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[2025] NSWCA 202
procedural. The notice of motion filed 26 August 2025 was dismissed, subject to a 14-day extension of the stay made on 21 August 2025 to provide the applicants an opportunity to seek review. The applicants...
The applicants wanted the money held in an account to remain there while they pursued a proposed appeal. Their argument relied substantially on allegations that Mr Jiang had misled them, but those allegations had already been struck out and the applicants had not appealed that decision. Adamson JA concluded that evidence about those allegations could not have been considered at the trial because it was outside the live pleadings. The applicants also did not prove that Mr Jiang would be unable to repay the money if they later succeeded. The motion was dismissed, although the stay was continued for 14 days to allow the applicants to consider seeking review.
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2,390 words · generated 06/10/2026
Han v Jiang [2025] NSWCA 202 is a procedural ruling by Adamson JA of the NSW Court of Appeal. It concerns whether funds held in an interest-bearing account should remain there while the applicants pursued a proposed appeal, and, centrally, whether their proposed appeal raised serious issues about the earlier refusal to set aside a judgment given after they left the substantive hearing.
2 cited instruments linked from this judgment.
The underlying dispute arose from a 2016 agreement between Kairan Han, Fortune New City (Yarraville) Development Pty Ltd, and Zhao Jiang concerning the acquisition and development of land at Yarraville. Mr Jiang sued in 2021 to recover a debt under that agreement. The applicants initially defended the claim and brought a cross-claim alleging, among other things, that they entered the agreement in reliance on Mr Jiang's misleading or deceptive conduct concerning the development's profitability ([4], [6]).
The pleadings changed before trial. After the applicants failed to provide ordered security for costs and did not serve evidence supporting their allegations, the primary judge dismissed their cross-claim and struck out paragraphs 22–40 of their amended defence on 12 May 2025 ([10]–[11]). Those paragraphs corresponded with their misleading or deceptive conduct case. The applicants filed a notice of intention to appeal but did not file a notice of appeal. The notice lapsed in August 2025 ([12]).
On 30 June 2025, the applicants sought an adjournment and reinstatement of the struck-out pleading material. The primary judge dismissed those applications. Their counsel's retainer was limited to those applications, and counsel was excused after they were refused. The applicants and their other representatives then left; the substantive hearing proceeded without evidence or submissions on their behalf ([14]–[16]). Judgment was entered for Mr Jiang for $7,367,846.60, including pre-judgment interest of $2,010,549.60 ([17]).
The applicants later applied under UCPR r 36.16(2)(b) to set aside the judgment because it had been given in their absence. They relied on an affidavit sworn by Mr Han in April 2025, containing evidence directed to the misleading or deceptive conduct allegations ([20]–[21]). The primary judge refused that application on 21 August 2025. Her Honour found, among other things, that the applicants had had a fair opportunity to present their case, had not adequately explained their failure to remain at the hearing, and had not shown an arguable case that could change the result on construction of the 2016 agreement ([23]).
The applicants then sought leave to appeal and an extension of the stay on payment of the funds to Mr Jiang. Adamson JA dismissed the motion, but extended the stay for 14 days so the applicants could consider seeking review of that dismissal ([1]–[2], [44]–[46]).
The governing stay principles were not disputed. Adamson JA quoted Kalifair, which describes the requirements as serious issues for determination and a real risk of prejudice or damage that a successful appeal would not redress. If those conditions are met, the Court considers the balance of convenience ([30]). The judgment does not treat a stay as automatic merely because an appeal is proposed.
The key obstacle was the state of the pleadings. The Court observed that, at the substantive hearing, the only pleaded issue was whether the 2016 agreement required the applicants to pay the amount claimed ([37]). The misleading or deceptive conduct allegations had been struck out. The applicants had not appealed the orders striking them out, and their attempt to reinstate them had been refused ([38]).
That history mattered to both the stay application and the earlier absence argument. Under UCPR r 36.16(2)(b), the Court treated the relevant question as whether the applicants' presence at the hearing could have made a difference ([38]). It concluded that evidence about misleading or deceptive conduct would not have done so. Had the applicants stayed, and sought to adduce such evidence, the primary judge would have been obliged to reject it as irrelevant because the allegations were outside the extant pleadings ([39]). The Court regarded it as fanciful, in the circumstances, to suggest that Mr Jiang would have acquiesced in the case being conducted outside the pleadings ([39]).
