Junjie Ou v Xuefei Wang
[2025] QSC 52
•21 March 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Junjie Ou v Xuefei Wang [2025] QSC 52
PARTIES:
JUNJIE OU
(Plaintiff)v
XUEFEI WANG
(Defendant)FILE NO/S:
BS 15170/23
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
21 March 2025
DELIVERED AT:
Brisbane
HEARING DATE:
12 March 2025
JUDGE:
Freeburn J
ORDER:
1. The plaintiff’s application to amend is dismissed.
2. I will hear the parties on costs.
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – GENERALLY – where the plaintiff applies to amend his statement of claim – where the proposed pleadings seek to expand the case – where the relevant considerations for a court to exercise its discretion to permit an amendment to a pleading are assessed – whether the application to amend the pleading should be allowed
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – GENERALLY – where the plaintiff applies to amend his statement of claim – where the application has been brought at a late state of the proceedings – where pleadings have closed, disclosure has been completed and evidence-in-chief has been filed and served – where it is likely the progress of the case will be disrupted if a further amended statement of claim is allowed – whether the factors weighing against allowing the amendment are greater than those allowing the amendment
Uniform Civil Procedure Rules1999 (Qld) 375
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, applied
COUNSEL:
Mr Dudley for the plaintiff
The defendant is self-represented.
SOLICITORS:
Auslaw Partners for the plaintiff
The defendant is self-represented.
The plaintiff, Mr Ou, applies to amend his statement of claim. Ms Wang, the defendant, who is self-represented, opposes the granting leave to amend.
The Issues
Paragraphs [3] to [18] below explain the rather messy context in which Mr Ou now seeks to amend his statement of claim. No final views are arrived at in relation to any of the matters raised in those paragraphs.
The original statement of claim, filed in November 2023, has some peculiarities. In that pleading, Mr Ou makes these allegations:
(a)Mr Ou and Ms Wang had an intimate relationship in about 2012 and 2013 in China, and thereafter they remained in contact;
(b)in about March 2023, by means of a series of WeChat messages exchanged in Mandarin, Mr Ou agreed to sell his property in St Lucia to Ms Wang for $1.5 million;
(c)ultimately, though, the St Lucia property was transferred to Spon Pty Ltd, a company controlled by Ms Wang;
(d)the purchase price of $1.5 million was to be paid by unspecified instalments, but to be paid by June 2023, that is, within three months of the transfer of the property;
(e)subsequently, Ms Wang paid instalments totalling $600,000 which left $900,000 to be paid;[1]
(f)that balance of $900,000 remained unpaid and so, in September 2023, Mr Ou demanded the re-conveyance of the property (it is difficult to see on what basis Mr Ou could demand a re-conveyance; on his version he was owed a debt);
(g)Ms Wang then asserted that the transaction was meant as a gift;
(h)Mr Ou claims that he is entitled to payment of the balance of the purchase price, or, by reason of an estoppel, he is entitled to equitable compensation.
[1]These figures are rounded.
Some of the peculiarities of the pleading are that it contained what appears to be allegations that are extraneous to the real claim. Examples are claims about the backgrounds of the parties, their prior relationship some years before, Ms Wang’s occupation of the premises with consent “rent-fee”, and Mr Ou’s odd claim for re-conveyance (which now seems not to be pressed).
The vice in extraneous claims like these is that they call for a response and distract the parties from what are the real issues. For example, some further and better particulars filed by the plaintiff in response to a request appears to be almost entirely devoted to these extraneous matters.
In any event, in February, June and July 2024 Ms Wang, who at that time was represented by solicitors, filed a defence, and then an amended defence and counterclaim, and then a further amended defence and counterclaim. In essence, Ms Wang’s defence is that the WeChat messages, when properly translated, do not evidence any binding agreement but instead merely comprised discussion of potential solutions to Mr Ou’s financial difficulties at that time.
