Leung v American International Assurance Company (Australia) Limited [2007] FCA 990

FEDERAL COURT OF AUSTRALIA

Leung v American International Assurance Company (Australia) Limited [2007] FCA 990 WILLIAM LEUNG, QING NA RONG AND WEN GOODWILL (AUSTRALIA) PTY LIMITED v AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED NSD 1497 OF 2003

COWDROY J

8 JUNE 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 1497 OF 2003

BETWEEN: WILLIAM LEUNG

First Applicant

QING NA RONG

Second Applicant

WEN GOODWILL (AUSTRALIA) PTY LIMITED

Third 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. Leave be granted to the applicants to file in Court their Notice of Motion for an extension of time in which to file their evidence. 2. The applicants' motion for an extension of time in which to file evidence be dismissed. 3. The proceedings be dismissed pursuant to Order 20 Rule 2 (c) of the Federal Court Rules. 4. The applicants pay the costs of the respondent, including the costs of this motion unless within 14 days an application is made by either party for a different order.

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 1497 OF 2003

BETWEEN: WILLIAM LEUNG

First Applicant

QING NA RONG

Second Applicant

WEN GOODWILL (AUSTRALIA) PTY LIMITED

Third 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 orders 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 motion was brought because of the persistent failure of the applicants to file the evidence upon which they rely in support of their application. The relevant facts are set out in the Court's decision given on 28 May 2007: see Leung v American International Assurance Company (Australia) Limited [2007] FCA 989. 2 The Court is mindful of the serious step it is to strike out proceedings under Order 20 Rule 2 (c) of the Federal Court Rules. For this reason the Court considered that despite the inordinate delay in the conduct of the proceedings, a further extension of time should be granted to enable the applicants to file any evidence upon which they intend to rely in the proceedings. Accordingly on 28 May 2007 the hearing of the motion was adjourned until today and a direction was made that the applicants file and serve all affidavits upon which they rely by 4 pm on 6 June 2007. 3 The applicants filed a notice of motion on 8 June 2007. Such motion seeks an extension of time for the applicants to file their evidence, and a vacation of the hearing dates currently fixed for 27 August to 6 September 2007. 4 An affidavit in support of the motion has been provided by Mr Lawrence Lin, the applicants' solicitor. He states that between 25 May 2007 and 4 June 2007 he was 'traveling [sic] on flight and/or overseas'. He states that 'on or about 4 and 5 June 2007' he attempted to contact the applicants but was not successful. He also states that the applicant's wife later told him that the applicant was overseas, but 'should be back a couple of days later'.