Wang v Lo

[2025] NSWDC 413

District Court

New South Wales

Medium Neutral Citation:

Wang v Lo [2025] NSWDC 413

Hearing dates:

26 March 2025, 16 April 2025, 7 May 2025, 29 May 2025, 24 July 2025

Date of orders:

20 October 2025

Decision date:

20 October 2025

Jurisdiction:

Civil

Before:

Cole DCJ

Decision:

(1)   Pursuant to the Civil Procedure Act 2005, s 14, the requirement of r 7.22 of the Uniform Civil Procedure Rules 2005 that the plaintiffs take no further steps beyond the filing and serving of originating process and steps to ascertain the name and residential address of the defendant until the documents in the proceedings have been amended as referred to in subrule (1)(b) of r 7.22 is waived.

(2)   The plaintiffs have leave to amend the statement of claim to substitute for the third defendant, Tofu King, Mr Ting Ting Wu and Auslong Enterprises Pty Ltd ACN 607 561 286.

(3)   The amended statement of claim is to be filed on or before 31 October 2025.

(4)   Service of the amended statement of claim on Mr Wu and Auslong Enterprises Pty Ltd is to be effected by the delivery of the amended statement of claim to Ms Wen Qing Chen, solicitor for Tofu King, on or before 7 November 2025.

(5)   The matter is listed for a further directions hearing at 9:30am on 20 November 2025.

Catchwords:

CIVIL PROCEDURE – Service – where proceedings are commenced against an unregistered business name – ascertainment of true defendants – amendment of statement of claim

Legislation Cited:

Civil Procedure Act 2005

Conveyancing Act 1919

Uniform Civil Procedure Rules 2005

Category:

Procedural rulings

Parties:

Wenjun Wang (First Plaintiff)
Ping Zhang (Second Plaintiff)
Simon Shing Fung Lo (First Defendant)
Zhong Qiang Li (Second Defendant)
Tofu King (Third Defendant)

Representation:

Counsel:
M Collins (Plaintiffs)
W Soon (Second Defendant)

Solicitors:
AHD Lawyers (Plaintiffs)
TY Lawyers (Second Defendant)
ILC Law (Third Defendant)

File Number(s):

2024/92922

Publication restriction:

Nil

JUDGMENT

1. A statement of claim was filed in this matter on 5 March 2024 on behalf of Wenjun Wang (‘the first plaintiff’), and Ping Zhang (‘the second plaintiff’). The named defendants to the action are Simon Shing Fung Lo, Zhong Qiang Li and Tofu King.

2. The plaintiffs’ claim relates to a commercial building in Hurstville (‘the building’), which is the subject of Strata Plan 32461, which created six strata lots and common property at that premises.

3. The plaintiffs own Lot 6 as tenants in common. Lot 6 has an area of 7 square metres on the ground floor of the building (which is used as a storage area) and, directly above that ground floor area, an area of about 87 square metres on the first floor of the building.

4. Mr Lo and Mr Li are the owners of Lot 2, which is on the ground floor of the building.

5. The rear wall of Lot 2 is a common wall between Lot 2 and the Lot 6 ground floor area.

6. The allegations in the statement of claim, in broad summary, are that Mr Lo and Mr Li arranged for the installation of an exhaust system from the rear of Lot 2, extending through the air space of Lot 6. The part of the exhaust system which remains in the ground floor area of Lot 6 is a rectangular service duct approximately 1.35 metres high, with a footprint of 2.6 square metres, which is suspended from the ceiling of the Lot 6 ground floor area. There is also a service duct within the first floor air space which is a rectangular service duct with a footprint of about 0.85 of a square meter which extends from the floor to the ceiling of the Lot 6 first floor office. It is alleged in the statement of claim that the installation of the exhaust system began on an unknown date and continued until about June 2022.