Ms Wang also raises a ‘statute of frauds’ defence, that is, that any agreement is unenforceable because of the absence of a signed contract.[2] She also says that any agreement was “mutually terminated or abandoned by the subsequent entering into of the Verbal Agreement, and the Execution of the Deed of Gift”.[3] The Verbal Agreement has some complexity to it and seems to have involved Ms Wang’s father loaning Mr Ou various sums. The Deed of Gift is said to have been executed by Mr Ou and the money transferred is alleged to be a loan from Ms Wang’s parents to Mr Ou.
[2]Ms Wang relies on s59 of the Property law Act 1974.
[3]See paragraph 11 of the defence.
In his amended reply and answer Mr Ou admits he signed the Deed of Gift, but he seems to say that he had a WeChat exchange with Ms Wang in which they agreed that he would execute the Deed of Gift with the “common intention” that:
(a)the WeChat agreement would still govern their respective rights; and
(b)“the Deed of Gift would be of no effect, its purpose instead being to mislead the Queensland Revenue Office as to the true rights and obligations in respect of the Property…”[4]
[4]Reply and Answer at paragraph 7(e)F(vii).
If true, the allegation is scandalous. The essential claim by Mr Ou is that both parties deliberately lied to the Stamp Duties Office, presumably for financial advantage. The allegation is made in a pleading filed by Mr Ou’s solicitors and settled by counsel. However, Mr Ou makes that allegation from China. He presently lives in Shanghai.
There is another weird aspect to the scandalous allegation by Mr Ou that there was a ‘common intention’ to mislead the Office of State Revenue. Pursuant to directions of the court, the parties have filed and served affidavits. When one looks at Mr Ou’s affidavit to see the evidence or details of the ‘common intention’ there is this paragraph dealing with the situation and his understanding as at 1 March 2023:
“46. I understood that Ms Wang’s deferred payment proposal was advanced on the basis that she did not have immediate access to the full sum of $1.5 million. I also understood that she believed she could obtain a tax advantage by structuring the payment in this way, apparently by paying less stamp duty. I did not give much thought to this, as I figured this was Ms Wang’s issue and I was just focused on rescuing my business. I also assumed that Ms Wang would know how to structure the sale appropriately because she was a real estate agent and also had engaged a lawyer. I ended the conversation by confirming that I agreed to her offer and to her engaging a lawyer to proceed.”
And so, nothing in what Mr Ou says in that paragraph that establishes that there was a ‘common intention’ to, in effect, defraud the Office of State Revenue. At best, Mr Ou seems to have subjectively “understood” that Ms Wang was seeking some tax advantage. Obviously enough, a tax advantage might be achieved legitimately, or not. And, what Mr Ou “understood” or subjectively believed, of course, is hardly evidence of Ms Wang’s actions or her objectives.
Mr Ou’s evidence about what happened on 16 March 2023 does not venture any further:
“
55.In the above [WeChat] conversation, I expressed my confusion and surprise that I was being asked to transfer the Property to Ms Wang as a gift. I asked Ms Wang what it meant because I did not fully understand the Deed of Gift and was confused by her proposal which completely contradicted our Agreement by which she was supposed to be paying me for the Property.
56.I understood Ms Wang’s explanation to be that she still intended to pay me AUD $1.5 million for the Property, but that she wanted to document the transfer as a gift to improve her position. I assumed that the lawyer and Ms Wang, as a real estate agent, would structure the transaction appropriately and lawfully. I was desperate for money, and this was being suggested to me suddenly and unexpectedly. The only thing I was really thinking about was whether Ms Wang would pay me or not. I told Ms Wang I would think about it. Ms Wang told me to hurry up.”
No other evidence appears to be capable of supporting the claim of execution of the Deed of Gift with the alleged ‘common intention’. And so, nowhere in Mr Ou’s evidence does it appear that he proves, or even gives evidence of, the alleged ‘common intention’. That raises another issue. How can such a serious allegation have been pleaded, and apparently be still maintained in the current pleadings, if there is no evidence of it? This is an issue that needs to be canvassed with the parties.