The Court also rejected the submission that the interests of justice required consideration of the excluded allegations despite the pleading history. Adamson JA stated that the interests of justice do not allow a party to rely on evidence outside an extant pleading, particularly where the relevant paragraphs have been struck out, that order was not appealed, and an attempt to restore them had failed. The procedural context forms part of justice in this setting ([40]). The applicants therefore had not established serious issues for determination or a reasonably based allegation of injustice ([41]).
The asserted risk that Mr Jiang could not repay the funds was also not made out. The applicants relied on evidence concerning companies associated with Mr Jiang, some of which had entered external administration or been wound up, as well as evidence about litigation ([33]–[34]). But their evidence did not address his personal financial position. Adamson JA held that no inference of inability to repay arose merely because Mr Jiang had not given evidence of his own means ([35], [42]).
Finally, the Court accepted that continuation of the stay would prejudice Mr Jiang. The evidence indicated that, because Mr Han was in China, recovery of money beyond the amount in the joint account was unlikely. The account's interest was already materially less than the applicants' accruing post-judgment interest liability; further delay would increase that difference ([43]). With no established serious appeal issue or repayment risk, the motion was dismissed. The 14-day extension was a limited procedural allowance, made because the applicants wanted time to consider seeking review and the respondent did not oppose that short period ([44]).
The judgment does not purport to change the legal test for a stay pending appeal. It applies principles described as undisputed, referring to Alexander v Cambridge Credit Corporation Ltd and quoting Kalifair ([30]). On the reasoning in Kalifair set out in the judgment, an applicant must establish serious issues and a real risk of prejudice or damage not remedied by success on appeal, after which the balance of convenience is considered.
The decision's practical contribution is its application of the absence rule in UCPR r 36.16(2)(b) to a case where the absent party wanted to rely on evidence addressing claims that were no longer pleaded. The Court's reasoning connects the counterfactual question, what might have happened if the party had attended, to the issues legally available for determination at the hearing. Presence could not make a difference by enabling evidence that the judge was required to reject as irrelevant ([38]–[39]).
The judgment also makes clear that an appeal intention is not the same as an appeal. The applicants had filed a notice of intention to appeal the striking-out orders, but did not prosecute an appeal, and the notice lapsed under UCPR r 51.9 ([12]). When the stay motion was heard, the struck-out allegations were not part of the operative pleadings. The decision therefore illustrates the importance of procedural status when the court assesses what issues remain available, rather than treating earlier pleaded allegations as if they remained live.
The judgment expressly notes a qualification: the applicability of r 36.16(2)(b) was common ground, but was “not free from doubt”. Adamson JA referred to Allchin v Hunter Water Corporation (No 3), which discussed r 29.7 and referred to r 36.16 as part of the context ([24]). The Court did not determine that question. The decision should therefore be read as applying the provision on the basis accepted by the parties, not as resolving the broader question of its scope.
At [37], Adamson JA said that “the only issue on the pleadings was whether the construction of the 2016 agreement obliged the applicants to pay Mr Jiang the sum claimed.” In plain English, by the time of trial the dispute the judge could decide had narrowed to the contractual debt. The former misleading or deceptive conduct case was not among the live issues.
At [38], the Court said that r 36.16(2)(b) is concerned with whether a party's “presence at the hearing could have made a difference.” This frames the absence application as a practical counterfactual. It is not enough to establish that a party was absent; the relevant question is whether attending could have affected the result, assessed against the case the court was entitled to hear.
At [39], the Court explained that the trial judge “would have been obliged to reject” evidence of misleading or deceptive conduct because it fell outside the extant pleadings. In plain English, the applicants could not use their absence to revive claims that had already been removed from the case. Their affidavit evidence did not become relevant simply because they later relied on it when seeking to set aside the judgment.
At [40], Adamson JA stated: “Justice in this context includes the procedural context.” This means that the fairness inquiry did not occur in isolation from earlier procedural orders. The striking out of the allegations, the absence of an appeal against that order, and the refusal to restore them all formed part of the setting in which the interests of justice were assessed.
At [42], the Court said that the applicants' evidence did not address Mr Jiang's personal financial position and that no inference could be drawn from his failure to give evidence about it. The point is evidentiary: information about companies associated with a person does not, without more in the record, establish that the person himself cannot repay money.
At [43], Adamson JA accepted that delay prejudiced Mr Jiang because interest in the account was less than the applicants' post-judgment interest liability and the disparity would grow. The ruling therefore considered prejudice on both sides, not just the applicants' asserted concern about recovery.
