Hu v Zheng (No 1) - [2025] NSWDC 414

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 Ltd
Representation:
Counsel:
Plaintiff – Mr Hopkins, A.
Defendants – Mr Marshall, R. SC.
Solicitors:
Plaintiff – Longton Blackwell
Defendants – Apex Lawyers

File Number(s): 2023/00322527
Publication restriction: Nil.

Judgment

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.
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.
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.
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".

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWDC 414
Decision Date: 23 July 2025

CaseChat Overview and Summary

In the case of Hu v Zheng, the applicant sought leave to amend their statement of claim during the final day of the hearing. This application was made while the plaintiff was making their reply submissions. The proposed amendments included substantial changes to the allegations contained within the original statement of claim. The court was required to determine whether such an application, made under such circumstances, should be granted. This decision hinged on the principles set out in the case of Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 Ltd
Representation:	Counsel: Plaintiff – Mr Hopkins, A. Defendants – Mr Marshall, R. SC. Solicitors: Plaintiff – Longton Blackwell Defendants – Apex Lawyers
File Number(s):	2023/00322527
Publication restriction:	Nil.