The Evidence-in-Chief
The parties have filed and served their evidence-in-chief. Mr Ou’s evidence, through a translator, includes some translated WeChat messages where the proposed sale and later the Deed of Gift is discussed. The WeChat messages are a little cryptic and it is not entirely clear what Mr Ou and Ms Wang are saying to each other. Possibly something has been lost in the translation.
Mr Guo, Mr Ou’s solicitor has sworn on affidavit in support of his client’s claim. That affidavit says this:
“On 11 September 2023, I wrote to Ms Wang and demanded she transfer the Property to Mr Ou. The basis for the demand was that the transfer, which had purportedly been made as a gift pursuant to a Deed of Gift dated 16 March 2023 (Deed of Gift), was a sham. Exhibited to my affidavit and marked “BG-1” is a copy of this correspondence.” [emphasis added]
Mr Guo refers to a letter from Ms Wang’s (then) solicitors asserting that the transaction was in fact a gift.
The transfer form recording the transfer from Mr Ou to Spon Pty Limited states the consideration as “Gift”. A lawyer[5] has certified that they have taken reasonable steps to ensure that ‘this registry instrument’ (that is, the transfer form) is “correct and compliant with relevant law and any Prescribed Requirement”. An Office of State Revenue form (signed and certified as correct by Ms Wang), records that the unencumbered value of the property is $1.15 million.
[5]The lawyer is stated to be Yu Shih of Linklaw Solicitors. Mr Guo swears in his most recent affidavit that Linklaw Solicitors acted for both vendor (Mr Ou) and purchaser (Ms Wang’s company, Spon).
The proposed amended pleading makes some cosmetic and pointless changes to the statement of claim.[6] The substantive changes proposed to be made to the pleading appear to be those explained below.
[6]For example, the name ‘Ms Wang’ is altered to ‘the defendant’ wherever it appears.
Paragraph 8A
A proposed new paragraph 8A asserts that, at all material times, the property had a property value of at least $1.7 million and could readily be sold on the open market. There are two problems. First, the allegation is a little vague. Second, its relevance is not clear. The vagueness arises because the allegation is really two separate allegations – that the property had a market value of at least $1.7 million and that it could be readily sold on the open market. Presumably what is intended is that the property could be readily sold on the open market for $1.7 million.
The relevance of all of that is difficult to find. At its core, Mr Ou claims the balance owing of $900,000.[7] He claims that sum by way of a debt, or by means of an order for specific performance,[8] or as equitable compensation or for damages for breach of fiduciary duty.[9]
[7]I have ‘rounded’ these figures for simplicity.
[8]As discussed below, it is difficult to see how an order for specific performance is appropriate.
[9]See the discussion of a fiduciary duty below.
The only possible relevance of the market value of the property is to the breach of fiduciary duty claim. That claim is discussed below. However, even that claim does not make relevant an allegation that the property could be readily sold for $1.7 million. There is a subtle but important difference between that allegation and the second of three alternative damages for breach of fiduciary duty claims which states Mr Ou is entitled to the difference between the market value of the property (not yet specified because Mr Ou has yet to obtain the valuation evidence) less the $600,000 that has been paid. The latter issue involves expert valuation evidence. The former will involve, presumably, some assessment of market value as well as an assessment of the level of buyer demand for these types of properties in the St Lucia area at the relevant time.
Particulars to Paragraph 9 and 10
The proposed pleading deletes the particulars at the end of paragraphs 9 and 10. Those particulars have been replaced by new sets of particulars. Rather than specifying that the agreement is evidenced by or sourced in nine WeChat messages (paragraph 9) and eight messages (paragraph 10), Mr Ou now wishes to plead particulars as follows:
Paragraph 9: “The plaintiff relies upon the messages for 14 February 2023, exhibited to the affidavit of the plaintiff and the affidavit of Ana Zhao herein, each affirmed 6 November 2024.”
Paragraph 10: “The plaintiff relies upon the messages for 14 February 2023 and 1 March 2023, exhibited to the affidavit of the plaintiff and the affidavit of Ana Zhao herein, each affirmed to 6 November 2024.”