7. The plaintiffs’ claim that they did not authorise the installation of the exhaust system or the ongoing presence of the ducting within Lot 6. The plaintiffs allege that Mr Lo and Mr Li committed trespass when installing the ducts and that the third defendant is committing continuing trespass by the use of the ducts which remain in Lot 6.

8. The third defendant, Tofu King, is alleged to be the person who carried on business from Lot 2 since about November 2022 under the unregistered business name “Tofu King” (SoC paragraph 7).

9. The plaintiffs also allege nuisance.

10. The plaintiffs seek damages.

11. The plaintiffs say that they asked the defendants, in a letter dated 22 December 2023, to remove the ducts and remediate the damage caused to the premises by the installation of the ducts.

12. The first and second defendants filed a defence to the statement of claim on 14 May 2024. Tofu King has not filed an appearance or a defence.

Notice of Motion

13. By Notice of Motion filed on 28 May 2025 (‘the Notice of Motion’), the plaintiffs seek the following orders:

1. Pursuant to r 7.20(3) of the Uniform Civil Procedure Rules 2005 (NSW):

(a)   any judgment entered by the Court against the third defendant in the proceedings is enforceable against Auslong Enterprises Pty Ltd ACN 6077777 561 286; and

(b)   any judgment entered by the Court against the third defendant in the proceedings is enforceable against Ting Ting Wu.

2.   In the alternative to 1 above:

(a) pursuant to r 7.22(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) and s 64 of the Civil Procedure Act 2005 (NSW), the references on page 12 and page 13 of the statement of claim filed on 5 March 2024 to the name of the third defendant being “Tofu King” are taken to be amended such that the name of the third defendant is “Auslong Enterprises Pty Ltd ACN 607 561 286 and Ting Ting Wu”; and

(b)   the Court dispenses with any requirement to file or serve any amended statement of claim.   

3.   The third defendant pay the plaintiffs’ costs of this notice of motion.

14. At the hearing in relation to the Notice of Motion, the plaintiffs were represented by Mr Collins and Tofu King was represented by Mr Oliveri. The first and second defendants did not participate in the hearing of the Notice of Motion.

Service of the statement of claim on Tofu King

15. The trial of the matter began on 26 March 2025. The plaintiffs were represented, and so was the second defendant. The first defendant and the third defendant did not appear.

16. The statement of claim was filed on 5 March 2024. On 13 May 2024, the Judicial Registrar made an order extending the time for service on Tofu King to 28 May 2024.

17. The solicitor for the plaintiffs, Mr Liang, swore an affidavit on 5 March 2025 (‘Mr Liang’s third affidavit’) in the matter. In that affidavit, Mr Liang said, in summary:

• a search of the ASIC business name records on 14 February 2025 (‘Annexure A’) says that the ABN for Tofu King was not available and had been cancelled. Under “Address” the search says “Melbourne Vic 3000”,

• annexure B to the affidavit is a screen shot of a Google Maps search undertaken by Mr Liang on 14 February 2025, which showed Tofu King at “Shop 2” of the building.

• annexure C to the affidavit is a copy of a letter dated 6 May 2024 directed to:

Tofu King

Shop 2/1 Rose Street

Hurstville NSW 2220

The letter said that it enclosed, by way of service, a copy of the statement of claim filed on 5 March 2024 and gave notice of the pre-trial conference listed for 14 May 2024. Annexure D to the affidavit is a copy of an email from Australia Post to Mr Liang. It says “… your parcel was scanned as delivered on 08.05.2024”. The receipt of this email followed an enquiry concerning the delivery of the letter and documents that Mr Liang made of the employee of Australia Post who signed the letter,

• Mr Liang attended at the building on 12 February 2025. He purchased a drink from Tofu King at the premises, and the receipt in relation to that purchase is annexure E to his affidavit, and bears the name Tofu King and the address of Unit 2 in the building. Mr Liang took two photographs of Unit 2 showing the Tofu King signage at the top of the door into Unit 2.

