Bank Commerciale SA v Akhil Holdings Ltd

1. The application is otherwise dismissed.
2. The applicant pay the respondents' costs of the application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered ex tempore, revised from the transcript)

1. The trial in this proceeding commenced on 5 May 2025 when it was set down for 10 days. The trial was not completed, and it resumed from 29 July 2025 to 31 July 2025. On 29 to 31 July 2025, the first respondent, Mr Qi, was cross-examined. Calls for documents were made. The documents were not produced at the time. The applicant reserved the right to recall Mr Qi, subject to the calls being answered. As it transpired, the calls were not answered. Closing submissions are scheduled for 1 to 2 September 2025.
2. On 12 August 2025, the applicant indicated that it sought leave to re-open its case for the limited purpose of tendering the following documents into evidence:

(a) a letter from the respondent's solicitors to Fine China's solicitors dated 7 August 2025 and a related email of the applicant's solicitor sent on 11 August 2025; and

(b) a further expert report of Mr John Ganas, Forensic Document Examiner, dated 13 August 2025.

1. Given the closing submissions are scheduled for 1 September 2025, the matter was listed for hearing on 15 August 2025.
2. I dealt with the application as an oral application under Rule 17.01(3) of the Federal Court Rules 2011 (Cth).
3. The applicant relied on an affidavit of Ms Yvonne Hsu, affirmed on 13 August 2025.
4. The parties agreed to the tender of the letter dated 7 August and the email sent on 11 August 2025, which concerned the failure to answer certain calls for documents. The letter and email will be tendered in evidence as exhibits A14 and A15 respectively.
5. Mr Ganas' further expert report concerns his opinion in relation to "Disputed Markings" (that is, signatures or names) on a number of documents that were put to Mr Qi in cross-examination, "wet ink" signatures on meeting minutes and the similarity of a name and signature of Mr Qi which he made in the course of his cross-examination.
6. As to the "Disputed Markings" on certain documents, the applicant said that the documents in question were tendered absolutely and it was not until Mr Qi's cross-examination that they learned for the first time that the authenticity of the documents was disputed. The applicant says that this, which they could not have known until then, prompted them to seek a further report of Mr Ganas, which is "fresh evidence" that was not available to the applicant at the time of the hearing.
7. For the reasons that follow, the application to re-open to adduce the further expert report of Mr Ganas is not in the interests of justice and will be dismissed.

1. The legal principles were not in dispute.
2. In the seminal case of Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 478D, Clarke JA said:

The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not [sic: to] call the witness in the party's case was a deliberate one. ... Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.

1. As noted by Ward J (as her Honour then was) in McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 89 at 46, this guiding principle has been followed in various decisions of this and other courts, and is well-established. A distinction is, however, drawn between the situation where an application to reopen is made after the delivery of judgment (which is not the case here) and one where there was an application made to reopen before the hearing is concluded (as is the case here), and between the considerations which may bear on a decision to reopen, and the processes involved in reconsideration once the case has been reopened.
2. In Frigger v Trenfield (No. 7) [2020] FCA 1740, at [22]-[24], Jackson J conveniently summarised the principles, which I gratefully adopt, as follows:

... The power is discretionary: Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 474; Commonwealth of Australia v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; (2013) 282 FLR 1 at [1578]. The ultimate question is where the interests of justice lie: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] (Kenny J); Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436; (2008) 171 FCR 174 at [208] (Lindgren J); Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232; (2012) 46 VR 1 at [26].

Broadly speaking, there are four recognised classes of cases where leave to reopen may be given, although the classes are not closed: (1) fresh evidence; (2) inadvertent error; (3) mistaken apprehension of the facts; and (4) mistaken apprehension of the law: Bradshaw at [24] (Kenny J); Spotlight at [25]-[26].

Likely prejudice to the party resisting the application will be relevant: Nweiser at 478. So will the public interest in the timely conclusion of litigation: A_ustralian Securities and Investments Commission v Rich_ [2006] NSWSC 826; (2006) 235 ALR 587 at [18]. The probability that the additional evidence will affect the result is also relevant: Telstra at [209]. If success in reopening is not likely to make any difference to the outcome of the trial, that would weigh against putting the parties and the court to the delay, trouble and expenditure of resources involved in reopening.

1. In Telstra Corporation Limited v Australian Competition and Consumer Commission (2008) 171 FCR 174; [2008] FCA 1436, Lindgren J said, at [209]:

The particular criterion relevant to the present circumstances, is whether it is probable to the required degree that the additional evidence will affect the result. There is not a single formulation in the cases as to the degree of probability required.

