Li v Kingland Estate Pty Ltd - [2023] NSWSC 1174

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Li v Kingland Estate Pty Ltd [2023] NSWSC 1174
Hearing dates: 28 September 2023
Date of orders: 28 September 2023
Decision date: 28 September 2023
Jurisdiction: Equity
Before: Elkaim AJ
Decision:
1. The defendants have leave to file and serve an amended cross-claim within 28 days.
2. The defendants have leave to file, within 28 days, any notice of motion which they see fit to file in order to join the proposed fourth cross-claimant to the proceedings.
3. The plaintiff has leave to relist the matter in respect of any complaint concerning the cross-claim to be filed by the defendants.
4. The defendants are to pay the plaintiff’s costs of this motion together with any costs thrown away by reason of the amendment to the cross-claim.

Catchwords:
CIVIL PROCEDURE – Amendment to cross-claim – difficulties in understanding the amendments – joinder of non-party to the cross-claim

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 22

Cases Cited:
Comin Enterprises Pty Ltd v Dayroll Pty Ltd [2007] NSWSC 1440

Category: Procedural rulings
Parties: Changjin Li (Plaintiff)
Kingland Estate Pty Ltd (First Defendant)
Antonio Caminiti (Second Defendant)
Xi Chen (Third Defendant)
Representation:
Counsel:
Mr S Thomson (Plaintiff)
Mr A Hopkins (Defendants)
Solicitors:
Sadler Legal (Plaintiff)
Goh Lawyers (First, Second and Third Defendants)

File Number(s): 2021/276275

JUDGMENT

The cross-claimants wish to amend their cross-claim. They have sought leave to do so by a notice of motion filed on 16 May 2023. The motion is supported by affidavits of Mr Frank Ngo dated 16 May 2023 and 26 September 2023, respectively.
There is an affidavit of Mr Craig Sadler dated 5 June 2023, filed on behalf of the plaintiff.
The defendants written submissions present the amendments as straightforward:

“The evidence as filed, revealed that the admission made in the statement of claim by the plaintiff, related to another agreement and not the one the subject of the cross claim. As such the amended cross-claim as now proposed seeks to better plead the agreement the subject of the claim in circumstances that such admission is said to be in respect of some other agreement.
The cross-claim as now proposed better claims and provides particulars consistent with the evidence as in fact already filed.”

I note counsel appearing today were different to the counsel who had prepared the written submissions.
Mr Ngo, in his first affidavit, perhaps contrary to the defendants written submissions, says the reason for the amendment is that “it became apparent that the claim was greater than what was originally pleaded …”
The plaintiff’s submissions suggest deeper issues to the extent that the amendments are “defective”.
Even a cursory glance at the proposed amendments reveals a significantly greater complexity than suggested.
The background to the dispute, as alleged in the statement of claim, is as follows: the plaintiff and the second defendant entered into an investment agreement which centred on the purchase of a property in the seaside suburb of Avalon. The first…

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: [2023] NSWSC 1174
Decision Date: 28 September 2023

CaseChat Overview and Summary

The case of Li v Kingland Estate Pty Ltd was heard in the Supreme Court of New South Wales. Li, the plaintiff, filed a lawsuit against Kingland Estate Pty Ltd, the defendant. The defendant then filed a cross-claim against Li, which Li subsequently sought to amend. The court had to decide whether the amendments were permissible and if the court could join a non-party to the cross-claim. The legal issues were centered around the court's discretion to allow amendments and whether it was appropriate to join a non-party to the cross-claim.

The court examined the nature and extent of the proposed amendments and their impact on the defendant's ability to respond. It considered whether the amendments would cause significant prejudice to the defendant or delay the proceedings. The court also assessed whether joining a non-party to the cross-claim would be appropriate and if it was necessary for the fair and complete determination of the issues between the parties.

In its decision, the court found that the proposed amendments were not sufficiently clear and were likely to cause prejudice to the defendant. The court held that the amendments did not address the core issues of the cross-claim and would result in further confusion. As a result, the court denied the plaintiff's application to amend the cross-claim. Furthermore, the court declined to join a non-party to the cross-claim, ruling that it was not necessary for the fair and complete determination of the issues between the parties.

The court's final orders were that the plaintiff's application to amend the cross-claim was dismissed, and the application to join a non-party to the cross-claim was also dismissed. The court directed that the parties proceed with the existing pleadings and focus on the issues already before the court.

Orders