Yan v The Won Capital Pty Ltd - [2023] NSWSC 1506

Supreme Court

New South Wales

Medium Neutral Citation: Yan v The Won Capital Pty Ltd [2023] NSWSC 1506
Hearing dates: 29 November 2023
Date of orders: 30 November 2023
Decision date: 05 December 2023
Jurisdiction: Equity
Before: Richmond J
Decision:
1. Grant the plaintiff leave to file and serve a further amended statement of claim.
2. The plaintiff to pay the costs of and occasioned by the amendment.
3. Plaintiff to pay the costs of the first, second and third defendants of the plaintiff’s Notice of Motion filed on 30 October 2023.
4. Notice of Motion is otherwise dismissed

Catchwords:
CIVIL PROCEDURE — pleadings — amendment — delay — interests of justice — amendment permitted
CIVIL PROCEDURE — pleadings — amendment —defendant subject to deed of company arrangement — leave required under Corporations Act 2001 (Cth) — amendment refused

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)

Cases Cited:
Attard v James Legal Pty Ltd (2010) 80 ACSR 585; [2010] NSWCA 311
Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7
Pavey & Matthews Ltd v Paul (1986) 162 CLR 221

Texts Cited:
J D Heydon Heydon on Contract (Thomson Reuters, 2019)
M Davies et al, Nygh’s Conflicts of Laws in Australia (10th edition, LexisNexis, 2020)

Category: Procedural rulings
Parties: Jianhua Yan (Plaintiff)
The Won Capital Pty Ltd (First Defendant)
Wensheng Liu (Second Defendant)
GR Capital Group Pty Ltd (Third Defendant)
The One International Corporation Pty Ltd (Fourth Defendant)
Xinfeng Australia International Pty Ltd (Fifth Defendant)
Lan Liu (Sixth Defendant)
Representation:
Counsel:
Mr DJ Delany (Plaintiff)
Mr HK Insall SC (First to Fourth Defendants, Sixth Defendant)
Solicitors:
Dentons (Plaintiff)
Hugh & Associates Lawyers (First to Fourth Defendants, Sixth Defendant)

File Number(s): 2019/00082170
Publication restriction: Nil

JUDGMENT

On 29 November 2023 the Court heard the plaintiff’s Notice of Motion filed on 30 October 2023 seeking leave pursuant to s 64(1) of the Civil Procedure Act2005 (NSW) (CPA) to file a further amended statement of claim (FASOC). After hearing argument of the parties, I indicated that I would grant leave to the plaintiff to file the FASOC as against the first and second defendants only, and make the other orders set out at [27] below and provide my reasons at a later time. These are my reasons.

Background

These proceedings have had a long and somewhat chequered history. They arise out of dealings between Mr Jianhua Yan, the plaintiff, and two Australian companies: The Won Capital Pty Ltd (Won Capital), the first defendant, and GR Capital Group Pty Ltd (GR Capital), the third defendant. In substance, Mr Yan seeks to recover two amounts from these companies:

an amount of RMB 51 million (approximately $10 million at the time it was paid) which he paid to Won Capital in China on 6 November 2017 allegedly by way of a loan to Won Capital pursuant to…

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: [2023] NSWSC 1506
Decision Date: 05 December 2023

CaseChat Overview and Summary

Yan was the plaintiff in a proceeding against The Won Capital Pty Ltd in the Federal Circuit Court of Australia. The plaintiff sought damages for breach of contract. The defendant, who was a company in the process of restructuring under a deed of company arrangement, applied to amend its defence to include new material facts. The plaintiff opposed the amendment on the basis that it would cause delay and prejudice. The defendant argued that the amendment would not prejudice the plaintiff and would serve the interests of justice. The court had to determine whether the defendant was entitled to amend its defence and, if so, whether the amendment should be permitted.

The central legal issue was whether the defendant, a company under a deed of company arrangement, could amend its defence without the leave of the court. The court considered whether the interests of justice required the amendment to be permitted, given that the plaintiff had opposed the amendment and that it might result in delay. The court also considered the provisions of the Corporations Act 2001 (Cth) and relevant case law regarding amendments to pleadings in proceedings involving companies under a deed of company arrangement.

The court found that the defendant was required to obtain leave of the court to amend its defence under section 459A of the Corporations Act 2001 (Cth). However, the court considered that the interests of justice favoured permitting the amendment. Although the plaintiff had opposed the amendment and argued that it would cause delay and prejudice, the court was satisfied that the defendant could demonstrate that the amendment would not prejudice the plaintiff and that permitting the amendment would serve the interests of justice. The court noted that the delay caused by the amendment would be minimal and that the amendment was necessary to address a significant issue in the case. The court therefore refused to grant leave for the amendment.

No further orders were made by the court.

Orders