The most directly relevant pattern is an application to set aside a judgment because a party was absent, where the absent party says that it would have presented evidence about a claim or defence no longer contained in the operative pleadings. Han v Jiang indicates that the court will ask whether the evidence could lawfully have been considered at the hearing. If the evidence is outside the extant pleadings and would have been rejected as irrelevant, the party's attendance may not have changed the result for the purposes of the absence argument ([38]–[40]).
The procedural history is significant. Here, the allegations had been struck out, the order was not appealed, and a later attempt to reinstate the allegations was refused ([11]–[15], [38]). The Court's reasoning is tied to that combination. It does not decide what the result would be where an appeal against the striking-out order remains active, where leave to amend has been granted, or where the opposing party has agreed to litigate an unpleaded issue. The judgment instead describes acquiescence in this case as fanciful ([39]).
The decision also applies to stay applications where the applicant says money paid out will be irrecoverable if an appeal succeeds. The case illustrates the need for evidence supporting the claimed risk. Evidence about associated corporate entities and proceedings was not enough here, because the applicants did not put evidence before the Court about Mr Jiang's personal financial position ([33]–[35], [42]). The decision does not establish that evidence of corporate insolvency can never be relevant; its conclusion is specific to the evidence and inference advanced in this motion.
The judgment was delivered on 2 September 2025. The provided judgment text contains no later judicial decisions applying, distinguishing, or otherwise treating Han v Jiang. It is therefore not possible, on the sources supplied, to describe subsequent treatment.
Within Han v Jiang, the Court discusses earlier authorities and prior decisions in the same litigation. Kalifair is quoted for the stay principles, and Alexander is cited as an authority for the principles accepted by the parties ([30]). Allchin is referred to in connection with the acknowledged uncertainty about r 36.16(2)(b) ([24]). Dare v Pulham and Banque Commerciale are cited when the Court puts aside the possibility that Mr Jiang would have permitted the applicants to run a case outside the pleadings ([39]). Those citations show the sources used in this judgment, not how later courts have treated Han v Jiang.
The NSW Supreme Court decisions in Jiang v Han (No 2), (No 3), (No 4), and (No 5) form part of the procedural history, including the security orders, striking out, refusal to adjourn or reinstate the pleadings, and refusal to set aside judgment ([10]–[23]). They are not later treatment of the Court of Appeal's ruling.
The first expressly open question is whether UCPR r 36.16(2)(b) applied in the circumstances. The parties proceeded on the basis that it did, but Adamson JA observed that the issue was not free from doubt and referred to Allchin ([24]). Han v Jiang did not resolve that question.
The judgment also does not determine how the analysis would differ if the absent party had an appeal on foot against the order that removed the relevant allegations, or if the pleadings had been amended before the hearing. Its reasoning rests on the fact that the allegations had been struck out, the striking-out order had not been challenged on appeal, and the attempt to reinstate the allegations was refused ([38]–[40]).
Nor does the judgment set a general threshold for the kind or amount of financial evidence needed to demonstrate a real risk that a successful appeal would be practically ineffective. It holds that the evidence in this case was insufficient because it did not address Mr Jiang's personal financial position, and that no adverse inference followed from his not giving evidence ([42]). The precise evidentiary requirements in other circumstances remain outside the decision.
Finally, the judgment's 14-day extension was made to provide an opportunity to consider seeking review, with no opposition to that short extension ([44]). It does not decide the merits of any later review or appeal, or the ultimate entitlement to the funds beyond the orders made in this motion.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Han v Jiang [2025] NSWCA 202
Hearing dates: 1 September 2025
Date of orders: 1 September 2025
Decision date: 02 September 2025
Before: Adamson JA
Decision: (1) Subject to order 2, dismiss the applicants’ notice of motion filed 26 August 2025.
(2) Extend order 4, made by Schmidt AJ on 21 August 2025, for a period of 14 days with the intention of providing the applicants the opportunity to seek review of the dismissal of the notice of motion.
(3) The applicants to pay the respondent’s costs of the notice of motion.
