Zhao v Posa & Ors [2004] NSWCA 184

New South Wales Court of Appeal

CITATION : Zhao v Posa & Ors [2004] NSWCA 184 HEARING DATE(S) : 7 June 2004 JUDGMENT DATE : 21 June 2004

JUDGMENT OF : Giles JA at 1; Tobias JA at 65; Cripps AJA at 66 DECISION : (1) Extend the time for applying for leave to appeal against the order made on 16 June 2003 to 7 June 2004. (2) Grant leave to appeal from the order made on 16 June 2003 and direct that the notice of appeal be filed within ten days. (3) Appeal allowed. (4) Set aside the orders dismissing the proceedings and that the plaintiff pay the defendants' costs made on 16 June 2003. (5) Extend the time for applying for leave to appeal against the order made on 18 July 2003 to 7 June 2004. (6) Refuse leave to appeal from the order made on 18 July 2003. (7) Order that the plaintiff pay the defendants' costs of the directions hearing on 16 June 2003 and the application heard on 18 July 2003. (8) No order as to the costs of the leave application and the appeals. (9) Opponents to have certificates under the Suitors Fund Act. (10) (a) Order that Ms Mary Nguyen repay to Mr Yuan Lin Zhao the costs payable by the plaintiff pursuant to order 7 and any costs payable by the plaintiff to the defendants with respect to the notice of motion filed on 25 July 2003; (b) Disallow the costs between Ms Mary Nguyen and Mr Yuan Lin Zhao referable to the directions hearing on 16 June 2003, the application heard on 17 July 2003, the notice of motion filed on 25 July 2003, and the leave applications and the appeal.

CATCHWORDS : District Court - plaintiff in default - show cause hearing - plaintiff's lawyer detained elsewhere - dismissal on application of defendants pursuant to Pt 18 r 3 of the Rules - plaintiff not on notice of dismissal on application of defendants, as distinct from on court's own motion - difference in consequences - former dismissal not reversible on application under Pt 1 r 7A of Rules - latter dismissal is reversible - denial of procedural fairness. D Bamforth v Betcke [2003] NSWCA 116; CASES CITED : Howell v Weston [2001] NSWCA 174; Weston v Howell [1999] NSWCA 411; Wilson v Kochate Pty Ltd [2003] NSWCA 25. Yuan Lin Zhao - Claimant PARTIES : George Morris Posa - First Opponent Morris Victor Posa - Second Opponent George Posa (Senior) - Third Opponent FILE NUMBER(S) : CA 40964/03 G B Hall QC & R Hanlon - Claimant COUNSEL : I D Cullen - First and Third Opponents R A Cavanagh - Second Opponent Brydens Law Office, Liverpool - Claimant SOLICITORS : J Sciglitano & Co, Guildford - First and Third Opponents Curwood & Partners - Second Opponent