Of course, paragraphs 9 and 10 of the statement of claim are important. Paragraph 9 refers to WeChat messages sent on 14 February 2023 and, in effect, sets the scene for the agreement of 1 March 2023 alleged in paragraph 10. The agreement is said to arise from WeChat messages sent between Mr Ou and Ms Wang on 14 February and 1 March 2023.
When one goes to the WeChat messages exhibited to the affidavit of the plaintiff and Ms Zhao there are about 80 or so WeChat messages back and forth between Mr Ou and Ms Wang on 14 February 2023. None appear to come close to constituting an agreement – putting aside the problem of ‘statute of frauds’ defence. The parties merely get to the point of discussing a possible purchase by Ms Wang at $1.5 million.
On 1 March 2023 there are about 30 or more WeChat messages between Mr Ou and Ms Wang. The discussion appears to be rather cryptic and terse at times.[10] Perhaps relevantly, the discussion involves reference to a lawyer and ends with Ms Wang sending a disclosure statement to Mr Ou and saying this: “This is the disclosure of the property, while will be signed before the contract. The lawyer is working on the contract.” That rather suggests that the case falls within the third category in Masters v Cameron.[11]
[10]Of course, the original messages are in Mandarin. There may be something lost in the translation.
[11](1954) 91 CLR 353 at 360; see Carter, Contract Law in Australia (8th ed) at [5-02]. The third category in Masters v Cameron is that category where the nature of the agreement is that the agreement would not come into effect unless and until there was an execution of the agreement in which the terms and conditions have been agreed. In other words, ‘our agreement is subject to us signing a written contract’.
The problem is that what Mr Ou now seeks to do is make his case about the agreement even less precise. Rather than identifying 17 specific WeChat messages that he relies on over the two separate days, Mr Ou now wishes to point to all of the 100 or more messages annexed to his affidavit as constituting or evidencing the agreement. There is no rational reason why Mr Ou should seek an alteration to his pleading that makes his case against Ms Wang less precise. That does not assist Ms Wang in knowing the case she has to meet at trial, and it will not assist the trial judge who will be required to decide the real issues.
This is in a context where each message is translated into English. And it is in a context where, on their face, there is no obvious point where one can say the parties have arrived at a final, binding agreement at a particular point in time. Indeed, on a preliminary examination of the messages the parties did not ever get to a concluded bargain because they contemplated a contract would be prepared by the lawyer and then signed. And, of course, to overcome the ‘statute of frauds’ defence Mr Ou will need to satisfy the court that, not only did the parties reach a concluded binding agreement in the WeChat messages but also that there is a contract signed by Ms Wang.[12]
[12]See Carter, supra, at [9-14].
It follows that leave to amend the particulars should be refused. Indeed, the particulars should be improved so that Mr Ou is required to identify precisely the agreement he asserts.
The Assurances
Mr Ou seeks to add the following paragraph to his pleading:
11A By an exchange of messages via WeChat on 16 March 2023 between the plaintiff and the defendant:
(a) the defendant proposed that the plaintiff execute a Deed of Gift to transfer the Property;
(b) the defendant said (in effect) that the Deed of Gift, for which the Property might be valued at $1.5 million, was a means to reduce the stamp duty for which she would be liable;
(c) the defendant further assured the plaintiff that, notwithstanding the gift mechanism, he would receive the Purchase Price in accordance with the Agreement, which assurance she gave him by messaging him inter alia that:
(i)“you won’t be unpaid…the lawyer knows there is a transaction. If I don’t give you, you can trace back to me”; and
(ii)(in relation to the agreed consideration under the Agreement), “I’ll definitely give it to you. Otherwise, you tell the lawyer and the whole of Brisbane knows that I extorted from my cousin (sic)”.
The assurances are put forward as part of Mr Ou’s case based on equitable promissory estoppel.
