Cao v Apollo Phoenix Resources Pty Ltd [2019] FCA 1113

Cao v Apollo Phoenix Resources Pty Ltd [2019] FCA 1113

The Court granted the adjournment of the dismissal application subject to strict self-executing orders, extending time for the applicant to pay the ordered security; failure to comply would result in dismissal of the application for leave to appeal with costs. The significant prior payments and lack of clear prejudice to the respondents justified providing a final opportunity, but compliance was made an express condition.

Parties
Applicant: Zhong Cao; First Respondent: Apollo Phoenix Resources Pty Ltd
Jurisdiction
Australia
Judgment Date
05 July 2019
Procedural Posture
Application for Leave to Appeal / Interlocutory; Hearing of Dismissal/adjournment Application
Outcome
Adjournment granted subject to conditions; time to comply with security for costs orders extended; failure to comply to result in dismissal with costs.
Legal Topics
Security for Costs, Adjournment, Self Executing Orders, Compliance With Court Orders
Commercial Law Corporations Law Civil Procedure Security for Costs Adjournment Self Executing Orders Compliance With Court Orders

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Parties

Zhong Cao

Applicant

Apollo Phoenix Resources Pty Ltd

First Respondent

Procedural Posture

Application for Leave to Appeal / Interlocutory; Hearing of Dismissal/adjournment Application

Legal Issues

  1. 1 Whether to grant an adjournment of a dismissal application for failure to comply with security for costs orders
  2. 2 Appropriate use of self-executing or 'springing' orders in case management
  3. 3 Whether the applicant has explained non-compliance with prior orders despite significant funds transfers

Ratio Decidendi

The Court granted the adjournment of the dismissal application subject to strict self-executing orders, extending time for the applicant to pay the ordered security; failure to comply would result in dismissal of the application for leave to appeal with costs. The significant prior payments and lack of clear prejudice to the respondents justified providing a final opportunity, but compliance was made an express condition.

Court Disposition

Adjournment granted subject to conditions; time to comply with security for costs orders extended; failure to comply to result in dismissal with costs.

Orders

  • Application for dismissal adjourned sine die.
  • Time to pay amounts under orders of 30 May 2019 extended to 5pm on 31 July 2019.