Unilin Beheer BV v Huili Building Materials Pty Limited

[2007] FCA 1683

FEDERAL COURT OF AUSTRALIA

Unilin Beheer BV v Huili Building Materials Pty Limited [2007] FCA 1683

UNILIN BEHEER BV v HUILI BUILDING MATERIALS PTY LTD, BAO JIA SUN, GONG DAO ZHANG, HUILI AUSTRALIA TRADING PTY LTD, GREMOS HOLDINGS PTY LTD AND HUILI FLOORING PTY LTD
NSD 2329 OF 2005

ALLSOP J
2 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2329 OF 2005

BETWEEN:

UNILIN BEHEER BV
Applicant

AND:

HUILI BUILDING MATERIALS PTY LTD
First Respondent

BAO JIA SUN
Second Respondent

GONG DAO ZHANG
Third Respondent

HUILI AUSTRALIA TRADING PTY LTD
Fourth Respondent

GREMOS HOLDINGS PTY LTD
Fifth Respondent

HUILI FLOORING PTY LTD
Sixth Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	2 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Orders (1), (2), (3) and (4) made on 24 October 2007 be varied by:

(a)    In order (1), inserting after the word “first” a comma and the words “second and third” and adding a letter “s” to the word “respondent,”;

(b)    In order (2), adding a letter “s” to the word “respondent” and by substituting the sum of $170,482.18 in place of the sum 317,270.22;

(c)    In order (3), inserting prior to the word “fourth” the words “second, third and” and adding the letter “s” to the word “respondent,”

(d)   In order (4), by inserting prior to the word “sixth” the words “second, third and” and adding the letter “s” to the word “respondent.”

THE COURT DIRECTS THAT:

2.A consolidated version of the orders made on 24 October 2007 as amended by order (1) above be filed by the applicant and entered and sealed in the registry.

THE COURT ORDERS THAT:

3.The time for filing and serving any notice of appeal be extended up to and including 23 November 2007.

4.If any respondent now wishes to make any application in relation to any matter in these proceedings against the fifth respondent, it is to be brought by notice of motion, supported by affidavit evidence and served on the fifth respondent and the solicitors on the record for the fifth respondent, such motion is to be filed and served on or before Friday, 16 November 2007, to be returnable for directions on Friday, 23 November at 2.15 pm. 

5.The applicant is excused from attendance at directions on 23 November 2007, unless notified that its interests are affected.

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	NSD 2329 OF 2005

BETWEEN:

UNILIN BEHEER BV
Applicant

AND:

HUILI BUILDING MATERIALS PTY LTD
First Respondent

BAO JIA SUN
Second Respondent

GONG DAO ZHANG
Third Respondent

HUILI AUSTRALIA TRADING PTY LTD
Fourth Respondent

GREMOS HOLDINGS PTY LTD
Fifth Respondent

HUILI FLOORING PTY LTD
Sixth Respondent

JUDGE:	ALLSOP J
DATE:	2 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I listed this matter today for the making of any application which arose out of the orders that I made on 24 October 2007, supported by the reasons I gave on that day.  Prior to making orders and pronouncing my reasons on 24 October 2007, I circulated to the parties a document in substantially identical terms to paragraphs 1 through to 66 of those reasons under cover of a letter from my associate.  The terms of the letter from my associate were as follows:

   Justice Allsop is currently finalising the judgment on account of profits.  At the hearing on 4 July 2007, Justice Allsop said the following:

   What I will do is reserve my decision on the applicant’s claim for an account of profits.  Parties will be notified in due course as to the date for judgment.  I will also in the coming days have my associate write to all the parties.  That will be a letter in which my associate sets out on my instructions the course of this hearing, what has happened and the extent to which there may still be issues unresolved between the parties to the litigation.  That will or may crystallise whether there are any issues to be dealt with between the first, fourth and sixth respondents on the one hand and the fifth respondent on the other, bearing in mind that by reason of default of appearance and default of orders, orders were made in November last year on the cross-claim of the fifth respondent in the absence of the first to fourth and sixth respondents in default of their appearance and in default of orders that were made.  My reasons for judgment deal with those matters.

   The letter that I will send to the parties  including the fifth respondent will identify the course of the proceedings thus far and invite any interested party to attend a directions hearing to address me as to whether there is anything further and the extent to which there is anything further to be dealt with between the fifth respondent on the one hand and the first to fourth and sixth respondents on the other.  The matter that is before me today, being the primary claim of the applicant against the first to fourth and sixth respondents, has now been heard and I reserve my decision and I will give judgment as soon as I am able.

   It was not possible to send a letter the following week.  Justice Allsop has prepared a detailed history of the matter, which is attached hereto.  If any party wishes to agitate any issue that is said to remain to be litigated or which the parties wish to raise, a directions hearing will be conducted on Friday, 2 November 2007 at 9:30 am.  The first to fourth and sixth respondents should particularly take note of the last three paragraphs.  At present, it is intended that judgment on the applicant’s claim for an account of profits will be handed down on Wednesday, 24 October 2007 at 2:15 pm.  The parties should assume that that matter is listed on both these days for the purposes identified above.