18. The plaintiffs submitted that the letter of 6 May 2024 constituted service by post on Tofu King under r 10.9(2)(b) of the UCPR.

19. In Exhibit HL-1 to his affidavit of 6 May 2025, Mr Li provides a copy of a letter dated 23 January 2025 sent to Mr Wu at Unit 2. The letter referred to the service of the statement of claim and noted that Mr Wu had not filed a defence. The letter gave Mr Wu notice of the hearing date of 26 March 2025. The letter further said:

Once our clients obtain judgment against Tofu King, that judgment will be enforced against any person operating the Tofu King business, including you as the lessee under the lease.

20. A copy of the letter of 23 January 2025 was sent to Mr Wu at an address in Hurstville, obtained from ASIC records, on 14 February 2025.

21. The plaintiffs’ solicitors received an email from Pobi Lawyers on 21 February 2025. Mr Michael Pobi said, in the email, that Pobi Lawyers was acting for Tofu King and instructed “to provide legal advice at this stage, but have not been engaged to appear in the proceedings at this time”. Mr Pobi noted the trial date. Mr Pobi asked to be provided with the following documents:

-   The sealed Statement of Claim and any sealed Amended Statement of Claim (if applicable);

-   Any lay and expert evidence relied on by your client;

-   Any Notices of Hearing, particularly in relation to the listing on 26 March 2025; and

-   Any other documents filed and served in the proceedings.

22. On the same day, by return email, the solicitors for the plaintiffs provided Pobi Lawyers with the following:

• The sealed statement of claim,

• The affidavit of Wenjun Wang and its exhibit,

• The affidavit of Patrick O’Donnell, and

• The affidavit of William Harmer.

23. On 25 February 2025, Mr Pobi sent a further email to the plaintiffs’ solicitors saying, in part:

I am instructed to request that your client refrain from taking any steps that would prejudice our client’s ability to prepare and provide a defence or otherwise defend this claim for a period of 14 days, while we seek our client’s further instructions.

24. On 26 February 2025, Mr Pobi sent another email to the plaintiffs’ solicitors, advising that Pobi Lawyers were no longer acting for Tofu King.

25. On 24 March 2025, the plaintiffs’ solicitors asked Mr Pobi for Tofu King’s email address to enable the provision to Tofu King of documents to be used at the trial, including the court book. Mr Pobi replied, saying that he was no longer acting and did not have instructions to respond.

26. On 26 March 2025, at the conclusion of evidence and submissions from the parties present, an order was made.

27. The plaintiffs’ solicitors obtained documents from Pobi Lawyers under subpoena. The plaintiffs’ solicitors emailed Mr Wu at an email address in one of the documents produced. Subsequently, Mr Wu sent an email to the Court, copied to the plaintiffs’ solicitors, among others, saying:

Dear Principle Registrar and Judge,

My name is Ting Ting Wu.

Please do not send to this email address any future communication in relation to these proceedings. I do not agree to be communicated in relation to these proceedings.

Thank you.

Sincerely Yours,

Ting Ting Wu.

28. The matter was before the Court again on 16 April 2025. Mr Wu appeared on that occasion, with an interpreter. The following exchange took place:

HER HONOUR: Mr Wu, can I ask you, were you served with the statement of claim in this matter?

INTERPRETER: No. I haven't seen.

HER HONOUR: Have you seen it?

INTERPRETER: I received a letter on 28 March. It is that order from the Court. That is the - it was given to me by the plaintiff's solicitor.

HER HONOUR: Is that the only notice that you've had of these proceedings?

INTERPRETER: Correct.

29. Subsequently, the plaintiffs filed the Notice of Motion on 28 May 2025, and it was heard on 24 July 2025. Tofu King was represented by Mr D Oliveri at the hearing. Both parties provided written submissions.

30. In the written submissions for the defendant, it was admitted that Mr Wu is the lessee of Unit 2. It was said that “…the owner of the Tofu King business is Auslong Enterprises Pty Ltd. The Trade Mark, the financial statements and the tax returns all demonstrate that Auslong Enterprises Pty Ltd is the owner of the business”.