The particulars suffer from the same problem as is explained above. They rather obscure rather than identify precisely the WeChat messages relied on by Mr Ou. There are about 22 WeChat messages on 16 March 2023, some involving a lawyer acting for the parties, and several of which annex or refer to other documents. It does not assist the court or the parties to have the ‘assurances’ identified in such a diffuse way.
The particulars are also problematic because Mr Ou relies on two specific WeChat messages (at 15:17 and 15:44) but not exclusively because those messages are relied on “inter alia” – that is, amongst others. Mr Ou’s pleading ought to be precise. It is not good enough to say, in effect, ‘I am relying on these two messages and some other unidentified messages amongst the many sent on that day.’
Paragraph 11A is too imprecise. The court and the parties should know exactly what is alleged to be the assurance. If it is confined to the two quoted WeChat messages, then that may be sufficient. But it is not appropriate for Ms Wang or the court to be faced with what is, in effect, an open-ended allegation.
Reliance on Assurance
In paragraph 12A of the proposed pleading Mr Ou says this:
“12A. On or about 16 March 2023, and in reliance on the Assurances, the plaintiff:
(a) executed a written retainer for LinkLaw to conduct the conveyance of the Property;
(b) executed the Deed of Gift.”
It is easy enough to see why Mr Ou would say he relied on the ‘Assurances’ to sign the Deed of Gift. However, it is difficult to see the relevance of the allegation that, in reliance on the Assurances he executed the written retainer of the lawyer, LinkLaw. That allegation seems to go nowhere. Certainly, the retainer is not attacked, and no relief that is sought refers to the retainer, and the lawyers are not parties to the proceeding.
Payment
In paragraph 16A of the proposed pleading Mr Ou seeks to add an allegation that Ms Wang made a further payment of $50,000 towards the purchase price on 19 May 2023. The amendment is clear and is unlikely to cause Ms Wang any difficulty.[13]
[13]There is likely to be a paper trail evidencing whether the payment was made or not.
Breach Particulars
The particulars proposed for paragraph 20 suffer from two problems. The first is that the particulars refer to “[WeChat] messages for 31 March 2023” when in all probability the correct date is 31 May 2023.[14] The second is that there are many messages back and forth on that day. The precise messages relied on – there are likely to be two – should be identified.
[14]See the beginning of paragraph 20.
In a case where many of the communications have been translated, and are likely to be the subject of cross-examination at trial, also through a translator, it is necessary to be precise.
Other Changes
Paragraph 24A pleads that Ms Wang has defended Mr Ou’s claim that the transaction was a gift. It is difficult to see what this adds to the very similar allegation in paragraph 24, but it is an amendment that is unlikely to cause any difficulty.
Estoppel
In paragraphs 28, 29, 29A, 29B, 30, 31 and 32 Mr Ou tinkers with his pleading of estoppel. The changes are not substantial and there appears to be nothing prejudicial in this.
Fiduciary Duties
Paragraphs 34 to 43 are completely new paragraphs. These paragraphs allege that:
(a)in the circumstances Ms Wang owed fiduciary duties to Mr Ou because, amongst other things, he was in China, Ms Wang was a licensed real estate agent in Brisbane, she occupied the property, and Mr Ou had no legal or other representative in Australia;
(b)she therefore had a duty not to place herself in a position of conflict of interest or to profit from opportunities which came to her in her role as real estate agent or fiduciary;
(c)she arranged the sale for $1.5 million, and a transfer of the property before the purchase price was paid;
(d)she arranged the solicitors, the Deed of Gift, and the Assurances and the transfer, but failed to pay the balance of the purchase price;
(e)she subsequently, in 2024, sold the property for $1.95 million;
(f)by reason of the breaches of her fiduciary duty, Mr Ou has suffered a loss of:
(i)at least $900,00 (the debt); or
(ii)the difference between the market value (not yet specified) less the $600,000 paid; or
(iii)$1.95 million (that is, the September 2024 sale price) less $600,000.
The relevance of the sale price in September 2024 appears to be that, as a consequence of Ms Wang’s alleged breach of the fiduciary duty, Mr Ou says he is entitled to an account of profits and a constructive trust over monies received in breach of the fiduciary duty.
