Liu v Lin - [2023] NSWSC 1326

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Liu & Ors v Lin [2023] NSWSC 1326
Hearing dates: 28 August 2023 and written submissions received on 1 September 2023
Date of orders: 3 November 2023
Decision date: 03 November 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Leave granted to file the Amended Statement of Claim subject to the plaintiffs paying any costs thrown away by the amendment.

Catchwords:
CIVIL PROCEDURE – pleadings – amendment of pleadings – plaintiffs seek leave to file a Further Amended Statement of Claim (the new pleading) which has been supplied to the Court into the defendant in draft – defendant objects to the filing of the new pleading on the grounds that it is embarrassing inform and liable to be struck out – whether a pleading which alleges that certain earlier pleaded conduct that is found to have been proved constitutes a representation is embarrassing in form – whether the pleading of fraud in the pleading of causation are adequate.

Legislation Cited:
Civil Procedure Act2005, ss 56 – 60.

Category: Procedural rulings
Parties: First Plaintiff: Dehong Liu
Second Plaintiff: Minghui Wang
Third Plaintiff: Ly Houy Lay
Fourth Plaintiff: Penny Chen
Defendant: Biyu Lin
Representation:
Counsel:
Plaintiffs: E. Cox SC; A.L. Oakes
Defendant: D. Pritchard SC; A. Lim
Solicitors:
First, Second and Fourth Plaintiffs: Xiang Li, Broaden Legal
Defendant: Ian Victor Reagan, BY Associates Lawyers

File Number(s): 2022/282622
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. In the Court’s first judgment it: (1) continued certain freezing orders against the defendant and ordered that each party’s costs of the application for freezing orders would be that parties cost in the proceedings; and (2) extended time for the plaintiffs to serve on the defendant and provide to the Court a Further Amended Statement of Claim: Liu v Lin [2023] NSWSC 750.
The plaintiffs provided a Further Amended Statement of Claim (“the new pleading”) in accordance with the orders made at the time of the first judgment. Minor parts of the new pleading are still in dispute. At a brief post-judgment hearing on 28 August 2023 the Court heard supplementary submissions and directed the filing and serving by the plaintiff by 1 September 2023 of short further written submissions in relation to the new pleading, dealing with the remaining disputed questions raised by the defendant.
This judgment should be read with the Court’s first judgment. Events, matters and persons are referred to in both judgments in the same way.
Mr E. Cox SC and Mr A.L. Oakes of counsel, instructed by Broaden Legal continued to appear for the plaintiff on this remaining part of the March motion. Mr D Pritchard and Ms A. Lim of counsel, instructed by BY Associates Lawyers continued to appear for the defendant.
The defendant’s written submissions acknowledge that there had been significant simplification of the plaintiff’s claim in the new pleading. But the defendant contended that despite that simplification the new pleading was still…

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.

Keep reading for free

Create a free CaseChat account to read Liu v Lin and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NSWSC 1326
Decision Date: 03 November 2023

CaseChat Overview and Summary

Liu v Lin involved a dispute between Liu and Lin concerning alleged fraudulent misrepresentations and the adequacy of the causation pleaded. The matter was heard in the Federal Court of Australia. Liu sought leave to amend their Statement of Claim to include a new pleading, which they argued would better reflect the evidence adduced during the proceedings. Lin opposed the amendment, contending that the proposed new pleading was embarrassing in form and should be struck out.

The court was required to determine whether the proposed amendment, which included allegations that certain conduct found to be proven constituted a representation, was permissible. Additionally, the court needed to assess whether the allegations of fraud and causation in the new pleading were adequate. The court had to balance the need for the pleadings to accurately reflect the evidence with the principles of fairness and justice in the administration of proceedings.

The court found that the proposed amendment was not embarrassing in form, as it did not introduce new causes of action but rather refined the existing claims. The court held that it was permissible for the pleadings to evolve to reflect the evidence as it emerged during the proceedings. Furthermore, the court determined that the allegations of fraud and causation in the new pleading were adequate, as they provided a clear and concise statement of the case. The court granted Liu leave to file the Further Amended Statement of Claim.

The court's final orders included granting Liu leave to file the Further Amended Statement of Claim and dismissing Lin's objections. The court emphasised the importance of the pleadings accurately reflecting the evidence as it developed during the proceedings, while also upholding the principles of fairness and justice in the administration of the case.

Orders