31. It was further submitted, in the defendant’s written submissions:

Auslong Enterprises is not the lessee of the premises but is clearly the tenant. Even though there is no written evidence of a sub-lease or licence, the financial statements clearly indicate that it pays all the rent and outgoings relating to its occupation of the premises for the purpose of running the business. There is therefore an implied sublease or licence from Ting Ting Wu in favour of Auslong Enterprises Pty Ltd.

Relevant legislation and rules

32. The Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) provide, relevantly, as follows:

7.19   Persons to sue and be sued in own name

Subject to this Division, persons are to sue and be sued in their own names, and not under any business name.

7.20   Proceedings against defendant operating under unregistered business name

(1)  Proceedings against a person in respect of anything done or omitted to be done by the person in the course of, or in relation to, a business carried on under an unregistered business name may be commenced against that person, as defendant, under that name.

(2)  For the purposes of any such proceedings, the unregistered business name is taken to be a sufficient description of that person.

(3)  Any judgment or order arising from any such proceedings may be enforced against that person.

7.21   Defendant sued in business name to respond in own name

(1)  In any proceedings in which a defendant is sued under a business name, the defendant must not enter an appearance or file a defence otherwise than in his or her own name.

(2)  When entering an appearance or filing a defence, the defendant must also file a statement of the names and residential addresses of all persons who were carrying on business under the business name concerned when the proceedings were commenced.

(3)  The court may order that a defendant’s notice of appearance or defence be struck out if the defendant has failed to comply with subrule (2).

7.22   Plaintiff to amend documents in the proceedings to replace business name with defendant’s own name

(1)  In any proceedings in which a defendant is sued under a business name, the plaintiff must take such steps as are reasonably practicable—

(a)  to ascertain the name and residential address of the defendant, and

(b)  to amend such documents in the proceedings as will enable the proceedings to be continued against the defendant in his or her own name.

(2)  In any such proceedings, the plaintiff may not, except by leave of the court, take any step in the proceedings other than—

(a)  the steps of filing and serving originating process, and

(b)  steps to ascertain the name and residential address of the defendant,

until the documents in the proceedings have been amended as referred to in subrule (1)(b).

…

10.9   Service of process on defendant operating under unregistered business name

(1)  This rule applies to any proceedings against a person in respect of anything done or omitted to be done by the person in the course of, or in relation to, a business carried on under an unregistered business name.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the unregistered business name—

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at any place at which business is carried on under that name, or

(b)  by sending it by post, addressed to the defendant, to any place at which business is carried on under that name,

whether or not the place concerned is within New South Wales.

(3)  For the purposes of any such proceedings—

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left, or to which the document is sent by post, is taken to be the place of service of the document, and

(c)  in the case of a document sent by post, the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

33. The Civil Procedure Act 2005 (‘CPA’), in s 64 says:

64   Amendment of documents generally

(1)  At any stage of proceedings, the court may order—

(a)  that any document in the proceedings be amended, or

(b)  that leave be granted to a party to amend any document in the proceedings.

(2)  Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.

(3)  An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4)  If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.

(5)  This section does not apply to the amendment of a judgment, order or certificate.

The parties’ submissions

Plaintiffs’ submissions

34. The plaintiffs submitted, and I accept, that Mr Wu is the sole director and shareholder of Auslong Enterprises Pty Ltd (‘Auslong’) (see ASIC record at CB 298).

35. The plaintiffs submitted that Tofu King was served in accordance with r 10.9(2)(b) of the UCPR on 13 May 2024, being seven days after the statement of claim was posted to Lot 2 on 6 May 2024.