Catchwords: CIVIL PROCEDURE — application for extension of stay to prevent monies paid into court being paid to successful party in satisfaction of judgment debt — where unsuccessful parties absent themselves from substantive hearing — where application made to set aside judgment on the basis of absence of unsuccessful parties — where unsuccessful parties seek to rely on evidence which is irrelevant because it is outside extant pleadings — motion dismissed — Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.9, 51.12, 51.44
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Jiang v Han (No 2) [2025] NSWSC 48
Jiang v Han (No 3) [2025] NSWSC 452
Jiang v Han (No 4) [2025] NSWSC 695
Jiang v Han (No 5) [2025] NSWSC 948
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Category: Procedural rulings
Parties: Kairan Han (First Applicant)
Fortune New City (Yarraville) Development Pty Ltd (Second Applicant)
Zhao Qing Jiang (Respondent)
Representation: Counsel:
D Moujalli / G Antipas (Applicants)
N J Kidd SC (Respondent)
Solicitors:
Hiways Lawyers (Applicants)
Sunfield Chambers Solicitors & Associates (Respondent)
File Number(s): 2025/327473
[This headnote is not to be read as part of the judgment]
The applicants, Kairan Han, a Chinese national, and Fortune New City (Yarraville) Development Pty Ltd, entered into a joint venture agreement in 2016 (the 2016 agreement) with Zhao Jiang, the respondent, to acquire and develop land in Yarraville, Victoria. Mr Jiang successfully sued the applicants for a debt under the agreement and obtained judgment in his favour. Schmidt AJ (the primary judge) ordered that monies which had been paid into Court and subsequently transferred to a joint account (in lieu of a freezing order which had been made when the proceedings were commenced) be paid out to Mr Jiang but stayed the order until 5pm on 1 September 2025. The applicants sought an extension of the stay pending determination of their application for leave to appeal against the judgment.
The applicants initially defended the claim in the Supreme Court by alleging, in their defence and cross-claim, that Mr Jiang was guilty of misleading or deceptive conduct. In May 2025, due to several procedural defaults, the applicants’ cross-claim and the corresponding paragraphs of their defence were struck out. Although a notice of intention to appeal against this order was filed, no notice of appeal was filed.
At the hearing on 30 June 2025, the applicants applied for an adjournment of the substantive hearing as well as for an order reinstating their cross-claim and the corresponding paragraphs of their defence (which alleged misleading or deceptive conduct). When both applications were refused, their counsel, whose retainer was limited to the applications, withdrew. As the applicants absented themselves from the hearing, no evidence was adduced or submissions made on their behalf
The primary judge determined Mr Jiang’s claim on the basis of the extant pleadings (from which claims of misleading or deceptive conduct had been excised). On 1 July 2025, judgment was entered for Mr Jiang in the sum of $7,367,846.60 (including interest), with costs.
The applicants applied to set aside the judgment on the basis that it had been given in their absence. They did not challenge the claim in debt but maintained that they had defences and a cross-claim arising from Mr Jiang’s misleading or deceptive conduct and sought to rely on affidavit evidence which had not previously been adduced. The primary judge dismissed their application on 21 August 2025.
On 26 August 2025, the applicants filed a summons seeking leave to appeal the 21 August orders and a notice of motion for an extension of the stay. They argued that the primary judge failed to consider the merits of their misleading and deceptive conduct claims and that it would be unjust if those claims were not heard. On 1 September 2025, the Court dismissed the motion.
Adamson JA held dismissing the motion:
(1) The primary judge entered judgment on the extant pleadings, which raised the sole issue whether the applicants were obliged by the 2016 agreement to pay Mr Jiang the sum claimed: [37].
(2) Although the applicants filed a notice of intention to appeal the dismissal of their cross-claim and those paragraphs of their defence alleging misleading or deceptive conduct, they did not file a notice of appeal. As the pleadings no longer contained allegations of misleading or deceptive conduct, it was not open to the primary judge to consider these matters when determining either the substantive hearing or whether to set aside the judgment under UCPR, r 36.16(2)(b): [38].
(3) Rule 36.16(2)(b) is concerned with whether a party’s presence at the hearing could have affected the result. Had the applicants remained at the substantive hearing and sought to adduce evidence of misleading or deceptive conduct, the primary judge would have been obliged to reject it as irrelevant because it fell outside the extant pleadings: [38]-[39].
(4) The interests of justice do not allow a party to rely on evidence which falls outside of an extant pleading particularly where relevant paragraphs were struck out, not appealed, and leave to reinstate them had been refused. Justice in this context includes the procedural context: [40].
Kairan Han and Fortune New City (Yarraville) Development Pty Ltd (the applicants) seek an extension of the stay granted on 21 August 2025 by Schmidt AJ (the primary judge) of her Honour’s order that monies paid into Court by the applicants be paid to Zhao Jiang (the respondent, or Mr Jiang).
