District Court
New South Wales
Medium Neutral Citation: Hu v Zheng (No 1) [2025] NSWDC 414 Hearing dates: 23 July 2025 Date of orders: 23 July 2025 Decision date: 23 July 2025 Jurisdiction: Civil Before: Neilson DCJ Decision: Application refused.
Catchwords: CIVIL – Application to amend statement of claim – Application made on final day of hearing, during reply submissions of plaintiff – Substantial changes to allegation – Aon Risk Services Australia Limitedv Australian National University (2009) 239 CLR 175 principles applied.
Legislation Cited: Competition and Consumer Law Act 2010 (Cth) Sch 2 ('Australian Consumer Law')
Cases Cited: AonRisk Services Australia Limitedv Australian National University (2009) 239 CLR 175
DarevPulham (1982) 148 CLR 658
Texts Cited: Nil.
Category: Procedural rulings Parties: Plaintiff – Jiani Hu
First Defendant – Yefei Zheng
Second Defendant – Yueling Zhuo
Third Defendant – Jessica Trading Pty LtdRepresentation: Counsel:
Solicitors:
Plaintiff – Mr Hopkins, A.
Defendants – Mr Marshall, R. SC.
Plaintiff – Longton Blackwell
Defendants – Apex Lawyers
File Number(s): 2023/00322527 Publication restriction: Nil.
Judgment
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HIS HONOUR: These proceedings commenced before me on Monday, 26 May 2025. They continued for five days until Friday, 30 May 2025 when I stood them over to Monday, 21 July 2025. In the interim I had other commitments and four weeks of leave, which was the first holiday I had taken since 2019.
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The oral evidence was concluded last Monday, 21 July 2025. The rest of that day and the following day, yesterday, 22 July 2025, were taken up by the necessity of allowing counsel the time to prepare written submissions and in my reading them and reading certain parts of the evidence again. This morning at about 11.30am I returned to the Bench to hear oral submissions. I heard from counsel for the plaintiff first, then the oral submissions of the defendant, and the plaintiff is now in reply. In reply the plaintiff seeks to amend the statement of claim to allege alternative claims of misrepresentation.
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The substantive case is based upon alleged breaches of the Competition and Consumer Law Act 2010 (Cth) Sch 2 ('Australian Consumer Law') for which the plaintiff claims damages in the sum of $270,282.82 or such other amount as the Court might determine. The proceedings have been vigorously contested.
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One of the allegations made in the statement of claim is that the value of the third defendant, a company, was $860,000. According to a deed executed by the plaintiff, the company was valued at $600,000 and the defendants have sought to prove that the plaintiff had received a representation that the third defendant was valued at $860,000. The defendants have not sought to disprove the allegation made in the deed. Because of the way the defendants have run their case the plaintiff now seeks leave to amend the pleading such that it would read thus:
"That the value of the defendant was $860,000 or, in the alternative, $600,000 or, in the alternative, $575,000".
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- Case
- [2025] NSWDC 414
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the amendments sought by the applicant and the timing of the application. The proposed changes were significant, altering the fundamental basis of the claim. Given that the application was made during the final day of the hearing, the court had to evaluate whether this was an appropriate time to allow such changes, especially considering the implications for the respondent. The court also assessed whether the application was made in good faith and whether there was any prejudice to the respondent if the amendments were to be allowed.
Applying the principles from Aon Risk Services Australia Limited v Australian National University, the court determined that the timing of the application and the substantial nature of the proposed changes were significant factors. The court found that permitting the amendments on the final day of the hearing, during the reply submissions, would not be just and equitable. The court concluded that the application should be refused as it would cause undue prejudice to the respondent and disrupt the orderly process of the hearing. The application was denied, and the statement of claim remained as originally filed.
The court's decision was grounded in the need to maintain fairness and the integrity of the judicial process. The final orders of the court were that the application to amend the statement of claim was refused. The statement of claim remained unchanged, and the case proceeded based on the original allegations.
Orders
Orders of the court
Application refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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