36. The plaintiffs argued that the UCPR require no more of them than service on Tofu King. It is not necessary, under the UCPR, that the plaintiff prove that Mr Wu, or Auslong, actually became aware of the proceedings. However, it was said, it is clear that Mr Wu, and therefore Auslong, actually did become aware of the proceedings. Mr Wu sought legal advice from Pobi Lawyers. Pobi Lawyers received a further copy of the statement of claim, and other documents used in the hearing, on 25 February 2025, as Tofu King’s solicitors on behalf of Tofu King.

37. It was pointed out by the plaintiffs that Mr Wu instructed Pobi Lawyers to cease acting. Mr Wu did not seek to appear at the hearing, either by counsel or as a self-represented party.

38. The plaintiff submitted that the effect of r 7.20(1) of the UCPR is that proceedings against Tofu King constitute proceedings against any person “in respect of anything done or omitted to be done by the person in the course of, or in relation to” the Tofu King business. It was argued that a judgment in relation to a claim against Tofu King can be enforced against any such person.

39. The plaintiff submitted that a relevant question is whether these proceedings are proceedings against Auslong and/or Mr Wu in respect of anything done or omitted to be done by Auslong and/or Mr Wu in the course of or in relation to Tofu King.

40. The plaintiffs pointed to clause 14 of the Statement of Claim, which alleges:

14.   The first defendant and the second defendant, or their agents, entered Lot 6 for the purpose of undertaking the Works without notice to or consent of the plaintiffs.

The “Works” referred to are the works “for the installation of an exhaust system from the rear of the Lot 2 Shop which extended through the cubic space of Lot 6”. The exhaust system installed is referred to as the “Plant” (Statement of Claim clause 13).

41. The plaintiff argued that allegations against Auslong and Mr Wu are included in clause 14 by the allegations against “their agents” (“their” referring to the first and second defendant).

42. The following allegations are made in clause 22 of the statement of claim:

22.   Since the time it took possession of Lot 2 in about November 2022, the third defendant has had ongoing use of the Plant.

43. The plaintiffs argue that these are allegations which bring Auslong and Mr Wu within the scope of r 7.20(1).

44. The plaintiffs rely on evidence given at the trial that Mr Wu is the lessee of Unit 2. The terms of the lease require Mr Wu to “maintain the property in its condition at the commencement date” (cl 7.2 HL-1 p 159). The lease also provides that the lessee “must not make any structural alterations to the property” and that “other alterations require the landlord’s consent in writing” (cl 7.6 HL-1 p 159). The commencement day of the lease of Unit 2, which was 1 January 2022, was prior to the undertaking (or, perhaps, the completion) of the works (see HL-1 p 146).

45. The plaintiffs also rely on evidence given at the trial by Ms Wang, the first plaintiff, about what she was told in a telephone call to Tofu King about who installed the exhaust system.

46. The plaintiffs submitted, in their written submissions:

32.   The Works and the ongoing use of the Plant are things “done…in the course of, or in relation to” the Tofu King business by Mr Wu, because as the tenant under the lease, he was responsible for maintaining Lot 2 and he was the only person who had the right to make alterations to Lot 2 (subject to the consent of the first and second defendants). If Auslong or any other person undertook the works, they did so as an agent of Mr Wu as the tenant.

33. However, Auslong is also a “person” for the purposes of r 7.20 who was responsible for the Works and the ongoing use of the Plant, where it is apparent the entity which operates the Tofu King business. Mr Wu’s affidavit of 20 June 2025 is apparently relied on to demonstrate that Auslong, being a company of which Mr Wu is the sole director and the sole shareholder, operates the Tofu King business in the sense that it is the entity responsible for the finances of the business.

34.   But as noted above, there is no relevant distinction between Mr Wu and Auslong here where they both occupy Lot 2 and are associated with the operation of the Tofu King business – Mr Wu as the formal tenant of the premises and beneficial owner of Auslong, and Auslong as the entity responsible for the Tofu King business’ financial activity.

35.   In those circumstances, the acts and omissions associated with the Works and the use of the Plant are acts and omissions for both Mr Wu and Auslong.

