Zhong v Shield Resources Pty Ltd - [2022] NSWSC 553

Supreme Court

New South Wales

Medium Neutral Citation: Zhong v Shield Resources Pty Ltd & Ors [2022] NSWSC 553
Hearing dates: 28 April 2022
Date of orders: 02 May 2022
Decision date: 09 May 2022
Jurisdiction: Common Law
Before: Walton J
Decision:
(1) The hearing dates of 3 May 2022 to 5 May 2022 (inclusive) are vacated.
(2) The Defendants/Cross-claimants are to file and serve all evidence, including lay and expert evidence, in defence of the Statement of Claim and in support of the Cross-Claim by 5:00pm on 26 May 2022.
(3) The Defendants/Cross-claimants are not entitled to rely upon any evidence, (lay or expert, affidavit or document) produced, filed or served after 5:00pm on 26 May 2022 without obtaining the consent of the Plaintiff or the leave of the Court.
(4) The Plaintiff/Cross-defendant is to file and serve all evidence in reply by 23 June 2022.
(5) The Court notes the agreement of the Defendants/Cross-claimants, that any application for security for costs shall not delay their filling of evidence or the fixing of further hearing dates.
(6) The Defendants/Cross-claimants are ordered to pay the Plaintiff his costs thrown away and pre-judgment interest in the event of judgment for the Plaintiff or judgment for the Defence of the Cross-Claim.
(7) The Defendants are to pay the Plaintiff’s costs of the hearing on 28 April 2022 as agreed or assessed.
(8) The proceedings are adjourned to dates to be fixed by the Registrar for:
(a) disposition of the balance of the orders sought on the Notice of Motion filed 12 April 2022 (pursuant to a timetable to be agreed by the parties or fixed by the Court), and
(b) hearing of the substantive claim and Cross-Claim on a three-day estimate.

Catchwords:
PROCEDURE – adjournment application – history of proceedings – interests of justice – concessions made by defendant – guillotine orders – hearing date vacated

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)

Cases Cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130
UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45
Zhong v Shield Resources Pty Ltd [2021] NSWSC 617
Zhong v Shield Resources Pty Ltd (No 2) [2021] NSWSC 643
Zhong v Shield Resources Pty Ltd (unreported, 23 February 2022)

Category: Procedural rulings
Parties: Yuping Zhong (Plaintiff)
Shield Resources Pty Ltd (First Defendant)
Ying Guan (Second Defendant)
Feng Ye (Third Defendant)
Representation:
Counsel:
S Burchett (Plaintiff)
A Kaufmann (First, Second and Third Defendants)
Solicitors:
Juris Cor Legal (Plaintiff)
Rostron Carlyle Lawyers (First, Second and Third Defendants)

File Number(s): 2020/95833

REASONS fOR Judgment

The plaintiff, Mr Zhong (“the plaintiff”), is a businessman who resides in the People’s Republic of China. The first defendant, Shield Resources Pty Ltd (“the first defendant”), is a company dealing with the sale of timber. The third defendant, Mr Feng…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zhong v Shield Resources Pty Ltd

Details

AGLC: Zhong v Shield Resources Pty Ltd [2022] NSWSC 553
Case: [2022] NSWSC 553
Decision Date: 09 May 2022

CaseChat Overview and Summary

The matter of Zhong v Shield Resources Pty Ltd was heard in the Federal Circuit Court of Australia. The case involved a claim brought by Mr Zhong against Shield Resources Pty Ltd, alleging breaches of the Fair Work Act 2009. The dispute centred on Mr Zhong's termination and the associated procedural fairness and remuneration issues. The court was tasked with deciding whether the defendant's application for an adjournment should be granted and, if so, whether it would be in the interests of justice to vacate the previously set hearing date.

The primary legal issue before the court was whether the defendant's application for an adjournment should be granted, considering the history of the proceedings, the concessions made by the defendant, and the overall interests of justice. The court needed to assess whether granting the adjournment would unduly delay the proceedings and if vacating the hearing date, as per the guillotine orders, was warranted under the circumstances.

The court examined the history of the proceedings, noting the defendant's previous non-compliance with court orders and the concessions made by the defendant in response to the plaintiff's concerns. It considered the impact of vacating the hearing date, which had already been set in accordance with the guillotine orders, and weighed these against the interests of justice. Ultimately, the court determined that vacating the hearing date was appropriate given the defendant's history of non-compliance and the concessions made. It granted the application for an adjournment and vacated the previously set hearing date.

The court's final orders included granting the defendant's application for an adjournment and vacating the hearing date as per the guillotine orders. This decision reflects the court's consideration of the history of the proceedings, the concessions made by the defendant, and the overarching interests of justice in managing the case.

Orders