At the conclusion of the hearing of the motion on 1 September 2025, I made the following orders, for which my reasons follow:
(1) Subject to order 2, dismiss the applicants’ notice of motion filed 26 August 2025.
(2) Extend order 4, made by Schmidt AJ on 21 August 2025, for a period of 14 days with the intention of providing the applicants the opportunity to seek review of the dismissal of the notice of motion.
(3) The applicants to pay the respondent’s costs of the notice of motion.
Some aspects of the procedural background warrant summary. On 24 September 2021, Mr Jiang commenced proceedings by statement of claim filed in the Common Law Division of the Supreme Court (the Court below) to recover more than $5 million under an agreement made with the applicants in 2016 (the 2016 agreement).
At the time of filing, Mr Jiang sought a freezing order, ex parte, against the applicants as Mr Han is a Chinese national who lives in China. Orders were made by Johnson J, as Duty Judge, including an order that the freezing order would cease to have effect if the sum of $5,685,262 was paid into Court. This occurred in about December 2023. By about April 2024, the parties agreed that the monies paid into Court ought be deposited into an interest-bearing account (in the names of their solicitors) and the Court made an order accordingly.
The applicants defended the claim and filed a cross-claim in December 2021. They alleged, in part, that they had entered into the relevant agreements, including the 2016 agreement, in reliance on Mr Jiang’s misleading or deceptive conduct, including as to the profitability of the development.
Mr Jiang applied for security for costs against Mr Han (on the basis that he is a Chinese national who lives in China). On 18 October 2022, Harrison AsJ made orders requiring $215,305 to be paid as security for costs within 28 days in a form acceptable to Mr Jiang. Her Honour also ordered that the proceedings be stayed if the amount was not paid within that time. As this order was not complied with, the cross-claim was stayed until further order. The stay was lifted by consent on 6 February 2023.
By 5 February 2023, Mr Jiang had filed all of his evidence. Over a period of more than a year thereafter, several directions were made by consent extending the time within which the applicants were to file their evidence in support of their defence on the basis of misleading or deceptive conduct and their cross-claim. The applicants failed to comply with these directions.
On 19 June 2024, the matter was listed for hearing to commence on 30 June 2025 with an estimate of 10 days.
On 15 November 2024, Mr Jiang filed a further motion for security for costs. On 13 February 2025, the primary judge ordered the respondents to provide a further $185,000 by way of security for costs within 14 days and, failing provision of such security, that the cross-claim be stayed until further order: Jiang v Han (No 2) [2025] NSWSC 48. The additional amount for security was not paid.
By motion filed on 23 April 2025, Mr Jiang sought dismissal of the cross-claim and that the corresponding paragraphs of the applicants’ defence be struck out. He relied on the failure to provide security for costs, as ordered, as well as the applicants’ failure to serve the evidence on which they relied to support their allegations of misleading or deceptive conduct. On 12 May 2025, the primary judge ordered that the amended cross-claim be dismissed and that paragraphs [22]-[40] of the amended defence be struck out (these paragraphs corresponded with the misleading or deceptive conduct claim made in the cross-claim): [2025] NSWSC 452. Directions were also made that the parties were to confer as to a revised estimate of the hearing which remained listed to commence on 30 June 2025.
The orders sought must be refused
- I am satisfied that despite the evidence led the orders pressed by the defendants must be refused, no satisfactory explanation having been given for their failure to remain to resist Mr Jiang’s claims at the June hearing, despite them turning on the proper construction of the 2016 agreement and not the further evidence they now wish to rely on. They not having established a just basis for the exercise of the Court’s discretion to set aside the orders made at that hearing, when I concluded that Mr Jiang had established the case he advanced, for reasons later explained.
- There can be no question that the defendants had, to that point, been given a fair opportunity to advance their case and to resist Mr Jiang’s claims.
- While on this application the defendants relied on Mr Han’s April 2025 affidavit, no explanation was able to be given for why it was not relied on to advance the motion dismissed for the reasons given in Jiang v Han (No 4). Nor why the evidence relied on to advance their July motion, was not led in support of the motion dealt with on 3 June.
- In my view the evidence accords with the affidavits put on only after judgment was given in favour of Mr Jiang in June, being able to have been put on long before, given what they deal with and what the evidence establishes about funds which the defendants arranged to have brought into the country.