1. The central issue for determination in this proceeding concerns the execution of three trust deeds relating to the shares of CSJH, Sun Asia and Sunshine Scenery.
2. The applicant rightly concedes that Mr Ganas' further report is not directly probative of that issue.
3. The applicant submits, however, that Mr Ganas' further report is probative of whether Mr Qi signed the trust deeds, because it is evidence that would undermine Mr Qi's credibility. That is, the applicant submits, Mr Qi denies signing the trust deeds, and he denies the "Disputed Markings" were his. Mr Ganas' report contradicts Mr Qi's denial of authorship of the Disputed Markings and, it was submitted, would allow the Court to reject Mr Qi's denial of authorship of the Disputed Markings. Thus, Mr Ganas' report would undermine Mr Qi's credibility, and his denial of having executed the three trust deeds, thereby supporting a finding for which Fine China contends that Mr Qi did not sign the trust deeds.
4. The applicant further contends that the authorship of the Disputed Markings is probative of another matter in issue, being the question of control of Sun Asia. The applicant relies on Bank Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11, where Dawson J said, at 296-297 [emphasis added]:

It is, of course, the purpose of pleadings to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance. But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings: Dare v. Pulham (1982) 148 CLR 658, at p 664; Water Board v. Moustakas (1988) 62 ALJR 209, at p 211; 77 ALR 193, at p 197; Leotta v. Public Transport Commission (N.S.W.) (1976) 50 ALJR 666, at p 668; 9 ALR 437, at p 446; Maloney v. Commissioner for Railways (N.S.W.) (1978) 52 ALJR 292, at p 294; 18 ALR 147, at p 151. Whether leave to amend the pleadings ought to be given in the course of a trial, without notice to a party who does not appear at the trial, can only be determined in each instance having regard to any possible prejudice to that party: see I_n re Robinson's Settlement; Gant v. Hobbs, per Buckley L.J._ at p 728. In determining whether there is any prejudice, it will, of course, be borne in mind that a party who fails to appear has voluntarily relinquished the right to be heard in relation to those steps which form the ordinary incidents of a trial.

1. The applicant also relies on Stefanovski v Digital Central Australia (Assets) Pty Ltd (2018) 368 ALR 607; [2018] FCAFC 31 at [63]-[64] (McKerracher, Derrington and Robertson JJ), where the Full Court said:

It is a fundamental characteristic of the adversarial system that trials are conducted on the basis of the issues the parties agitate in the pleadings and, as a general rule, relief is confined to that claimed or available on those pleadings (see Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (2008) 73 NSWLR 653, [424]-[428]). Ordinarily, an applicant is only entitled to obtain judgment on the case advanced before the Court. That is an emanation of the underlying principles of natural justice accorded to all litigants before the Courts. As was said by the majority of the High Court in Water Board v Moustakas (1988) 180 CLR 491, "a trial is not at large but is of the issues joined by the parties".

It can be readily acknowledged that where, in the course of a trial, the parties abandon the confines of the pleaded case and litigate other issues, they cannot be heard later to complain that orders are made which have no foundation in the pleading so long as they are within the bounds of the litigated dispute (Gould & Birbeck & Bacon v The Mount Oxide Mines Ltd (in Liq) [1916] HCA 81; (1916) 22 CLR 490; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279)

1. However, this is not a case where the parties abandoned or departed from the pleadings. The respondents have repeatedly said they are here to answer the pleaded case. The parties agreed a list of issues for the conduct of the trial which is directed to the pleaded issues. It is true that the issue of ownership of Sun Asia is raised by the evidence, and the respondent opened that evidence, however, the authorities referred to do not suggest that of itself is sufficient to determine the way a matter has been litigated. The cited passage in Banque Commerciale, for example, highlights the need for an amendment to pleadings to reflect the evidence where proceedings have been conducted on a basis other than the issues agitated in pleadings.
2. In my assessment, Mr Ganas' further report is not probative of a matter in issue. It is evidence that goes to Mr Qi's credit and undermines his evidence regarding ownership of Sun Asia. As the applicant concedes in oral submissions, if Mr Ganas' further report is not allowed, it will be open to the applicant to make submissions in any event that the Court should reject Mr Qi's evidence that the disputed markings are not his. Insofar as Mr Ganas' further report is relevant to Mr Qi's credit, there are numerous other matters that the applicant can rely upon in regard to Mr Qi's credit, which was clearly in issue.
3. The question for resolution in the present application is whether it is in the interests of justice to allow Fine China to re-open its case to rely upon Mr Ganas' further report. I am not satisfied that it is in the interests of justice to do so for the following reasons. Firstly, as set out above, the report is not directly probative of a matter in issue, it goes to credit only and the applicant is in a position to make submissions on issues of credit in any event. Secondly, in consideration of the prejudice to the respondents and the public interest in the conclusion of the litigation.
4. As to the prejudice of the respondents from the lateness of Mr Ganas' further report, the respondent relied on an affidavit that Mr John Richards affirmed on 14 August 2025. It is sufficient to note that the respondent's expert, Ms Holt, is unavailable to respond to Mr Ganas' report until late September 2025. If the application were granted, the closing submissions scheduled for early September would need to be adjourned. Having regard to Ms Holt's availability, the trial could not resume until mid to late October. While this is not significant in the scheme of things, the litigation has been on foot for some time. The proceeding has already occupied a significant amount of court time, and the finality of the litigation will be delayed by the tender of Mr Ganas' further report.
5. For those reasons, the application to re-open to for the purpose of tendering Mr Ganas' further report should be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin.