Luo v Zhai (No 5)

[2015] FCA 774

FEDERAL COURT OF AUSTRALIA

Luo v Zhai (No 5) [2015] FCA 774

Citation:

Luo v Zhai (No 5) [2015] FCA 774

Parties:

XIANGNAN LUO v SUTAO ZHAI and JANTOM FURNITURE PTY LTD ACN 092 171 634 (IN LIQUIDATION)

File number:

NSD 1035 of 2013

Judge:

PERRAM J

Date of judgment:

31 July 2015

Catchwords:

CORPORATIONS – whether leave should be given in respect of proceedings against company being wound up

COSTS – how costs to be allocated – whether successful party should bear portion of costs

Legislation:

Corporations Act 2001 (Cth) ss 439C, 440D, 446A, 500

Date of hearing:

28 July 2015

Place:

Sydney

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Applicant:

Mr C King

Solicitor for the Applicant:

Australian International Lawyers

Counsel for the Respondents:

Mr A Norrie

Solicitor for the Respondents:

Jurisbridge Legal

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1035 of 2013

BETWEEN:

XIANGNAN LUO
Applicant

AND:

SUTAO ZHAI
First Respondent

JANTOM FURNITURE PTY LTD ACN 092 171 634 (IN LIQUIDATION)
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	31 JULY 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to s 500(2) of the Corporations Act 2001 (Cth), leave be granted to continue these proceedings against the second respondent.

2.The application against the second respondent be dismissed.

3.The applicant pay the second respondent’s costs of the proceeding as taxed or agreed.

4.The first respondent pay the applicant’s costs of the proceeding as taxed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1035 of 2013

BETWEEN:

XIANGNAN LUO
Applicant

AND:

SUTAO ZHAI
First Respondent

JANTOM FURNITURE PTY LTD ACN 092 171 634 (IN LIQUIDATION)
Second Respondent

JUDGE:	PERRAM J
DATE:	31 JULY 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I delivered judgment in favour of the applicant (‘Mr Luo’) in these proceedings, insofar as the first respondent (‘Ms Zhai’) was concerned, on 17 April 2015.  I had apprehended that the second respondent (‘Jantom’) was in administration at [90] of Luo v Zhai [2015] FCA 350 (‘the primary judgment’) and declined to make orders dealing with the case against it on the basis that the proceedings concerning it were stayed. It now transpires that it was already in liquidation by that time. The issue of costs requires determination, but there remains an anterior question concerning the proceedings against Jantom.

2. At the hearing on 28 July 2015, Mr Norrie of counsel, who appeared for Ms Zhai, placed reliance on a letter addressed to the Court dated 27 July 2015 from Messrs Ozem Kassem and Ahmed Sowaid, the liquidators of Jantom, which relevantly stated as follows:

   ‘[W]e wish to advise the Court and his Honour that we, as Liquidators of the Company, consent to the First Defendant and her solicitor or counsel acting for the Company in any application for the costs of the…