47. The plaintiffs submitted that, were a judgment to be entered against Tofu King, the practicalities of enforcing such a judgement against Mr Wu and Auslong are uncertain. For that reason, an order in terms of prayer 1 of the Notice of Motion is sought.

48. The plaintiffs argued that they complied with r 7.22 in taking the following steps to ascertain the name and address of the persons associated with Tofu King:

1. issuing a subpoena to the first defendant to obtain the lease;

2. writing to the strata manager seeking details of Tofu King;

3. a telephone conversation between the plaintiff’s solicitors and the strata manager;

4. a subpoena to the strata manager;

5. correspondence and a subpoena to solicitors acting for “Tofu King”, as addressed above;

6. correspondence issued to the “Occupier” of Lot 2;

7. correspondence issued to Mr Wu;

8. correspondence issued to “Tofu King” and a notice to produce issued to “Tofu King”;

9. making a purchase from the Tofu King premises in order to obtain a tax invoice with ABN details; and

10. searches of ASIC records.

49. The plaintiff notes that the first and second defendants, in their defence and evidence at the trial did not assist in identifying the operators of the Tofu King business in any way.

50. There is evidence in HL-1 that the plaintiffs took the steps set out in [48] above.

51. The plaintiffs argued that it should be implied that leave had been given by the Court to take further steps in the proceedings under r 7.22(1)(b) because the Court made directions for the service of evidence and the setting down of the matter for hearing. If leave cannot be implied, the plaintiffs seek to have the Court now grant such leave nunc pro tunc or, alternatively, to dispense with the requirement to comply with r 7.22(2) of the UCPR under s 14 of the CPA. It was argued that the following matters support the giving of leave or the dispensing with the need for leave (plaintiffs’ written submissions paragraph 43):

1. Tofu King is deemed to have been personally served with the statement of claim in May 2024;

2. in addition to postal service, the statement of claim was left with a person at the Tofu King premises in April 2024;

3. no appearance or defence was filed by Tofu King prior to the hearing;

4. various correspondence was issued to Tofu King and to Mr Wu;

5. Mr Wu engaged solicitors to act for “Tofu King” no later than February 2025, and the solicitors were aware of the 26 March 2025 hearing listing and were provided with all of the pleadings and evidence on 21 February 2025; and

6. Mr Wu made a conscious decision not to appear at the hearing, on his own behalf, on behalf of Auslong or on behalf of “Tofu King” at all.

52. In support of the alternative application in the Notice of Motion (prayer 2), it was argued that r 7.22 of the UCPR does not require any formal substitution or joinder of parties, but requires only the replacement of the unregistered business name in the court documents with the name of the relevant person (or persons). It was argued that r 7.22 does not refer to these changes being relevant to enforcement, in contrast to r 7.20(3) of the UCPR.

53. The plaintiffs submitted that, in the circumstances of these proceedings, it was not reasonably practicable for the plaintiffs to amend the statement of claim prior to the trial. It was unclear up to the commencement of the trial on 26 March 2025 whether there would be an appearance on behalf of Tofu King.

54. It was submitted that, although the information gathered about the identity of persons behind Tofu King may not be complete, it is clear that Auslong and Mr Wu are such persons.

55. The plaintiffs submitted that, if the Court requires compliance with r 7.22, an order in the form of prayer 2 should be made.

Tofu King’s submissions

56. It was conceded by Tofu King that Mr Wu is the lessee of Unit 2.

57. The following was also conceded in Tofu King’s written submissions:

3.   It is also clear from the evidence contained in Mr Wu’s affidavit, that the owner of the Tofu King business is Auslong Enterprises Pty Ltd. The Trade Mark, the financial statements and the tax returns all demonstrate that Auslong Enterprises Pty Ltd is the owner of the business.

