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 2) [2022] NSWSC 1779 Xia v Santah Pty Ltd [2003] NSWSC 807 Texts Cited: M Davies, A S Bell, P L G Brereton and M Douglas, Nygh's Conflict of Laws in Australia (10th ed, 2020, LexisNexis Butterworths) Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: Jian Zhou (Plaintiff) Birriga Holding Pty Ltd (First Defendant) Yanbing Zhang (Second Defendant) Ping Huang (Third Defendant / Applicant) Donnison Apartments Pty Ltd (Fourth Defendant) Coralyn Margaret Dunkley (Fifth Defendant) Birriga Development Pty Ltd (Sixth Defendant) Ronald Charles Dunkley (Seventh Defendant) Representation: Counsel: P Kucharski (Third Defendant / Applicant)