It can be seen that the new parts of the pleading significantly expands the scope of the dispute. What was largely a dispute about whether there was a binding agreement between the parties, and a debt claim,[15] with an associated part performance and estoppel claim, is now proposed to be expanded into a broader claim which includes an examination of the nature of the relationship between the parties and whether Mr Ou was vulnerable to, and was exploited by, Ms Wang.[16]
[15]The claim is specified to be a claim for specific performance but an order is merely sought for the payment of money outstanding under a largely executed contract. Nothing is sought ‘in specie’: see the discussion in Dal Pont, ‘Equity and Trusts’, 8th ed at [33.05].
[16]It is true, though, that both parties’ pleadings and written evidence-in-chief traverses wider than the narrow debt claim.
That expansion of the case is a problem with significant consequences. As explained, much of the evidence has been and will be translated from Mandarin to English. To the extent that the case is a relatively simple debt case, even with a claim of part performance and estoppel, the important evidence is largely contained in WeChat messages between the parties and as well as payments said to be part performance. The messages can be and have been translated from Mandarin to English. The cross-examination at trial will be cumbersome. However, the expansion of the case to an allegation of a fiduciary relationship will add a whole new dimension to the complexity of the trial.
There are some specific problems with the proposed new paragraphs alleging a fiduciary duty:
(a)paragraph 36(b) refers to “repeated requests” to vacate the property but does not identify those requests;
(b)paragraph 36(c) includes an allegation of inadequate attempts to sell the property over a 2-year period but does not specify or give any details of the alleged inadequacy;[17]
(c)paragraph 37(a) specifies that “the Property could be readily sold at or about $1.7m” but no details are given as to potential buyers or why it is alleged that a buyer at that price could be readily found;
(d)paragraph 41 asserts that a buyer could be found for at least $1.7 million but, similarly, no details are given;
(e)paragraph 42(a) does not identify “the market value of the Property as at 28 March 2023” – the valuation evidence is yet to be obtained;
(f)paragraph 42(e) refers to the price at which the property was sold in September 2024, but the relevance of that sale price is not explained or apparent.
[17]Possibly the allegation will be a deficiency in advertising, or it may be something else.
Principles Concerning Amendment
Rule 375 of the Uniform Civil Procedure Rules1999 gives the court a discretion to permit an amendment to a pleading. The content of rule 375 is substantially the same as rule 502 of the Court Procedures Rules2006 (ACT) which was considered by the High Court in Aon Risk Services Australia Limited v Australian National University.[18] The relevant considerations derived from that case may be summarised in this way:
[18](2009) 239 CLR 175. Note that the in the course of argument Counsel referred to some passages of the High Court’s judgment which considered rule 501 of the Court Procedures Rules 2006 (ACT). That rule is different. For present purposes, it is necessary to consider those parts of the judgment referred to the broader discretion under Rule 502.
(a)An order that the amending party pay the costs occasioned by the amendment is not necessarily “a panacea that heals all”;[19]
[19](2009) 239 CLR 175 at [99]; Cropper v Smith (1884) 26 Ch D 700 at 711.
(b)The strain that the litigation imposes on litigants, including corporate litigants, is a relevant consideration;[20]
[20](2009) 239 CLR 175 at [100], [101].
(c)The objectives of rule 5,[21] that is, the just and expeditious resolution of the real issues at a minimum of expense, does not require that the court refuse applications to amend;
[21]In Aon Risk, the equivalent ACT rule was Court Procedures Rules 2006 (ACT) rule 21.
(d)the waste of some costs and some degree of delay are inevitable consequences of amendment; that waste and delay, and the extent of it, are relevant considerations;[22]
[22](2009) 239 CLR 175 at [102].
(e)The nature and importance of the amendment to the party applying to amend cannot be overlooked;[23]
[23](2009) 239 CLR 175 at [102].
