Diamond Hill International Pty Ltd v Xu

[2000] FCA 465

FEDERAL COURT OF AUSTRALIA

Diamond Hill International Pty Ltd v Xu [2000] FCA 465

DIAMOND HILL INTERNATIONAL PTY LTD V HUMPHREY JIAN XU (IN THE MATTER OF HUMPHREY JIAN XU)

N 8059 OF 1999

HELY J
29 MARCH 2000
SYDNEY

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

BETWEEN:	DIAMOND HILL INTERNATIONAL PTY LIMITED APPLICANT
AND:	HUMPHREY JIAN XU RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	29 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The matter be adjourned to 9.30 am on 3 April 2000 for further directions.

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 LIMITED APPLICANT
AND:	HUMPHREY JIAN XU RESPONDENT

JUDGE:	HELY J
DATE:	29 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When this matter came before me this morning Mr Stevens, senior counsel for the respondent, sought an adjournment of the proceedings for a period of six to eight weeks or thereabouts on a number of grounds, one of which was that the respondent is currently overseas. 

2. For reasons which it is not necessary for me to go into at the moment, that is an application which I would have refused but for two things.  One is that it appears that the respondent is overseas in China and that his absence may be connected with the ill health of his father.  The second is that at the conclusion of the argument Miss Ying Zheng offered an undertaking to the court to pay by bank cheque, in favour of the solicitors for the applicant, the sum of $5,000 representing the costs of and thrown away by the adjournment.  This is to be paid by 5:00 pm on 31 March 2000.  It is accepted that the sum of $5,000 is an appropriate sum and that Miss Zheng's undertaking to the Court can be taken at face value. 

3. In those circumstances I am prepared to adjourn the matter to 9.30 am on Monday 3 April for the purpose, firstly, of ensuring compliance with that undertaking and secondly, of obtaining some more meaningful evidence as to the circumstances of the respondent's departure for China, the circumstances of his intended return and the future conduct of these proceedings.  I am particularly concerned because Madgwick J gave directions for the further conduct of these proceedings on 7 December 1999 which have simply been ignored and no explanation for non compliance with those directions has been established by the evidence. 

4. I am not going to put this Court in a position where it is going to be dictated to by the respondent's refusal to comply with Court directions and by his choice to absent himself from the jurisdiction.  However, given the seriousness of the consequences of a refusal of the adjournment and the protection which is afforded to the applicant's position by the undertaking given by Miss Zheng, I am prepared to adjourn the matter until next Monday. 

5. So on the undertaking of Miss Ying Zheng to the Court to pay by bank cheque in favour of the solicitors for the applicant the sum of $5,000 by 31 March 2000 I will adjourn the proceedings for further directions until 9.30 am on 3 April 2000.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            19 April 2000

Counsel for the Applicant:	Mr J Johnson
Solicitor for the Applicant:	Dixon Holmes du Pont Lawyers
Counsel for the Respondent:	Mr C Stevens QC
Solicitor for the Respondent:	Parish Patience Solicitors
Date of Hearing:	29 March 2000
Date of Judgment:	29 March 2000