The Manor BR Pty Ltd v Australian Fengsheng Pty Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
THE MANOR BR PTY LTD v AUSTRALIAN FENGSHENG PTY LTD
[2025] SASC 114
Reasons for Decision of the Honourable Justice Kimber
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - FORM OF PLEADING - RAISING NEW MATTER
This is an application for leave to file an amended statement of claim, described as Statement of Claim – Revision 7 (Revision 7). The application was filed by the applicant on 6 June 2025. The trial is listed to commence on 7 October 2025, with 15 days set aside. On any view, the amendments within Revision 7 are substantial and, if granted, will likely involve the trial being adjourned.
The respondent does not oppose all the amendments, but it does oppose those that are the most substantial and detailed. The respondent fairly concedes that all the amendments which are opposed are important and that each could have a significant consequence to the outcome of the proceedings. The respondent also concedes that some matters touching on the amendments have arisen after the matter was set down for trial and after other orders designed to promote proper preparation for the trial had been made.
Held:
1. The application is granted, despite it being likely that the trial will need to be adjourned.
2. I will hear the parties as to any further orders which might be appropriate.
Uniform Civil Rules 2020 (SA) rr 3.1, 151.12, referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; PPG Developments v Capitanio (2016) 126 SASR 307, applied.
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, distinguished.

THE MANOR BR PTY LTD v AUSTRALIAN FENGSHENG PTY LTD
[2025] SASC 114
Civil: Application
KIMBER J:

This is an application for leave to file an amended statement of claim. The respondent opposes leave being granted. The trial is listed to commence on 7 October 2025, with 15 days set aside.
The application was filed on 6 June 2025. The amended statement of claim the subject of the application for leave can be described as Statement of Claim – Revision 7 (Revision 7). The statement of claim currently filed is Revision 6. Revision 6 was filed before the matter was listed for trial.
For the reasons which follow, I grant the application despite it being likely that the trial will need to be adjourned.
Background
The applicant commenced these proceedings on 31 May 2023. The applicant is the lessee of premises at Basket Range known as The Manor (the premises). The respondent is the lessor. The applicant conducts a wedding function and accommodation business at the premises.
The lease is dated 12 February 2018. The respondent has refused to permit the applicant to renew the lease. The applicant says the reason given by the respondent for that refusal is an alleged failure by the applicant to comply with a requirement under the lease with respect to insurance for the premises. Contrary to that, the applicant says that it is the respondent which has contravened the requirements of the lease concerning insurance. The applicant seeks an order for specific performance, requiring the respondent to grant a renewal of the lease and otherwise directing the respondent to carry out the terms of the lease by having a review of rent performed by a valuer, as said to be required by the lease.
The respondent alleges that the applicant is in breach of an implied negative covenant. The respondent further alleges that the applicant is disentitled from exercising the option to renew the lease because of an alleged failure by the applicant to maintain a wastewater system and effluent disposal area for the premises and an alleged failure to paint the premises. As to the former, the applicant says that the wastewater system was defective, had been degraded and that the effluent disposal area had been reduced in size and functionality. It may be observed that the issues in contest with respect to the wastewater and effluent disposal area involve some complexity. More importantly, the resolution of issues that exist with respect to the wastewater and effluent disposal area appear to be ongoing. As to the latter allegation, the applicant says it has painted the premises.
On 6 November 2024, the solicitor for the applicant signed a certificate of readiness for trial. On 5 December 2024, a Judge of this Court ordered that the trial be listed to commence on 7 October 2025 for three weeks. On 12 December 2024, and at a time at which the statement of claim filed was Revision 6, the same Judge made orders which included:
1.The respondent has leave to file an amended defence and an amended cross claim within 48 hours.
2.The applicant has leave to file an amended reply and defence to cross claim by close of business within 4 days of receipt of the amended defence and amended cross claim from the respondent.
3.The respondent is to file a rejoinder, if so advised, by close of business on 20 December 2024.
….
7.The parties have leave to file any interlocutory application as they may be advised by 31 January 2025.
Events after the making of the above orders
On 31 January 2025 at 4:39pm, the applicant filed an interlocutory application to amend its statement of claim accompanied by an affidavit of its solicitor which exhibits what may be described as Revision 7 (version 1). It appears that the interlocutory application was refused on the ground that leave was required. It appears that the solicitor for the applicant was advised of the rejection of the interlocutory application on 3 February 2025. It appears the solicitor for the applicant did not appreciate that leave would need to be granted to file Revision 7 (version 1) if it was done by close of business on 31 January 2025. The applicant’s solicitor appears to have assumed that Order 7 above gave leave to file any interlocutory application, including one to amend the statement of claim. Respectfully, that belief should not have been held given the orders made on 12 December 2024 with respect to an amended defence, amended cross claim, amended reply and amended defence to the cross claim. That is, the utility of at least some of those orders was significantly undermined, if not removed altogether, if an amended statement of claim could be filed without leave as late as 29 January 2025.
