circumstances I make a sequestration order against the estate of Humphrey Jian Xu and I order that the petitioner's costs, including reserved costs, be taxed and paid in accordance with the statute.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             3 July 2000

Counsel for the Applicant:	Mr J Johnson
Solicitor for the Applicant:	Dixon Holmes du Pont
The respondent did not appear
Date of Hearing:	21 June 2000
Date of Judgment:	21 June 2000