Yang v American International Assurance Company(Australia) Limited

[2007] FCA 994

FEDERAL COURT OF AUSTRALIA

Yang v American International Assurance Company (Australia) Limited [2007] FCA 994

JUN YANG AND AULIAN ENTERPRISE PTY LIMITED v AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED
NSD 97 OF 2005

COWDROY  J
8 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 97 OF 2005

BETWEEN:

JUN YANG
First Applicant

AULIAN ENTERPRISE PTY LIMITED
Second Applicant

AND:

AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED
Respondent

JUDGE:	COWDROY  J
DATE OF ORDER:	8 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The hearing is confirmed to commence on 27 August 2007.

2.The evidence to be relied upon by the applicants is that contained in their affidavits filed to date.

3.The respondent have until Monday 16 July 2007 to file any affidavits in response.

4.The applicants have until Monday 30 July 2007 to file any evidence in reply to the respondent’s evidence.

5.The costs of the respondent’s motion to strike out the proceedings be reserved.

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 97 OF 2005

BETWEEN:

JUN YANG
First Applicant

AULIAN ENTERPRISE PTY LIMITED
Second Applicant

AND:

AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED
Respondent

JUDGE:	COWDROY  J
DATE:	8 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a resumed hearing of a motion filed on 16 May 2007 by the respondent. In that motion orders are sought including that the proceedings be dismissed pursuant to Order 20 Rule 2(c) of the Federal Court Rules upon the basis that the proceedings constitute an abuse of process of the Court. The hearing of the motion took place on 28 May 2007. In summary the motion was brought because of the persistent failure of the applicants to file the evidence upon which they rely in support of their applications. The relevant facts are set out in the Court’s decision given on 28 May 2007: see Yang v American International Assurance Company (Australia) Limited [2007] FCA 993.

2. As affidavits have been filed, it would be inappropriate for the Court to dismiss the proceedings. Accordingly the matter will proceed to hearing on 27 August 2007 on the basis only of the evidence of the applicants which is now before the Court. There is, however, of course the possibility that evidence in reply to any affidavits of the respondent may be required. The Court will make an order in relation to the provision of such evidence.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy .

Associate:

Dated:        8 June 2007

Counsel for the Applicant:	I. Archibald
Solicitor for the Applicant:	Accentro Legal
Counsel for the Respondent:	B. Shields
Solicitor for the Respondent:	Ebsworth & Ebsworth
Date of Hearing:	8 June 2007
Date of Judgment:	8 June 2007