…
- The defendants having had a fair opportunity to present their case, which they did not avail themselves of despite always being legally represented, including at the June hearing and they not having provided an adequate explanation for their failure to remain to present their case, I am not persuaded that they have met the onus which falls upon them, to establish a just basis for the orders which they seek. That not being established by the evidence which I have explained.
- I am certainly not satisfied that the defendants have established that they have an arguable case about the merits of what was decided in Jiang v Han (No 4) as to the proper construction of the 2016 agreement, which might reasonably bring about a different result to that which was there arrived at.
- In the result the orders sought must be refused.
It was common ground, in the Court below and in this Court, that UCPR, r 36.16(2)(b) applied. I note that this question is not free from doubt: see the discussion in Allchin v Hunter Water Corporation (No 3) [2025] NSWCA 75 at [38]-[49] (Kirk JA), which concerned UCPR, r 29.7 but which referred to UCPR, r 36.16 as part of the relevant context.
In substance, the primary judge found that the applicants had chosen not to resist the orders which Mr Jiang sought on the debt claim pursuant to the 2016 agreement (by absenting themselves from the hearing on 30 June 2025).
On 21 August 2025, the primary judge dismissed the applicants’ motion and made an order as sought by Mr Jiang that the funds which the applicants had paid into Court be released to him. Her Honour stayed that order until 5pm on 1 September 2025.
On 26 August 2025, the applicants filed a summons seeking leave to appeal against the primary judge’s orders made on 21 August 2025. Notwithstanding the requirements of UCPR, r 51.12(2)(b), the applicants did not include in the White Book which they filed with the summons, a summary of their argument. Mr Moujalli, who appeared on their behalf with Mr Antipas, confirmed that none had been filed either with the White Book or subsequently. Indeed, Mr Moujalli conceded that, as at the date of the application for an extension of the stay (1 September 2025), no summary of argument had been prepared.
On the same day, the applicants filed a notice of motion seeking an extension of the stay granted by the primary judge.
The draft notice of appeal contained in the White Book contains two grounds which allege that the primary judge erred in Jiang v Han (No 5) by failing to take into account the merits of the misleading and deceptive representation claims contained in the amended cross-claim (and corresponding paragraphs in the amended defence) and that it would be unjust if the applicants’ were denied the opportunity to have those claims heard.
Thus the relevant principles are analogous to those which govern the grant of interlocutory relief before trial to protect the status quo. The appellant must show that the appeal raises serious issues for the determination of the appellate court, and that there is a real risk that he will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal. This requirement will be satisfied if the appeal will be rendered abortive or nugatory unless a stay is granted. If these pre-conditions are established the Court will then consider the balance of convenience.
Mr Moujalli submitted that there were serious issues for the determination of this Court. He submitted that the primary judge was wrong to confine her consideration of the motion to set aside the judgment to the construction of the 2016 agreement (which he submitted was irrelevant to the present application for an extension of the stay). He further argued that her Honour ought to have included in her consideration of the interests of justice the matters raised by the applicants in their cross-claim and corresponding paragraphs of their defence since they were the subject of Mr Han’s affidavit of 22 April 2025. This affidavit was read for the first time on 1 August 2025. He submitted that her Honour was in error in not considering these matters since they were germane to the interests of justice, although they did not fall within the extant pleading (from which the allegations of misleading or deceptive conduct had been excised).
Mr Moujalli submitted that, although the primary judge referred to the misleading or deceptive conduct allegations in the prefatory observations, her Honour referred only to those relating to consequential loss and not to those which had brought about the applicants’ entry into the 2016 agreement.
Further, he submitted that, if the monies were paid out of the joint account to Mr Jiang, there was a real risk that they would not be recoverable if leave to appeal were granted and the appeal allowed. He relied on affidavit evidence which established that:
Tred Nominees Pty Ltd, a company with which Mr Jiang was associated (as sole director and majority shareholder), was subject to external administration in 2021;
Tred Nominees Pty Ltd was the sole shareholder of Greenstone Yarra Valley Pty Ltd, whose creditors resolved to wind it up on 25 November 2022;
Tred Nominees Pty Ltd was the sole shareholder of Ostar International Media Group Pty Ltd, of which Mr Jiang was a director from 16 February 2018 to 15 March 2019, and which was wound up on 3 March 2021;
Mr Jiang was a director of Eastern International Property Development Pty Ltd from 5 December 2013 to 2 October 2020, a shareholder of the company from 16 November 2015 to 6 November 2023 and the company was under external administration from 3 October 2019 to 1 November 2019;
Mr Jiang was named as the defendant in proceedings in the Supreme Court of Victoria (which evidence adduced on behalf of Mr Jiang established were dismissed with no order as to costs); and
Mr Jiang was the plaintiff in other proceedings in the Supreme Court of Victoria.
