Zhang, in the matter of an application by Zhang

[2023] FCA 514

FEDERAL COURT OF AUSTRALIA

Zhang, in the matter of an application by Zhang [2023] FCA 514  

File number(s):

NSD 323 of 2023

Judgment of:

JACKMAN J

Date of judgment:

15 May 2023

Catchwords:

PRACTICE AND PROCEDURE – where no appearance by any party – where material filed does not disclose a reasonable cause of action – proceedings dismissed  

Legislation:

Corporations Act 2001 (Cth) ss 236, 237

Federal Court Rules 2011 (Cth) r 4.01

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Corporations and Corporate Insolvency

Number of paragraphs:

4

Date of hearing:

15 May 2023

Counsel for the Applicant:

The Applicant did not appear.

 

ORDERS

NSD 323 of 2023

ZONGQI ZHANG

Applicant

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

15 MAY 2023

THE COURT ORDERS THAT:

1.The proceedings be dismissed.

2.The applicant pay the respondent’s costs of the proceedings.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

JACKMAN J:

1. This matter came before Yates J as the Commercial and Corporations Duty Judge on 17 April 2023, on which occasion his Honour listed the matter for case management on 19 April 2023. On that occasion, the applicant appeared in person. The application concerns the applicant’s claim that the property of Shunli Food Pty Ltd (of which the applicant claims to be director) was improperly transferred by its other director (Sun Shunli) in breach of his duties as a director.

2. The claim in this regard appears to be the company’s claim, not the applicant’s claim. At the case management hearing, Yates J directed the applicant’s attention to the requirements of ss 236 and 237 of the Corporations Act 2001 (Cth) (the Act) and r 4.01(2) of the Federal Court Rules 2011 (Cth) (the Rules). Yates J explained to the applicant that the proceeding in respect of the company’s claim could only proceed in the name of the company, that leave will be required under s 237 of the Act, and that the company could only appear by a lawyer, unless the requirement of r 4.01(2) of the Rules was dispensed with. Yates J indicated that his Honour did not think that this was an appropriate case for dispensation with that requirement. Yates J suggested that the applicant needed legal advice and assistance in advancing the company’s claim.

3. On that occasion, the applicant said that he would seek legal advice and asked for three weeks to enable that to be done. On the basis of that request, Yates J made an order that the application be listed for further case management on 15 May 2023 at 9.30 am. Accordingly, the matter came before me this morning for further case management.

4. There has been no appearance before me today by either party, despite the matter having been called outside the Court. The claim, on its face, appears to me to be hopelessly bad in law, and there is no reason why these proceedings should occupy the valuable resources of the Court any longer. In the absence of any appearance by either party, and in view of the fact that no reasonable cause of action is disclosed in the material that has been filed, I dismiss the proceedings.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Associate:

Dated:       23 May 2023