Xu v Rose

[2006] FMCA 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XU & ANOR v ROSE & ANOR [2006] FMCA 85

BANKRUPTCY – Leave – application for leave – where applicants obtained judgment in Supreme Court of NSW.

Bankruptcy Act 1966 (Cth), s.58

First Applicant: XIAN KUN XU

Second Applicant: GUI ZHI CHI

First Respondent: JOHN EMMANUEL ROSE

Second Respondent: POPI ROSE

File Number: SYG 3595 of 2005

Judgment of: Scarlett FM

Hearing date: 24 January 2006

Date of Last Submission: 24 January 2006

Delivered at: Sydney

Delivered on: 24 January 2006

REPRESENTATION

Solicitors for the Applicant: Mr Lin
Accentro Legal

Respondents: No appearance

ORDERS

1. Applicant have leave under s.58(3)(b) of the Bankruptcy Act 1966 to take further steps in and to continue to completion proceedings No. 2352 of 2002 in the Supreme Court of NSW.

2. Respondents are to pay the Applicant’s costs of the application as assessed or taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3595 of 2005

XIAN KUN XU

First Applicant

GUI ZHI CHI

Second Applicant

And

JOHN EMMANUEL ROSE

First Respondent

POPI ROSE

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an application under s.58(3) of the Bankruptcy Act 1966 for leave to take further steps in and to continue to completion proceedings in the Supreme Court of New South Wales.

2. There has been no appearance by or on behalf of the Respondents although I am satisfied as to service.

Background

1. The applicants commenced proceedings against the respondents in the Equity Division of the Supreme Court of New South Wales seeking the following:

   a)A declaration that a contract of sale between the applicants as purchasers and the respondents as vendors dated 24^th September 2001 was validly rescinded;

   b)A declaration that the applicants were entitled to the return of the deposit of $33,500.00 paid under the contract together with interest;

   c)An order that the respondents do all things necessary to enable the return of the deposit with interest to the applicants;

2. On 12^th July 2004 in the Equity Division of the Supreme Court, Palmer J gave judgment in favour of the applicants. The Supreme Court made declarations and orders to the following effect:

   a)The contract of sale of the land referred to in the schedule between the Plaintiffs (i.e. the applicants in these proceedings) as purchasers and the Defendants as vendors was validly rescinded.

   b)The Plaintiffs are entitled to the return of the deposit of $33,500.00 paid under the contract with interest thereon.

   c)The Defendants to pay to the Plaintiffs the deposit paid under the contract together with interest.

   d)The Defendants to pay the Plaintiffs’ costs.

3. The Court made a further order that day requiring the defendants to pay the sum of $33,500.00 into Court to abide the final determination of the proceedings. Costs were ordered on an indemnity basis.

4. The respondent John Rose later went into voluntary bankruptcy.

5. A costs review panel issued a Certificate as to Determination of Costs on 12^th August 2005. The costs were determined at $25,788.70.

6. I am satisfied from the affidavit of Lawrence Liwei Lin, solicitor that the respondents and the solicitors for the Trustee have been made aware of the proceedings and have been properly served.

7. There has been no appearance by or on behalf of the respondents in the proceedings.

8. I propose to grant the application with costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S.Polley

Date:  27 January 2006