Putting that aside, Revision 7 (version 1) was prepared because of a decision to review Revision 6. Revision 7 (version 1) not having been accepted for filing, the solicitor for the applicant made further amendments to that statement of claim resulting in what is Revision 7. The changes between Revision 7 (version 1) and Revision 7 are not particularly substantial. That cannot be said of the differences between Revision 6 and Revision 7. Having prepared Revision 7, the applicant sought the consent of solicitors for the respondent to file Revision 7. It appears that the respondent raised more than one objection to the terms of the amendments proposed. The nature of those objections is not clear on the evidence led in support of this application. It is also not clear on the evidence when Revision 7 was prepared and sent to the solicitors for the respondents, nor the date(s) of any correspondence.
As set out above, on 6 June 2025, the applicant filed an interlocutory application seeking leave to file Revision 7. Plainly enough, that was about four months after notice was given of the rejection of the interlocutory application filed on 31 January 2025. The reason for that delay is not well explained by the applicant. It appears to have been, at least in part, as the result of the belief of the solicitor for the applicant that the respondent had not clearly said that it would not consent to Revision 7 being filed. The correspondence between the parties about Revision 7 was not before me on the application. Nevertheless, there is force in the submission of the respondent that immediately after the applicant was told that any part of the amendments within Revision 7 might not be consented to by the respondent, the applicant should have sought leave to file Revision 7.
The nature of the amendments
On any view, the amendments within Revision 7 are substantial as compared to Revision 6. That having been recognised, it is not necessary to detail the amendments in any substantial way. In short, a new allegation is sought to be advanced with respect to the terms of the lease; the claim, with respect to misrepresentation is amended in material ways; and that part of the claim which relates to the issue of wastewater and effluent disposal, is also the subject of substantial amendments. As to that latter issue, some relevant issues only arose in late 2024 and contributed to the decision to review Revision 6 and, in addition, other matters relevant to that issue appear to have arisen after the matter was set down for trial.
The position of the respondent
The respondent does not oppose all the amendments, but it does oppose those that are the most substantial and detailed. For example, the respondent does not oppose amendments that abandon some aspects of the existing statement of claim and which otherwise simplify or ‘tidy up’ other aspects.
The respondent fairly concedes that all the amendments which are opposed are important and that each could have a significant consequence to the outcome of the proceedings. Nevertheless, with some justification, the respondent submits that some amendments are substantial. It submits that the amendments with respect to the terms of the lease and the misrepresentation claim relate to events which occurred well before December 2024. So much is consistent with the position of the applicant that at least parts of the amendments are the result of a review of the existing statement of claim and reconsideration of existing issues or events which predated the date on which the trial date was set. With some justification, the respondent submits that the amendments with respect to the wastewater and effluent disposal also relate, at least in part, to events before December 2024. However, consistent with what is set out above, the respondent concedes that some matters touching on those issues which have arisen since the trial date was set are ongoing and are unresolved.
As already set out, the respondent submits that if the application is granted, substantial further work will be required. The respondent provided a helpful summary of the nature of that work and what it submits would be the period needed for that work to occur. In short, the respondent submits that, if the application to file Revision 7 is granted, an application to vacate the trial date would have merit. That submission has force given the nature of the amendments which are opposed; the work which might be needed to address the amendments if leave is granted; and other interlocutory applications which might be necessary.
The rules
Rule 3.1 of the Uniform Civil Rules 2020 (SA) (UCR) relevantly provides:
3.1—Overarching obligations
(1)A party or a person appearing or required to appear before the Court must in relation to a proceeding or an appellate proceeding—
…
(j) be prepared for and ready to proceed with a hearing, directions hearing or trial at the appointed time; and
(k) use reasonable endeavours to act promptly and minimise delay.
Rule 151.12 of the UCR provides that a party may not amend a pleading without leave of the Court after the proceeding has been listed for trial.
151.12—Prima facie preclusion of further steps
After the Court lists a proceeding for trial, a party may not—
(a)amend a pleading;
(b)seek particulars of, or strike out of, a pleading;
(c)seek further discovery;
(d)rely on a new expert report; or
(e)seek an interlocutory order that should already have been sought,
without leave of the Court.
