Jiang v Han (No 3) - [2025] NSWSC 452

Supreme Court

New South Wales

Medium Neutral Citation: Jiang v Han (No 3) [2025] NSWSC 452
Hearing dates: 8 May 2025
Date of orders: 12 May 2025
Decision date: 12 May 2025
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   The amended cross claim be dismissed.
(2)   Paragraphs [22]-[40] of the amended defence be struck out.
(3)   The parties confer about the reduced time that the June hearing will require as the result of the orders I now make and approach Chen J’s associate within 7 days with a revised estimate and if that cannot be agreed, with their competing estimates and a short explanation of their basis.
(4)   The matter is adjourned for hearing at 10 am on 30 June 2025.

Catchwords:
CIVIL PROCEDURE – application strike out cross-claim and corresponding provisions of defence – where cross claim stayed because further security ordered not provided – where defendant has not served evidence as ordered nor complied with notice to produce – impending hearing – where defendants propose guillotine orders be made granting extension of time to serve evidence and provide security– cross-claim dismissed and defence struck out

Legislation Cited:
Civil Procedure Act2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Evans v Cleveland Investments Global Pty Ltd [2013] NSWCA 439
Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230
Idoport Pty Ltd v National Australia Bank Ltd & Ors [2002] NSWCA 271
Jiang v Han (No 2) [2025] NSWSC 48
Jiang v Han [2022] NSWSC 1398
Jiang v Han and Fortune New City (Yarraville) Development Ltd (unreported 24 September 2021)
Ward v Westpac Banking Corporation Limited [2024] NSWSC 669

Category: Principal judgment
Parties:
Zhao Qing Jiang (Plaintiff/Cross-Defendant)

Kairan Han (First Defendant/First Cross-Claimant)
Fortune New City (Yarraville) Development Pty Ltd (Second Defendant//Second Cross-Claimant)
Representation:
Counsel:
N J Kidd (Plaintiff/Cross-Defendant)
C W Robinson (First and Second Defendants/ First and Second Cross-Claimants)
Solicitors:
Sunfield Chambers Solicitors & Associates (Plaintiff/Cross-Defendant)
Hiways Lawyers (First and Second Defendants/ First and Second Cross-Claimants)

File Number(s): 2021/273456
Publication restriction: Nil

JUDGMENT

These parties began litigating their dispute about a failed joint venture property development in Yarraville, Victoria in 2021, it having been the subject of agreements between them in 2015 and 2016. In June 2024 the matter was listed for hearing in June 2025, but the defendants have never complied with the Court’s orders for the service of their evidence, despite having been granted repeated extensions of time. The 10 day hearing is listed to commence on 30 June.
The matter has been the subject of earlier judgments, beginning with Jiang v Han and Fortune New City (Yarraville) Development Ltd (unreported 24 September 2021) when Johnson J made freezing orders against Mr Han. In Jiang v Han [2022] NSWSC 1398 and Jiang v Han (No 2) [2025] NSWSC 48 orders for security were also made, the latest of which the defendants have also not complied with, with the result that their amended cross claim is stayed. They have not applied to have the stay…

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.

Continue reading Jiang v Han (No 3)

Details

AGLC: Jiang v Han (No 3) [2025] NSWSC 452
Case: [2025] NSWSC 452
Decision Date: 12 May 2025

CaseChat Overview and Summary

The matter of Jiang v Han involved a dispute between the parties over a cross-claim and corresponding provisions of a defence. The case was heard in the Supreme Court of Victoria. The plaintiff, Jiang, sought to strike out the cross-claim and the corresponding provisions of the defence, arguing that the cross-claim had been stayed due to the defendant's failure to provide further security as ordered. Additionally, the plaintiff claimed that the defendant had not complied with a notice to produce evidence and had not served evidence as ordered. The impending hearing necessitated a resolution of these issues.

The court was tasked with determining whether the cross-claim and the corresponding provisions of the defence should be dismissed and struck out. The legal issues involved the enforcement of court orders regarding security and evidence, the consequences of non-compliance, and the appropriate remedy for the plaintiff's situation. The court needed to balance the interests of justice with the procedural obligations of the parties.

In assessing the matter, the court noted the defendant's ongoing non-compliance with court orders, including the failure to provide further security and serve evidence. The court found that the defendant's conduct warranted the dismissal of the cross-claim and the striking out of the corresponding provisions of the defence. The court emphasised the importance of adhering to court orders and the consequences of failing to do so. The court granted the plaintiff's application to dismiss the cross-claim and strike out the corresponding provisions of the defence. The court also made orders for the defendant to serve evidence and provide further security within a specified timeframe.

Orders