(f)Factors weighing against allowing an amendment may be:
(i)the extent of the delay;
(ii)the costs associated with the delay;
(iii)the prejudice which might reasonably be assumed to follow;
(iv)any prejudice that is shown.[24]
(g)Much will depend on the point the litigation has reached relative to a trial when the application to amend is made;[25]
(h)A factor to consider is whether the party seeking to amend has had a sufficient opportunity to plead their case and whether it is too late to amend having regard to the other party and other litigants awaiting trial dates;[26]
(i)The exercise of the discretion will invariably require an explanation to be given where there is delay in applying for amendment;[27]
(j)An applicant will need to show that the application is brought in good faith as well as the circumstances giving rise to the amendment so that they may be weighed against the effects of any delay and the requirements of rule 5.[28]
[24]Ibid.
[25]Ibid.
[26]Ibid.
[27]Ibid. The adequacy of the explanation is also a relevant factor.
[28](2009) 239 CLR 175 at [103].
It is necessary to consider the relevant factors in this case.
Delay/Stage of Proceedings
Here, the proposed amendment comes late. The pleadings have closed, disclosure has been completed, the evidence-in-chief has been filed and served. Substantively, all that remains is for a trial date to be allocated.
One problem is that the evidence-in-chief that has been filed and served, like the pleadings, lapses into extraneous issues. For example, Ms Wang’s affidavit refers to events in 2014 and 2017 which seem to have no relevance to the dispute. Mr Ou’s evidence, as the paragraphs quoted above illustrate, are a strange combination of Mr Ou’s subjective intentions, his commentary on the WeChat messages, his subjective response to them, and his arguments in response to Ms Wang’s case. And so, case management decisions may need to be made to ensure the evidence adduced by both parties can properly be characterised as relevant and admissible evidence.
Another likely case management step may be to try to have the parties agree to an accurate translation of the WeChat messages.
To that extent, some steps still need to be taken before the trial will be able to be heard. The parties have agreed to a mediation, but Ms Wang wishes that to proceed after the issue of the amendment has been resolved.
It is difficult to assess these things, especially with the likely involvement of a translator, but the likelihood is that the length of the trial will be significantly increased if the amendment is allowed.
Opportunities to Amend/Reasons for Amendment
There were numerous opportunities to amend before now.
The only reason for Mr Ou’s desire to amend now, at this relatively late stage, is that the amendments have been recommended by his senior counsel, who was only recently engaged. Of course, late amendments might be made for any number of reasons. Relevant facts may only be discovered late in the proceedings. Or there may have been mistakes or inadvertence. Mr Ou’s reason falls into an entirely different category. Mr Ou has chosen to have his solicitors retain senior counsel at a relatively late stage and that senior counsel has recommended the amendments. The previous pleading, drafted by solicitors and settled by junior counsel, is not said to be deficient. However, it is now submitted that, if the court were to refuse leave to amend that would deny to Mr Ou “an important and viable cause of action and materially impair his claim”.[29]
[29]Plaintiff’s submissions at 3(c).
There is room for doubt that that proposition is right. First, at least from this distance, the proposed amendment to add the breach of fiduciary claim does have some prospects[30] but may not have strong prospects. Mr Ou’s case is that he says that he does not speak English. He says that Ms Wang does speak English. That is said to be one of a number of reasons for his vulnerability to Ms Wang. But the negotiations between the parties appear to have been conducted by means of WeChat and entirely in Mandarin. And, if the present translation of the WeChat messages is accurate, Ms Wang made clear that she was proposing to buy the property from Mr Ou personally. Mr Ou says he had no lawyer or representative in Australia. But he does not say that he was unable to retain a lawyer or another person to act for him in Australia.
[30]See, for example real estate agent cases like McKenzie v McDonald [1927 VLR 134 and Pederson v Larcombe [2008] NSWSC 1362, both of which are discussed by Dal Pont in Equity and Trusts in Australia, 8th edition at [4.180].
