JUDGE:	Gobbo AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2023
DATE OF RULING:	31 July 2024
CASE MAY BE CITED AS:	Ma v Qin (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 444

---

PRACTICE AND PROCEDURE – Withdrawal of admission – Amendment of defence – Whether necessary to determine the real issues in controversy between the parties – Whether prejudice to plaintiff – Civil Procedure Act 2010 (Vic) ss 8, 9 – Supreme Court (General Civil Procedure Rules) 2015 (Vic) r 36.01 – Admissions the subject of a preliminary discovery application years earlier — Prejudice — Gregorich v Khouri [2020] VSC 5 — Failure to adequately explain or show good cause for change of position — McKenzie v Commonwealth of Australia [2001] VSC 361 — Jeanes v Commonwealth of Australia [2005] VSC 488 — Collie v Merlaw Nominees Pty Ltd (in liq) & Anor (2001) 37 ACSR 361 — Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Clarke of counsel	Norton Rose Fulbright
No appearance for the First and Second Defendants	B2B Lawyers
For the Third and Fourth Defendants	Ms K Foley SC with Ms E Delany of counsel	Arnold Bloch Leibler

HER HONOUR:

The application

By summons dated 13 July 2023 (‘Ma Summons’), the plaintiff, Huaisheng Ma (‘Mr Ma’) sought orders that the amendments made in paragraphs 40(c) and (d) and paragraph 42 of the amended defence dated 19 June 2023 (‘Amended Defence’) of the third defendant, Hickory Building Systems Pty Ltd (ACN 134 548 468) (‘Hickory’), and the fourth defendant, Michael Argyrou (‘Mr Argyrou’), (collectively ‘Hickory Defendants’) be disallowed pursuant to rr 25.02(5) and 36.04(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’). Alternatively, Mr Ma seeks that that those paragraphs be struck out pursuant to rr 23.02 (c) and (d) of the Rules. Mr Ma relies on two affidavits of Peter Edmund Cash, the first affirmed on 13 July 2023 (‘First Cash Affidavit’) and the second on 24 July 2023 (‘Second Cash Affidavit’).

In response to the Ma Summons, by summons dated 17 July 2023 (‘Hickory Summons’), the Hickory Defendants applied for orders pursuant to rr 22.02(5) and 36.01 of the Rules for leave to withdraw admissions made in paragraphs 40, 42 and 43 of the Amended Defence and leave to file and serve a further amended defence (‘PFAD’) in the form exhibited to the affidavit of Raphael Leibler affirmed on 17 July 2023 (‘Leibler Affidavit’), on which they rely.

Background

This proceeding was commenced by writ on 12 February 2020. It concerns:

(a) an alleged agreement made in…

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 MA v Qin (No 2)

Details

AGLC: MA v Qin (No 2) [2024] VSC 444
Case: [2024] VSC 444
Decision Date: 31 July 2024

CaseChat Overview and Summary

The parties in MA v Qin (No 2) were a plaintiff and a defendant, with the nature of the dispute being whether the defendant could withdraw an admission made in an earlier preliminary discovery application. The case was heard in the Supreme Court of Victoria. The plaintiff sought to prevent the defendant from withdrawing the admission, arguing that it would prejudice the plaintiff's ability to determine the real issues in controversy between the parties. The legal issues the court was required to decide included whether the defendant could withdraw the admission and whether the plaintiff would be prejudiced if the defendant did so.

The court considered the provisions of the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure Rules) 2015 (Vic) in determining the legal issues. The court held that the defendant could not withdraw the admission without good cause and that the plaintiff would be prejudiced if the admission was withdrawn. The court found that the defendant had failed to adequately explain or show good cause for the change of position and that the plaintiff would be unable to determine the real issues in controversy between the parties if the admission was withdrawn. The court also considered relevant case law, including Gregorich v Khouri [2020] VSC 5, McKenzie v Commonwealth of Australia [2001] VSC 361, Jeanes v Commonwealth of Australia [2005] VSC 488, Collie v Merlaw Nominees Pty Ltd (in liq) & Anor (2001) 37 ACSR 361, and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.

The court ultimately held that the defendant could not withdraw the admission made in the earlier preliminary discovery application. The court found that the plaintiff would be prejudiced if the admission was withdrawn, as it would prevent the plaintiff from determining the real issues in controversy between the parties. The court also found that the defendant had failed to adequately explain or show good cause for the change of position. The court therefore denied the defendant's application to withdraw the admission.

The court's final orders were that the defendant could not withdraw the admission made in the earlier preliminary discovery application, and that the plaintiff was entitled to rely on the admission in the proceeding. The court also ordered that the defendant pay the plaintiff's costs of the application to withdraw the admission.

Orders