The principles
The principles applicable to the disposition of the application to amend the pleadings are established in Aon Risk Services Australia Ltd v Australian National University.[1] In that matter, an action by the plaintiff against its insurers and insurance broker had commenced two years earlier in the ACT Supreme Court. On the third day of the four-week trial, the plaintiff reached a settlement with its insurers. It applied for an adjournment of the trial against the broker to make substantial amendments to its statement of claim against the broker, and to allege a substantially different case from that previously pleaded. The trial judge adjourned the application to amend for two weeks. On the hearing of the application, the plaintiff's solicitor gave evidence that the basis of the application to amend was information received during a mediation which resulted in a settlement of the plaintiff's claim against the insurers. The trial judge reserved his decision. 11 months later he allowed the amendment. In his reasons, he relied upon the High Court's reasons for judgment in Queensland v JL Holdings Pty Ltd[2] that, in determining an application to amend the pleadings, the justice of the case is the paramount consideration. The trial judge found that while the explanation for the delay given by the solicitor was not entirely satisfactory, the new allegations raised real triable issues between the plaintiff and its broker. The matter eventually came before the High Court on appeal. The High Court unanimously allowed the appeal against the trial judge's order granting leave to amend.
[1] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
[2] (1997) 189 CLR 146.
In doing justice between the parties, the High Court emphasised the need to have regard to considerations such as the stage of the proceedings at which the amendment is sought to be made; the impact of the proposed amendments on the progress of the litigation (in particular, the trial); and the additional strain imposed on the opposing party (and its witnesses) by reason of any disruption or delay in the progress of the proceedings. The Court also emphasised the need to consider the broader impact of any disruption or delay in the progress of the proceedings upon other users of the court system, judicial and court resources, and public confidence in the just and efficient resolution of legal proceedings.
In PPG Developments v Capitanio (PPG Development),[3] Doyle J identified that the factors to be considered included:
[3] (2016) 126 SASR 307, [39].
·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and, in particular, the trial).
·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
·Whether the party has had a sufficient opportunity to plead their case earlier.
·The time, cost and inconvenience associated with any delay or disruption of the proceedings.
·The uncertainty and strain of litigation on the parties and their witnesses because of any disruption or delay likely to be occasioned by the amendment.
·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
·The impact upon the public's confidence in the just and efficient administration of justice.
Consideration
I turn to the matters identified by Doyle J in PPG Development.
The nature and importance of the proposed amendment
The amendments are important. As set out above, the respondent conceded that each of the opposed amendments could have a significant impact upon the outcome of the proceedings. It is also the case that the opposed amendments raise allegations of law and substantial new factual issues.
The merits
There are limits to the ability of the Court in assessing the nature and importance of the proposed amendments. If the Court is satisfied that the amendments are not arguable or tenable, that will weigh heavily against the exercise of the discretion.[4] An aspect of the submissions of the respondent was that at least some of the amendments were contrary to the UCR, particularly the requirement for the pleadings to be as concise and accurate as possible and to give fair notice to the respondent so that it is not taken by surprise at, or in preparation for, trial.[5] It is not appropriate to descend into the detail of that submission as it is likely that an application will be made to strike out at least some aspects of Revision 7. It is sufficient to observe, without deciding, that some aspects of the amendments might be at risk of being struck out on the grounds of a lack of clarity or precision. At the same time, given that there is no dispute that the amendments raise issues which might be central to the determination of key issues, and despite criticisms which might be made about their clarity and form, viewed as a whole, I am not satisfied that the amendments are inarguable or untenable.
[4] PPG Development, [64].
[5] UCR rr 67.2(1)(c) and 67.2(2)(c).
The stage of the litigation and the impact and disruption occasioned by the amendment
While an effort was made to file Revision 7 (version 1) on 31 January 2025, and it does not differ in material respects to Revision 7, as touched on above, and with great respect to the solicitor for the applicant, the orders made on 12 December 2024 should not have been construed as permitting the filing of an amended statement of claim without leave, provided that occurred before 31 January 2025. Putting that aside, after the applicant was advised that Revision 7 (version 1) had been rejected, some fourth months passed until 6 June 2025. Further, it is plainly of real significance that a grant of leave to file Revision 7 is likely to cause the trial to be adjourned.
The explanation for the application to amend and its timing
Notwithstanding a submission by the respondent to the contrary, I would not conclude that the timing of the amendment was the product of any tactical decision by the solicitor for the applicant. First, as mentioned, an effort was made to file Revision 7 (version 1) on 31 January, some nine months before trial. Second, Revision 7 was sent to the solicitors for the respondent before 6 June 2025 and there has been correspondence about the amendments. Such things do not sit comfortably, without more, with an attempt to gain a tactical advantage. Nevertheless, it remains that the explanation for the delay after 3 February 2025 is unsatisfactory.
