Zhou v Birriga Holding Pty Ltd - [2024] NSWSC 1425

Supreme Court

New South Wales

Medium Neutral Citation: Zhou v Birriga Holding Pty Ltd [2024] NSWSC 1425
Hearing dates: 4, 6 November 2024
Date of orders: 4, 6 November 2024
Decision date: 06 November 2024
Jurisdiction: Equity
Before: Meek J
Decision:
Plaintiff’s proceedings dismissed.

Catchwords:
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Non-appearance of plaintiff — Plaintiff resident in China — Following the plaintiff’s legal representatives ceasing to act for him immediately following a pre-trial directions listing, and despite only recently paying into Court security for costs in the sum of $350,000, the plaintiff failed to comply with pre-trial directions or attend several mentions of the matter (either in person or by audio-visual link, or by engaging a representative on his behalf) in the lead up to the final hearing, despite continued correspondence from the remaining active defendants — Defendants made separate applications for dismissal of the plaintiff’s proceedings against them — Plaintiff’s proceedings dismissed
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Civil Procedure Act 2005 (NSW), s 61(3)(a) — By notice of motion filed five days before the final hearing was due to commence, the third defendant sought to have the proceedings against her dismissed pursuant to s 61(3)(a) — Plaintiff failed to appear when the motion was heard two days before the final hearing was due to commence — Being satisfied that the plaintiff had sufficient notice of the application for dismissal and considering the dictates of justice and guiding principles of case management, determined that the proceedings against the third defendant be dismissed
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Uniform Civil Procedure Rules 2005 (NSW), r 29.7(4) — Upon the plaintiff’s non-appearance on the final hearing, the seventh defendant (appearing in person) made an application to have the proceedings against him dismissed — Being satisfied that the plaintiff had ample notice of the hearing and in light of his continued “radio silence” in respect of correspondence from the Court and the parties, considering the dictates of justice, determined that the proceedings against the seventh defendant be dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Adelaide Concrete Cutting & Drilling Pty Ltd v Marino (No 2) [2024] NSWSC 499
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Commonwealth Bank of Australia v Susan Hannaford Pty Ltd (No 5) [2013] NSWSC 1175
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
Greywolf Resources NL v Wilkinson [2011] NSWSC 1604
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
In the matter of Kay Investment Holdings Pty Ltd v North East Developments Pty Ltd (in liq) [2011] NSWSC 1121
In the matter of Sunnya Pty Ltd [2023] NSWSC 1286
Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167
Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539
The Estate of Alberto Magri (No…

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.

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Details

Case: [2024] NSWSC 1425
Decision Date: 06 November 2024

CaseChat Overview and Summary

The case of Zhou v Birriga Holding Pty Ltd involved the plaintiff, Zhou, who initiated legal proceedings against several defendants. Zhou, a resident of China, was represented by legal counsel who subsequently ceased to act on his behalf after a pre-trial directions listing. Despite having recently paid security for costs of $350,000, Zhou failed to comply with pre-trial directions and did not appear at any of the subsequent mentions of the matter leading up to the final hearing. This non-appearance was despite continued correspondence from the defendants.

The legal issues before the court centred on whether the proceedings against the plaintiff should be dismissed due to his non-appearance and lack of participation in the case. The court was required to consider the provisions of the Civil Procedure Act 2005 (NSW), particularly section 61(3)(a), and the Uniform Civil Procedure Rules 2005 (NSW), specifically rule 29.7(4), in determining the appropriate course of action. The defendants argued that Zhou's failure to appear or engage in the proceedings warranted the dismissal of his claims against them.

The court, in deciding the matter, noted that Zhou had ample notice of the proceedings and the importance of his participation. It was satisfied that the plaintiff had sufficient notice of the application for dismissal and considered the dictates of justice and guiding principles of case management. Consequently, the court dismissed the proceedings against the third defendant two days before the final hearing was due to commence. Additionally, upon Zhou's non-appearance on the final hearing, the court dismissed the proceedings against the seventh defendant, considering his continued lack of engagement with the proceedings and correspondence. The court's decision reflected a balance between the procedural rights of the parties and the need for efficient case management.

Orders