2. The purpose of taking that course was to set out for the parties, in particular those who were unrepresented, the full detailed history of this litigation, including the importance of the events of last November when orders were made about infringement.  I published my reasons and pronounced orders on 24 October 2007 and set the matter down today for any application.  The judgment and orders were sent to all the parties at their numerous addresses, including their solicitors, and including the fifth respondent at its solicitor’s address.

3. In [65] and [66] of my reasons, which were substantively identical to the contents sent to the parties on 15 October, I said the following:

   If the first to fourth respondents wish to agitate any aspect of the position against the fifth respondent, whether in relation to the orders made on 29 November or 22 March 2007 as between the applicant and the fifth respondent or in relation to the first respondent’s cross-claim, this should be done promptly. 

   Any such application would need to be brought by motion and with evidence.  It should not be thought that in the light of the conduct of this matter to date by the respondents I would necessarily permit any company to appear otherwise than by a solicitor.  It should be noted that order 35 rule 7(2)(a) is in the following terms.

   I then set out the terms of that order.

4. In [84] and following in my reasons, I discussed the submission put by the first to fourth and sixth respondents, whom I referred to in my reasons as the Huili respondents, based on the fact that they asserted a lack of payment by the fifth respondent of various invoices.  In that discussion I said in [90]: “it may well be that these issues have to be resolved between the Huili respondents and the fifth respondents in any residual hearing on the cross-claim.  I will put the matter in the list for directions to ascertain whether the parties still wish to agitate these matters”.

5. Having put the matter in the list today, Mr Dimitriadis, on behalf of the respondent, raised a matter which I will now deal with.  No other application has been made, other than an indication that an appeal will be brought.  I should add that the fifth respondent has not sought to appear on today’s directions hearing, notwithstanding the fact that it was notified of it. 

6. Mr Dimitriadis suggested that the orders that I made were unduly favourable to the applicant.  He indicated that he thought that separate orders should be made in relation to the individual sums.  These draft orders were handed to me during the course of the hearing.  I took the view that the orders that I made were more appropriately expressed.  Mr Dimitriadis has suggested to me this morning that orders (1) through to (4) should be amended to reflect the nature of the orders sought at the hearing.  Given that the first, second, third, fourth and sixth respondents are not represented, and given the applicant’s view that it may be seen to be less favourable to the applicant to have the variation, I am prepared to accede to the desire of the applicant to have the orders made in a different form, that is, a form which they say is less favourable to them. 

7. For those reasons, I am prepared to accommodate the desire of the applicant to have the order in the form it wishes, in particular if it may alleviate any suggestion that the orders made against the first, second, third, fourth and sixth respondent were more than they were entitled to and more than they wanted.  Given that there are no other applications today, notwithstanding the opportunity that I have given the parties, I will make those orders as the applicant wishes them to be varied.  I should add today that once again I permitted Mr Sun to appear not only for himself but on behalf of the corporate respondents with which he has an interest, that is, the first, fourth and sixth respondents.

8. As I understand the position, there is no appearance for the third respondent.  Mr Sun was assisted by his daughter and I am grateful for her attendance and her assistance.  If there is no other application to be brought, it only remains for me to tidy up the orders in the fashion that the applicant desires and in fairness to the first, second, third, fourth and sixth respondents I will extend the time for filing and serving a notice of appeal to a day 21 days from today, thereby ignoring the time that has passed from 24 October 2007 to today.  I will nominate a date which will be the last date upon which the document may be filed as of right without the need for leave.

9. The orders that I make therefore today are as follows:

   THE COURT ORDERS THAT:

   1.Orders (1), (2), (3) and (4) made on 24 October 2007 be varied by:

   (a)    In order (1), inserting after the word “first” a comma and the words “second and third” and adding a letter “s” to the word “respondent,”;

   (b)    In order (2), adding a letter “s” to the word “respondent” and by substituting the sum of $170,482.18 in place of the sum 317,270.22;

   (c)    In order (3), inserting prior to the word “fourth” the words “second, third and” and adding the letter “s” to the word “respondent,”

   (d)   In order (4), by inserting prior to the word “sixth” the words “second, third and” and adding the letter “s” to the word “respondent.”

   THE COURT DIRECTS THAT:

   2.A consolidated version of the orders made on 24 October 2007 as amended by order (1) above be filed by the applicant and entered and sealed in the registry.

   THE COURT ORDERS THAT:

   3.The time for filing and serving any notice of appeal be extended up to and including 23 November 2007.

   4.If any respondent now wishes to make any application in relation to any matter in these proceedings against the fifth respondent, it is to be brought by notice of motion, supported by affidavit evidence and served on the fifth respondent and the solicitors on the record for the fifth respondent, such motion is to be filed and served on or before Friday, 16 November 2007, to be returnable for directions on Friday, 23 November at 2.15 pm. 

   5.The applicant is excused from attendance at directions on 23 November 2007, unless notified that its interests are affected.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:       8 November 2007

Counsel for the Applicant:	C Dimitriadis
Solicitor for the Applicant:	Davies Collison Cave
The Second Respondent appeared in person for himself, and with leave for the First, Fourth and Sixth Respondents.
Date of Hearing:	2 November 2007
Date of Judgment:	2 November 2007