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Chan v Choi [2026] NSWSC 1002 | Case summary | Zoe

NSWNSWSC

Chan v Choi

[2026] NSWSC 1002

Supreme Court of NSW|2026-08-24|Before: Harrison AJ

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-08-24

Before

Harrison AJ

Catchwords

PLEADINGS – amendment of pleadings – application by defendants for costs thrown away or occasioned by reason of the amendment – application for forthwith costs order – no reason to depart from usual rule that costs of interlocutory hearing be payable at the conclusion of the proceedings

Source

Original judgment source is linked above.

Catchwords

PLEADINGS – amendment of pleadings – application by defendants for costs thrown away or occasioned by reason of the amendment – application for forthwith costs order – no reason to depart from usual rule that costs of interlocutory hearing be payable at the conclusion of the proceedings

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Chan v Choi [2026] NSWSC 1002

Hearing dates: 17 August 2026

Date of orders: 24 August 2026

Decision date: 24 August 2026

Jurisdiction: Equity

Before: Harrison AJ

Decision: (1) Grant leave to the plaintiffs to file and serve an amended statement of claim in the form of the document marked “A” annexed to the affidavit of Raymond Lee affirmed on 14 August 2026.
(2) Order the plaintiffs to pay the defendant’s costs thrown away or occasioned by reason of the amendment.
(3) Order the plaintiffs to pay the defendant’s costs of the application to amend.

Catchwords: PLEADINGS – amendment of pleadings – application by defendants for costs thrown away or occasioned by reason of the amendment – application for forthwith costs order – no reason to depart from usual rule that costs of interlocutory hearing be payable at the conclusion of the proceedings

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 42.7(2)

Cases Cited: Wang v Cai (No 2) [2021] NSWSC 1268

Category: Procedural rulings

Parties: Lung Wa Chan (First Plaintiff)
Ching Man Ma (Second Plaintiff)
Stephanie Ka Yi Choi (Defendant)

Representation: Counsel:
J Clifton (Plaintiffs)
A Gruzman (Defendant)
Solicitors:
Raymond Lee & Co (Plaintiffs)
Marano Family Lawyers (Defendant)

HIS HONOUR: By their notice of motion filed on 14 August 2026, the plaintiffs seek leave to file an amended statement of claim. Despite some initial back and forth between the parties with respect to the plaintiffs’ proposal, no issue remains for me to consider apart from the question of costs. The plaintiffs have uncontroversially conceded that they will have to pay the defendant’s costs thrown away or occasioned by reason of the amendment. The only issue is whether those costs should be made payable forthwith or alternatively be payable only after the proceedings have been finally decided.
The amended statement of claim is an imposing document consisting of 144 paragraphs of almost completely new material. It is neither possible nor necessary to summarise it here. It is sufficient to note that there is a contest about whether the new pleading entirely recasts the plaintiffs’ case or amounts to no more than a more detailed exposition of the same facts upon which the plaintiffs originally relied. As far as I am able to determine, the real answer lies somewhere between those two extremes.
I do not have before me evidence about the quantum of the costs said by the defendant to have been wasted. That is unsurprising. Identification and itemisation of such costs would itself be a time consuming and potentially costly exercise at this stage of the proceedings when the parties’ energies are likely to be more productively directed to the real issues in dispute. For my part I consider that the precise identification of work performed by the defendant in response to the original statement of claim would be very difficult. That is so for the reason that the progress of the proceedings towards a final hearing and the determination of all issues at that hearing are both highly likely to inform or highlight the extent to which, if at all, the defendant’s response to the current pleading has been for nought.
The proposition that the defendant’s costs to date are significant or that her limited resources have been substantially diverted remains to be seen: see Wang v Cai (No 2) [2021] NSWSC 1268 at [23]-[24]. The usual position is that the costs of interlocutory applications are not payable until the end of the proceedings: UCPR 42.7(2). I see no reason in this case to depart from the usual position.
Accordingly, I will make the following orders:
Grant leave to the plaintiffs to file and serve an amended statement of claim in the form of the document marked “A” annexed to the affidavit of Raymond Lee affirmed on 14 August 2026.
Order the plaintiffs to pay the defendant’s costs thrown away or occasioned by reason of the amendment.
Order the plaintiffs to pay the defendant’s costs of the application to amend.