58. It was submitted that Auslong is the tenant of Unit 2. It was conceded that there is no sub-lease or licence, but the financial statements show that Auslong pays all the rent and outgoings relating to the occupation of Unit and for the running of the business. Tofu King submitted, in its written submissions:

There is therefore an implied sublease or licence from Ting Ting Wu in favour of Auslong Enterprises Pty Ltd.

59. Tofu King submitted that the effect of r 7.20 of the UCPR is that once the owner of an unregistered business is identified, any judgment or order against the unregistered business will be enforced against that owner. This is in keeping with the general rule in r 7.19 that persons are to be sued in their own name and not under a business name.

60. Tofu King submitted that r 7.20 of the UCPR does not permit a plaintiff to add as a defendant a person who is not carrying on the unregistered business just because that person is the sole director and shareholder of the entity that is carrying on the business. Rule 7.20 does not authorise the piercing of the corporate veil.

61. Reference was made to the filing of appearances by Mr Wu and Auslong. No such appearances have been filed, however. Tofu King, in its submissions, may have been referring to the Notice of Appointment of a Solicitor filed by Auslong on 6 May 2025.

62. Tofu King argued that the plaintiffs knew the identity of the proper third defendant prior to the trial on 26 March 2025 and failed to amend the statement of claim as required by r 7.22.

63. Tofu King acknowledged that the issue in relation to the service of the statement of claim was not whether Mr Wu or Auslong understood that they had been served with legal proceedings, but whether service had been effected under the rules. It was acknowledged that the evidence provided by the plaintiffs could be accepted in relation to the service of the statement of claim.

64. It was argued, however, that the correct statement of claim has not been served. It was said that, under r 7.22, an amended statement of claim should have been served, with Auslong named as the third defendant instead of Tofu King. As no such amended statement of claim exists, proper service has not been effected.

65. In the alternative, Tofu King argued, if the court finds that service has been effected, the proper third defendant is Auslong and not Mr Wu.

Consideration

66. I find that Mr Wu was, at all material times, the lessee of Unit 2.

67. I reject the contention that Auslong became the sublessee of Unit 2 by way of an implied sublease. There is no written sublease between Mr Wu and Auslong. The Conveyancing Act 1919 provides:

23C   Instruments required to be in writing

(1)  Subject to the provisions of this Act with respect to the creation of interests in land by parol—

(a)     no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law,

…

68. There is no suggestion that any interest has been created by parol.

69. A licence is not an interest in land. Even if it were accepted that Auslong has a licence to occupy Unit 2, Mr Wu would still be the lessee.

Was service effected on Tofu King

70. I accept that service is taken as having been effected on Tofu King on 13 May 2024 under r 10.9(2)(b) as a result of the statement of claim being posted on 6 May 2024.

71. Service was effected again on 21 February 2025 when the statement of claim and the affidavits in the plaintiffs’ case were provided to Mr Pobi, who was then acting for Tofu King.

72. When Mr Wu appeared with an interpreter in Court on 16 April 2025, he indicated that he had not seen the statement of claim and that a letter given to him on 28 March 2025 was the only notice that he had of the proceedings. I think the exchange in which these indications were given by Mr Wu may have been affected by miscommunication, and I do not give them great weight. In any event, even if Mr Wu had not seen the statement of claim, Tofu King had clearly been served with it. Mr Wu was clearly aware of it.

Is Mr Wu a person who allegedly did, or omitted to do, something in the course of, or in relation to, the business carried on by Tofu King which is the subject of these proceedings within the meaning of r 7.20(1)?

73. It was argued for the plaintiffs that Tofu King acted as an agent for the first and second defendants. I reject that contention. Agency for the first and second defendants by Tofu King was not expressly pleaded in the statement of claim. The plaintiffs relied on paragraph 14 of the statement of claim, which says:

14.   The first defendant and the second defendant, or their agents, entered Lot 6 for the purpose of undertaking the Works without notice to or consent of the plaintiffs.

This does not constitute a pleading that the third defendant was the agent of the first and second defendant. The UCPR, in r.15.1(1) requires that a pleading give such particulars as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet, and neither paragraph 14 or any other paragraph of the statement of claim provides any such particulars.