The applicant has filed two affidavits explaining the delay. I have set out aspects of that explanation above. Putting aside the mistaken belief about what was permitted before 31 January 2025, as mentioned, about four months passed between 3 February 2025 and 6 June 2025. The explanation for that delay is not as fulsome, nor as satisfying, as it might have been. As for why the review which resulted in Revision 7 (version 1) could not have occurred at an earlier time, the explanation is that the solicitor for the applicant reviewed Revision 6 and decided that other matters should be pleaded. A fair reading is that this was only in part influenced by information which only became known in late 2024. That is, for the most part, the review could have occurred earlier and was the result of a decision to re-consider events which had occurred before the orders were made on 12 December 2024.

As for the delay since 3 February 2025, that appears to have been the result of a hope that the respondent might consent to the amendments and/or the result of a mistaken belief that the solicitor corresponding about aspects of the amendments meant that the respondent may later resolve to consent. Respectfully, that appears to have been naïve, but I do not doubt that it was a belief which was genuinely held and was genuinely thought to warrant the delay.
In PPG Developments, Doyle J observed that while the courts are reluctant to visit the parties with the consequences of oversight by their legal representatives, the courts should not be too willing to permit amendments simply because they are the product of further or more detailed consideration being given to an issue by a party’s legal representatives. In this case, respectfully, a fair conclusion, and one that I draw, is that the delay is caused by the oversight and/or mistake of the solicitor for the applicant. Oversight or mistake in not conducting a more timely review of Revision 6; oversight or mistake in believing that Revision 7 (version 1) could be filed without a successful application for leave; oversight or mistake in considering that it was appropriate to wait for the solicitor for the respondent to expressly state that it would oppose leave being given to file Revision 7; and oversight or mistake in failing to act immediately that it was known that leave would be opposed with respect to any substantial aspect of Revision 7.
It follows that the observations to which Doyle J referred pull in opposite directions. Given the concession that, if leave is granted, the amendments may be material to the determination of the proceedings, I should be reluctant to disadvantage the applicant in a material way as a result of the mistake or oversight of its solicitor. At the same time, I should not be too willing to grant the application given that it is substantially based upon a reconsideration of the issues which existed before a trial date was set.
Sufficient earlier opportunity to plead
Relevant to the views expressed above, the applicant had sufficient earlier opportunity to make at least most of the more substantial amendments. It can be accepted that issues surrounding the effluent disposal were raised as the result of a compliance notice in late 2024. However, that was well before 6 June 2025 and is not the only matter, the subject of the amendments.
The time, cost and inconvenient associated with any delay and disruption
I have approached the application on the basis that if it is granted, it is likely the trial will be adjourned. It is to be assumed that the delay and time lost will be considerable. It is also likely that additional costs will be occasioned, but that must be considered bearing three matters in mind. First, as mentioned, the amendments are conceded as being significant and material. Second, as I understood the submissions, it was conceded that, if not pursued in these proceedings, at least some issues could be advanced in separate proceedings. That would be undesirable. Third, it was not submitted that substantial work had commenced in preparation for a trial that is still about three months away.
The uncertainty and strain of litigation
It may be accepted that delay will place a strain upon those persons behind the respondent as well as its witnesses.
The impact upon judicial and court resources
It may be accepted that court resources will be adversely impacted. If the trial date is vacated, that time will not be used for another civil trial. The respondent also submitted that resources will be used on interlocutory applications if the amendments are permitted. That may be accepted, but that will occur in the context of it being conceded that the amendments are material and so I do not consider that to weigh against the application being granted.
Public confidence
It may be accepted that an adjournment of the trial will undermine public confidence. Further, the nature of these proceedings may be characterised as commercial. In commercial litigation, the imperative to timely and efficient disposition of legal disputes is well understood.[6] That said, this was not a consideration that formed any aspect of the submissions of the respondent.
[6] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 223.
Conclusion
As may be obvious, there are matters weighing against it being appropriate to grant the application. The most significant are the explanation for the delay in making the application; the likely adjournment of the trial; the impact upon those connected to the proceedings; and the impact upon public confidence in the efficient administration of justice.
At the same time, it is accepted that the amendments raised significant issues which may be central to the resolution of the proceedings and, while the delay and the explanation for it are unsatisfactory, it is appropriate to be reluctant to visit the applicant with what appears to be the consequences of oversight and mistake by its solicitor. Further, it is significant that if the amendments are not permitted, there is some risk of a multiplicity of proceedings. Further still, some amendments relate to the issue of wastewater and effluent disposal, a matter about which potentially relevant events have occurred since the trial date was set. The respondent conceded that, given events which had occurred since the effort to file Revision 7, it was likely that it would need to amend its pleadings.
In the circumstances, I grant the application to amend the statement of claim and grant the application to file Revision 7.
I will hear the parties as to any further orders which might be appropriate.

[2025] SASC 114

15 July 2025