Cao v Apollo Phoenix Resources Pty Ltd (No 2) [2019] FCA 469

FEDERAL COURT OF AUSTRALIA

Cao v Apollo Phoenix Resources Pty Ltd (No 2) [2019] FCA 469 File number: NSD 1037 of 2018

Judge: MARKOVIC J

Date of judgment: 25 March 2019

Date of publication of reasons: 4 April 2019

Legislation: Federal Court of Australia Act 1976 (Cth) s 20(5) Federal Court Rules 2011 (Cth) rr 5.23, 19.01(1)(c)

Date of hearing: 25 March 2019

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: No Catchwords

Number of paragraphs: 13

Solicitor for the Applicant: Maddocks Lawyers

Counsel for the First Defendant: Mr P Silver

Solicitor for the First Defendant: Mills Oakley

Counsel for the Second and Third Defendants: Mr A P Coleman SC and Mr D M Fairweather

Solicitor for the Second and Third Defendants: Fairweather Litigation

ORDERS NSD 1037 of 2018

BETWEEN: ZHONG CAO Plaintiff

AND: APOLLO PHOENIX RESOURCES PTY LTD ACN 158 977 881 First Defendant CHRISTOPHER JOHN DAWS Second Defendant JOHN TIMOTHY KINGSWOOD Third Defendant

JUDGE: MARKOVIC J DATE OF ORDER: 25 mARCH 2019

THE COURT ORDERS THAT:

1. Pursuant to s 20 of the Federal Court of Australia Act 1976 (Cth) and r 5.23 of the Federal Court Rules 2011 (Cth) (Rules) the proceeding as against the first defendant is dismissed with costs. 2. Pursuant to r 19.01(1)(c) of the Rules the proceeding against the second and third defendants is dismissed with costs. 3. The defendants have liberty to apply for lump sum costs orders in this proceeding by filing and serving any application and affidavit in support by 17 May 2019. 4. Service on the plaintiff in relation to any further steps in the proceeding be effected by sending a registered letter to the plaintiff at Runyuan Feicuicheng, No 112, Gongnong Street, Daoli District, Harbin, People's Republic of China. 5. Service of any letter or other process be deemed to have been effected within seven days after the date of its dispatch in accordance with Order 4. 6. Payment of $150,000 is to be made to the first defendant from the amount paid by the plaintiff into Court for security for costs, on account of its costs incurred to date as set out in the affidavit of Peter Hodges sworn 25 March 2019. 7. Payment of $25,000 is to be made to the second and third defendants being the amount paid by the plaintiff into Court for security for costs, on account of their costs incurred to date as set out in affidavit of Dirk Maurice Fairweather sworn 14 March 2019. 8. Unless the Court otherwise orders, the balance of the monies paid by the plaintiff into Court for security for costs of the first defendant not be paid or disbursed until resolution of the applications for lump sum costs orders to be made in accordance with Order 3. 9. The first defendant is released from its undertaking to the plaintiff dated 2 July 2018, a copy of which is annexed and marked "A", which on and from the making of this order is of no further force and effect. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.