74. Mr Wu is the lessee of Unit 2. The lease commenced on 1 January 2022. It has been conceded, on behalf of Tofu King, that Tofu King is owned by Auslong. Mr Wu is the sole director and shareholder of Auslong. In pleading nuisance, the plaintiffs rely on an inference in the statement of claim that the exhaust system was installed for the benefit of Tofu King. Mr Wu is the only natural person who has been identified as being in a position to communicate the requirements of Tofu King to enable it to trade from Unit 2.

75. As the sole director of Auslong, Mr Wu is the decision-maker in relation to the business of Tofu King. Tofu King has benefitted from the continuing use of the exhaust system which is present within Unit 6 on an on-going basis since sometime in 2022.

76. For these reasons, I determine that Mr Wu is a person who allegedly did something in the course of, or in relation to the business carried on by Tofu King, which is the subject of these proceedings.

Is Auslong a person who allegedly did, or omitted to do, something in the course of, or in relation to, the business carried on by Tofu King which is the subject of these proceedings within the meaning of r 7.20(1)?

77. Auslong owns the trademark for Tofu King and pays its expenses. Obviously, Tofu King does not have legal personhood.

78. The inference that can be drawn from the statement of claim that the exhaust system was installed for the benefit of Tofu King gives rise to the determination that Auslong is a person who allegedly did something in the course of, or in relation to, the business carried on by Tofu King which is the subject of these proceedings in the same way as it does in relation to Mr Wu. Mr Wu acts both as the leaseholder and as the director of Auslong. Auslong, as the owner of Tofu King, has also benefitted from the continuing use of the exhaust system which is present within Unit 6, for the business undertaken in the name of Tofu King, on an on-going basis since sometime in 2022.

79. For these reasons, I determine that Auslong is a person who allegedly did something in the course of, or in relation to the business carried on by Tofu King which is the subject of these proceedings.

80. I accept that aspects of the relationship between Tofu King, Mr Wu and Auslong were unclear to the plaintiffs until the service of Mr Wu’s affidavit of 20 June 2025.

81. The plaintiffs are in breach of r 7.22 of the UCPR in that they have taken steps in the proceedings prior to amending the statement of claim to include Mr Wu and Auslong.

82. The CPA provides, in s 14:

In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.

83. In all of the circumstances, this is an appropriate case in which to dispense with the requirement of r 7.22(2) that the plaintiffs take no further steps in the proceedings until the documents in the proceedings are amended to identify the persons behind the unregistered business name.

84. I will give leave to the plaintiffs to amend the statement of claim to substitute Auslong and Mr Wu for Tofu King as the third defendant.

85. I note that no appearance or a defence has, to date, been filed for Tofu King. Had an appearance or defence been filed, r 7.21 would have required that it be in the names of Auslong and Mr Wu.

Orders

86. The following orders will issue:

1. Pursuant to the Civil Procedure Act 2005, s 14, the requirement of r 7.22 of the Uniform Civil Procedure Rules 2005 that the plaintiffs take no further steps beyond the filing and serving of originating process and steps to ascertain the name and residential address of the defendant until the documents in the proceedings have been amended as referred to in subrule (1)(b) of r 7.22 is waived.

2. The plaintiffs have leave to amend the statement of claim to substitute for the third defendant, Tofu King, Mr Ting Ting Wu and Auslong Enterprises Pty Ltd ACN 607 561 286.

3. The amended statement of claim is to be filed on or before 31 October 2025.

4. Service of the amended statement of claim on Mr Wu and Auslong Enterprises Pty Ltd is to be effected by the delivery of the amended statement of claim to Ms Wen Qing Chen, solicitor for Tofu King, on or before 7 November 2025.

5. The matter is listed for a further directions hearing at 9:30am on 20 November 2025.

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Decision last updated: 20 October 2025