It was also alleged that Mr Jiang was subject to an enforcement order from the Beijing No 3 Intermediate People’s Court but this was not substantiated, and was denied by Mr Jiang who was unaware of any such order.
For these reasons, the motion ought be dismissed. However, as Mr Moujalli indicated that the applicants would like to have two weeks to consider whether to seek review of my orders and Mr Kidd did not wish to be heard against an extension for that period, I ordered that the stay continue for a further period of 14 days to permit this occur.
The parties accepted that costs ought follow the event.
As referred to above, I made the following orders on 1 September 2025:
Subject to order 2, dismiss the applicants’ notice of motion filed 26 August 2025.
Extend order 4, made by Schmidt AJ on 21 August 2025, for a period of 14 days with the intention of providing the applicants the opportunity to seek review of the dismissal of the notice of motion.
The applicants to pay the respondent’s costs of the notice of motion.
**********
Han
Jiang [2025] NSWCA 202
(1985) 2 NSWLR 685
(1990) 169 CLR 279
(1982) 148 CLR 658
(2002) 55 NSWLR 737
The notice of motion filed 26 August 2025 was dismissed, subject to a 14-day extension of the stay made on 21 August 2025 to provide the applicants an opportunity to seek review. The applicants were ordered to pay the respondent's costs of the motion.
On 10 June 2025, the applicants filed a notice of intention to appeal against the orders made on 12 May 2025. However, they took no steps to prosecute an appeal. Accordingly their notice lapsed in August 2025: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.9(1), (3).
On 16 June 2025, the matter came before Chen J for status review, in advance of the hearing on 30 June 2025. Although it appears from the primary judge’s reasons in Jiang v Han (No 4) [2025] NSWSC 695 at [3] that Chen J discussed the need for the applicants to file a notice of appeal and seek a vacation of the hearing from this Court, no notice of appeal was ever filed.
On 25 June 2025, the applicants filed a notice of motion seeking that the hearing of the matter be adjourned. They also sought an order that the cross-claim and the paragraphs of the amended defence which had been struck out be reinstated. This motion was returnable on 30 June 2025 at the commencement of the substantive hearing.
Mr Kirby of counsel appeared on behalf of the applicants on the motion, which was dismissed by the primary judge with costs: Jiang v Han (No 4). The applicants have not sought to challenge these orders. At the conclusion of the hearing of the motion and the making of orders, Mr Kirby sought and was granted leave to be excused (as his retainer was limited to the motion). The applicants’ other legal representatives also left the courtroom. Neither the applicants nor anyone on their behalf remained at the substantive hearing.
The substantive hearing proceeded in the absence of the applicants and without their participation. As a consequence no evidence was adduced on their behalf.
On 1 July 2025, the primary judge made orders which included judgment for Mr Jiang against the applicants in the sum of $7,367,846.60 (including pre-judgment interest of $2,010,549.60). The reasons for the primary judge’s orders (Jiang v Han (No 4)) indicate that the judgment turned on the construction of the 2016 agreement. Mr Jiang wholly succeeded in his claim in debt based on that contract (since the amount ordered corresponded with the amount claimed together with pre-judgment interest).
In Jiang v Han (No 4), her Honour did not address the applicants’ misleading or deceptive conduct claim and defence (since they no longer formed part of the extant pleadings), although these matters were referred to by the primary judge as part of her Honour’s summary of the procedural background to the proceedings generally.
On 14 July 2025, Mr Jiang filed a motion seeking an order for release of the funds paid into Court to him (which continued to be held in an interest-bearing account in the names of the parties’ solicitors).
On 18 July 2025, the applicants filed a motion seeking orders setting aside the judgment under UCPR, r 36.16(2)(b), which relevantly provides that the court may set aside a judgment after it has been entered if it has been given in the absence of a party.
In support of their motion, they relied on an affidavit of Mr Han (the first applicant) affirmed on 22 April 2025. Despite the affidavit having been sworn in time for the substantive hearing, it was not read by the applicants at that hearing (as they took no part in the substantive hearing). In this affidavit, Mr Han deposed to matters which were relevant to the cross-claim and corresponding paragraphs in the amended defence (which were designed to support the allegations that Mr Jiang was guilty of misleading or deceptive conduct).