Second, much will depend on Mr Ou’s claim that Ms Wang assured him that “Don’t worry, you won’t be unpaid” and “I’ll definitely give it to you…”.[31] If Ms Wang made those representations, it may be hard for her to resist Mr Ou’s estoppel claim. In that context, the breach of fiduciary duty claim is put forward as an alternative claim. I say that because the fiduciary claim may not be necessary in order for Mr Ou to obtain relief.
[31]These are the present translations of the WeChat messages on 16 March 2023 at 15:17 and 15:44.
Nature of the Proposed Amendment
The nature of the proposed amendments have already been explained.
The two principal problems with the proposed amendments are that:
(a)the proposed amendment expands the case in circumstances where translators are likely to be involved; and
(b)the proposed amendments are rather ‘under-cooked’ in the sense that they contain some problems (identified above) as well as a need for valuation evidence.
On that last point, there is no indication as to when the valuation evidence will be obtained and then when the statement of claim will be, presumably, further amended to insert a market value in paragraph 42(b) of the statement of claim.
Curiously, in the context where the amendments were proposed in December 2024, there is even now no proposal as to when the missing expert valuation evidence might be obtained. From a case management point of view, it is an unattractive proposition to permit a case to be expanded with no real end in sight as to when the pleadings might be closed, and the expert evidence finalised.
Prejudice/Strain of Litigation
Ms Wang has explained that she is stressed by the litigation process, which she has embarked on without being able to afford a lawyer. She is concerned about the risk that steps in the proceeding will need to be repeated, and she draws the court’s attention to the overriding obligations imposed by rule 5 of the UCPR.
Conclusion
Weighing all those factors, it seems to me that permitting the amendment, at least in its present form, carries with it a significant risk that the proceeding will be disrupted or delayed. Case management is not an end in itself, and it is important that parties have the opportunity to prosecute their case. But these late and ‘under-cooked’ proposed changes, apparently made because Mr Ou has decided to add senior counsel to his legal team, has the potential to disrupt the progress of what is already a case with some challenges. The prospect is that the progress of the case will be disrupted for some time if there is to be a further amended statement of claim, a defence to that pleading, and an expert valuation report, and perhaps a competing expert valuation report. That is in circumstances where there are already complications and Mr Ou’s draft order proposes a timetable that, in effect, has all of the steps in the proceeding being revisited by both parties. That illustrates the substantive problem created by amending this late in the day.
Mr Ou’s proposed timetable proposes that he file and serve his expert evidence, presumably his expert valuation evidence, by 11 April 2025 – which is some 5 months after the amendment was proposed. Oddly, the timetable proposes that both parties file and serve any additional lay evidence by 7 April 2025 but that Mr Ou, and only Mr Ou, have a right to file and serve lay evidence in reply. The proposed timetable provides that the evidence on the proposed wider case is to be complete by the end of May 2025. That is in circumstances where the evidence, such as it is, was completed late last year.
The delays, some of which have already occurred, are aggravated by the prospect that further delays are likely in a case with a wider scope. Of course, the situation may have been different if Mr Ou had come to court with the valuation evidence he wished to rely on and a finalised pleading.
Paragraphs 16A,[32] 24A,[33] and 28, 29, 29A, 29B, 30, 31 and 32[34] are not in themselves controversial or prejudicial. However, it is still too late a stage in the proceeding to propose, or make, those changes without inevitably disrupting or delaying the proceeding.
[32]Discussed at [36].
[33]Discussed at [39].
[34]Discussed at [40].
The situation also may have been different if the existing evidence were confined, and the proposed amendment was not likely to add significantly to the material and the translation difficulties. However, Mr Ou has filed and served three affidavits totalling 387 pages.[35] Ms Wang has filed affidavit material totalling 112 pages. The likelihood is that a dispute with a wider scope will significantly add to the material. The burden of the trial on the parties and the court’s lists is likely to be greater, especially having regard to the need to have the material translated and the difficulties likely to be encountered with cross-examination.
[35]One of these affidavits appears to translate the text of Mr Ou’s affidavit, but there may be something amiss in the way the affidavit of the translator has been put together.
In the circumstances, the application will be dismissed.
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