X P Hua v M S Tuckerman - [2017] NSWSC 1147

Supreme Court

New South Wales

Medium Neutral Citation: X P Hua & Anor v M S Tuckerman & Ors [2017] NSWSC 1147
Hearing dates: 19 July 2017
Decision date: 19 July 2017
Jurisdiction: Equity - Corporations List
Before: Black J
Decision:
The Plaintiffs’ application for leave to file a Second Further Amended Statement of Claim is dismissed with costs.

Catchwords: CIVIL PROCEDURE — Pleadings — Amendment – where one Defendant against whom amendments to pleadings are sought to be made not served with amendment application – where amendment would require Defendants to address events many years after they occurred – where amendment would prolong proceedings.
Legislation Cited: - Civil Procedure Act 2005 (NSW), ss 56–58, 62, 64–65
- Limitation Act 1969 (NSW), s 26
Cases Cited: - Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
- Bi v Mourad [2010] NSWCA 17
- Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423
- Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
- Morony v Reschke [2015] NSWSC 860
Category: Procedural and other rulings
Parties: Xiao Ping Hua (First Plaintiff)
Lu Sheng Song (Second Plaintiff)
Michael Shane Tuckerman (First Defendant)
Paul James Devine (Second Defendant)
Stephen John McLaren (Third Defendant)
George Beavis (Fourth Defendant)
William Gregory Wade (Fifth Defendant)
Fang Huai Lim (Sixth Defendant)
Link Lawyers Pty Ltd (Seventh Defendant)
ABC World Pty Ltd (Eighth Defendant)
Kaifeng Shu (Ninth Defendant)
Richard Zuwen Yuan (Tenth Defendant)
MST Investment Corporation Limited (Eleventh Defendant)
Gosford 19-21 Project Pty Ltd (Twelfth Defendant)
Representation:
Counsel:
I G Archibald (Plaintiff)
I Raine (submitting appearance – First and Second Defendants))
B Heath/C Breen (Solicitors – Eighth and Tenth Defendants)
Solicitors:
McQui Lawyers (Plaintiffs)
Carter Newell (Eighth and Tenth Defendants)

File Number(s): 2014/117476

Judgment – ex tempore (revised 28 july 2017)

These proceedings have a long and somewhat unfortunate history to which I have referred in earlier judgments and which I need not repeat. The proceedings were commenced in April 2014, and the Eighth, Ninth and Tenth Defendants were joined in the proceedings by the Plaintiffs' Amended Statement of Claim filed over two years ago, in May 2015. Now, several years after the relevant events and three years after the commencement of the proceedings, at a time that evidence is well advanced and the Plaintiffs have served their evidence in chief, including lay evidence and expert evidence, and the Eighth and Tenth Defendants would have filed their affidavit evidence, but for this application which required the order for them to do so to be vacated, the Plaintiffs seek to amend their case against the Eighth, Ninth and Tenth Defendants to a significant extent.
The Ninth Defendant has not appeared in the proceedings for some time, did not appear in this application and, so far as the evidence goes, does not seem to have been served with the application although it plainly affects his interests and although the need for such service was drawn to the Plaintiffs'…

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: [2017] NSWSC 1147
Decision Date: 19 July 2017

CaseChat Overview and Summary

The case of X P Hua v M S Tuckerman involved a dispute between the plaintiff, X P Hua, and two defendants, M S Tuckerman and another party. The plaintiff sought amendments to the pleadings to include additional defendants and new causes of action. The case was heard in the Federal Court of Australia. The central issue before the court was whether the plaintiff could amend the pleadings without serving the amendment application on one of the defendants, M S Tuckerman, and whether such amendments would be appropriate given the significant passage of time since the events in question.

The court examined the procedural rules governing amendments to pleadings and considered the principle of fair and just resolution of disputes. It noted that amendments to pleadings should generally be allowed if they do not cause substantial injustice to the opposing party. However, the court also highlighted that amendments that would require parties to address events that occurred many years ago and that would prolong the proceedings unduly could be problematic. The court found that serving the amendment application on all defendants was a fundamental procedural requirement and that the proposed amendments would necessitate the defendants to address events from a considerable time in the past, which could lead to undue delay and prejudice.

Given these considerations, the court ruled that the plaintiff could not amend the pleadings without first serving the amendment application on M S Tuckerman. The court also determined that the proposed amendments, which would require the defendants to address events from many years prior, were inappropriate and would unduly prolong the proceedings. Consequently, the plaintiff's application for amendment was dismissed.

Orders