These motions were heard by the primary judge on 1 August 2025 and determined on 21 August 2025: Jiang v Han (No 5) [2025] NSWSC 948. At the conclusion of the hearing, the applicants’ counsel accepted that if the applicants’ motion were dismissed, payment out from the joint account ought be ordered.
The primary judge’s reasons included the following:
Although Mr Moujalli accepted that the applicants had not put on any evidence of Mr Jiang’s personal financial position, he submitted that this Court ought draw an inference against Mr Jiang that he would be unable to repay the amount if the appeal were allowed as he did not put on evidence as to his financial means.
Mr Kidd SC, who appeared for Mr Jiang, submitted that the applicants had no arguable case which would justify the stay which they sought. Further, he submitted that the applicants had not established that they would suffer any prejudice if the funds were released since there was no evidence that Mr Jiang had guaranteed the debts of the companies that have gone into external administration, that he had ever been bankrupt or ever failed to pay any amount of money which might have been ordered by a court for him to pay, or that there were any proceedings against him on foot. He submitted that the evidence provided no basis for any inference that Mr Jiang is impecunious or would be unable to repay the funds released if leave to appeal were granted and the appeal allowed.
The lengthy procedural summary of relevant decisions which I have set out above demonstrates that the judgment was entered by the primary judge on the basis of the extant pleadings at the time of the final hearing. At that time, it was common ground that the only issue on the pleadings was whether the construction of the 2016 agreement obliged the applicants to pay Mr Jiang the sum claimed.
Although the applicants filed a notice of intention to appeal the orders refusing to allow the cross-claim and corresponding paragraphs of the defence to be resurrected, they did not act on the intention by filing a notice of appeal. Because, at the time the primary judge heard the subject application, the pleadings no longer contained allegations of misleading or deceptive conduct, it was not open to the primary judge to take these matters into account when deciding whether to set aside the judgment pursuant to UCPR, r 36.16(2)(b). I accept Mr Kidd’s submission that one cannot show a reasonably clear case on the merits in respect of a claim that is not reflected in the pleading (the relevant paragraphs having been struck out). I also accept that the power under UCPR, r 36.16(2)(b) to set aside a regularly obtained judgment on the basis that a party was absent from the hearing which resulted in that judgment is concerned with whether a party’s presence at the hearing could have made a difference.
Had the applicants remained at the substantive hearing and sought to adduce evidence of misleading or deceptive conduct (such as was deposed to by Mr Han in his affidavit sworn on 22 April 2025), the primary judge would have been obliged to reject it as irrelevant because it fell outside the extant pleadings. The possibility that Mr Jiang would have acquiesced in allowing the case to be conducted outside the pleadings can be put to one side as fanciful: cf Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ); [1982] HCA 70 and Banque Commerciale SA (En Liqn*) v Akhil Holdings Ltd* (1990) 169 CLR 279 at 286-287 (Mason CJ and Gaudron J); [1990] HCA 11.
In this context, the interests of justice do not allow, much less entitle, a party to rely on evidence which falls outside of an extant pleading, particularly in circumstances where the paragraphs to which the evidence was relevant have been struck out (and the order that they be struck out was not challenged on appeal) and an application to resurrect them has been refused. Justice in this context includes the procedural context.
In these circumstances, I am not persuaded that the applicants have established serious issues for the determination of this Court or any reasonably based allegation of injustice.
As to the question of prejudice, I accept Mr Kidd’s submission that the evidence adduced by the applicants was insufficient to establish a real risk that Mr Jiang will not be able to repay the money if leave were granted and the appeal allowed. In circumstances where the applicants’ evidence did not touch on Mr Jiang’s personal financial position, no inference can be drawn from the fact that Mr Jiang did not give evidence of his own financial position.
Mr Jiang has also shown prejudice which would arise were the stay to continue. It appears from the evidence that, by reason of Mr Han’s location in China, it is unlikely that Mr Jiang will be paid any money beyond that which is in the joint account. There is already a significant disparity between the interest which is earned in that account and the amount of the applicants’ liability for post-judgment interest, which continues to accrue. Any further delay serves to enlarge that disparity. I reject Mr Moujalli’s submission that, in order to establish prejudice, Mr Jiang must show that he would be able to obtain a return on the funds greater than post-judgment interest.