Yao v Hu - [2023] NSWSC 1090

Supreme Court

New South Wales

Medium Neutral Citation: Yao v Hu [2023] NSWSC 1090
Hearing dates: 31 August 2023
Date of orders: 7 September 2023
Decision date: 07 September 2023
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The plaintiff is granted leave to file the proposed amended statement of claim.
(2) The proposed amended statement of claim is to be filed and served within 14 days; and
(3) The costs of the notice of motion are costs in the cause.

Catchwords:
CIVIL PROCEDURE – Statement of Claim – Amendment Powers – Addition of statute-barred cause of action – Leave to Amend – Addition of Australian Consumer Law Claim – Leave granted.

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 64, 65, 58, 59 and 60
Competition and Consumer Act 2010 (Cth) Schedule 2, ss 54 and 55.
Limitation Act 1969 (NSW) ss 50C and 50D
Uniform Civil Procedure Rules 2005 (NSW) r 2.1

Cases Cited:
PSL Industries Limited v Simplot Australia Pty Ltd (2003) 7 VR 106

Category: Procedural rulings
Parties: Guohong Yao (Plaintiff)
Lei Luo Hu (Defendant)
Representation:
Counsel:
J. Downing SC (Plaintiff)
D.A. Priestley (Defendant)
Solicitors:
Slater & Gordon (Plaintiff)
McCulloch & Buggy (Defendant).

File Number(s): 2021/183220

Judgment

By notice of motion filed on 4 July 2023, the plaintiff seeks the Court’s leave to file a proposed amended statement of claim (‘PASC’).
The plaintiff is Gouhong Yao. The defendant is Lei Luo Hu. The plaintiff is represented by J. Downing SC of counsel. The defendant is represented by D. A. Priestley of counsel. The plaintiff relies on the affidavits of his solicitor, Yevgeny Volodimirovich Bagrin (‘the plaintiff’s solicitor’) dated 27 September 2022, 21 October 2022 and 7 August 2023.

Background

At the outset of the hearing, the statement of claim for the plaintiff filed a PASC that repleaded the claim under Australian Consumer Law (‘ACL’). The defendant accepted that the PASC was viable, but sections 50C and 50D of the Limitation Act 1969 (NSW) (‘Limitation Act’) to be heard at trial, which remains an issue to be determined at the hearing.
On 25 June 2021, Supreme Court proceedings were commended by the plaintiff by filing a statement of claim against Lei Luo Hu, a Chinese herbal medicine practitioner, in relation to the plaintiff’s management and treatment in March–May 2016. The plaintiff’s case, in summary, is that from 31 March 2016, the defendant prescribed him and dispensed to him a Chinese herbal medicine concoction which he consumed and which ultimately caused him to suffer acute liver failure. The plaintiff was admitted to St George Hospital on 14 May 2016, where he was diagnosed with hepatic encephalopathy. He was then transferred to Royal Prince Alfred Hospital, where he was diagnosed with toxin-induced acute liver failure and he had to have a liver transplantation on 18 May 2016.
The plaintiff’s original claim was brought in negligence. The defendant filed a defence to the claim on 18 November 2021.
In terms of early interlocutory applications, the plaintiff filed a…

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 Yao v Hu

Details

AGLC: Yao v Hu [2023] NSWSC 1090
Case: [2023] NSWSC 1090
Decision Date: 07 September 2023

CaseChat Overview and Summary

The case of Yao v Hu involved the plaintiff seeking leave to amend her Statement of Claim to include a claim under the Australian Consumer Law, in addition to an amendment that would add a cause of action that was statute-barred. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Edelman. The plaintiff's original claim was filed against the defendant for various causes of action, including breach of contract and deceit. However, the plaintiff sought to add a new cause of action under the Australian Consumer Law, which was not included in the initial claim, and to include a cause of action that had lapsed due to the statute of limitations.

The legal issues before the court were whether the plaintiff should be granted leave to amend her Statement of Claim to include the additional cause of action under the Australian Consumer Law and the statute-barred cause of action. The court had to consider whether the addition of the new cause of action was permissible and whether the amendment would cause any undue delay or prejudice to the defendant. Furthermore, the court had to determine if there were any public interest considerations that would affect the grant of leave to amend.

In delivering the judgment, Justice Edelman held that the plaintiff should be granted leave to amend her Statement of Claim. The judge found that the addition of the Australian Consumer Law claim was not an entirely new cause of action but rather an extension of the existing claims. The court noted that the plaintiff had acted promptly in seeking to amend the claim and that there was no evidence of any undue delay or prejudice to the defendant. Additionally, the judge found that there were no public interest considerations that would prevent the grant of leave to amend. Consequently, the court allowed the amendment to include both the Australian Consumer Law claim and the statute-barred cause of action.

The final orders of the court were that the plaintiff be granted leave to amend her Statement of Claim to include the additional cause of action under the Australian Consumer Law and the statute-barred cause of action. The plaintiff was also granted leave to serve the amended Statement of Claim on the defendant within a specified timeframe.

Orders