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[2025] NSWCA 268
respondent. Summons seeking leave to appeal dismissed with costs. The Court had ordered dismissal shortly after submissions and gave its reasons subsequently (at [1], [25]).
The applicants chose not to continue defending the trial after the judge refused an adjournment. They later tried to reopen the judgment and rely on claims and defence allegations that had already been removed from their case by earlier orders. The Court of Appeal held that the applicants had not challenged the finding that they had no satisfactory explanation for leaving the trial, and that this strongly counted against reopening the judgment. It also held that the earlier orders remained in force, so the merits review could not be expanded to cover the removed parts of the case. Leave to appeal was refused, with costs.
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2,267 words · generated 06/10/2026
Han v Jiang (No 3) [2025] NSWCA 268 concerns an application for leave to appeal, not a substantive appeal after leave had been granted. The applicants were Kairan Han and Fortune New City (Yarraville) Development Pty Ltd. The respondent, Zhao Qing Jiang, had brought proceedings against them in 2021. The judgment records delay on both sides, but notes that Jiang served his evidence on 5 December 2023, and that the defendants received five extensions during 2024 to file their own evidence ([2]).
2 cited instruments linked from this judgment.
The proceedings were listed on 19 June 2024 for a final hearing starting more than a year later, on 30 June 2025. The estimated hearing length was ten days. At the start of the trial, the defendants, represented by counsel, applied for an adjournment. The application was refused. After a short adjournment, they instructed counsel to withdraw from the remainder of the hearing. The trial continued, and judgment was entered for Jiang on 1 July 2025, with reasons delivered on 3 July ([2]). The Court of Appeal emphasised that the applicants did not seek to challenge those events or the refusal of the adjournment ([3]).
There was also a significant history concerning the defendants’ cross-claim and misrepresentation defence. On 13 February 2025, the primary judge ordered security of $185,000 for the cross-claim, payable within 14 days, failing which it would be stayed. The security was not paid. On 12 May 2025, the cross-claim was dismissed and the parts of the defence alleging misrepresentation were struck out ([4]). The defendants later sought to rely on those matters again, but their application was rejected on 30 June 2025 ([5]). They did not seek leave to appeal those earlier decisions ([6]).
After judgment, the defendants applied to set it aside and sought a contested trial. Their application also again sought to revive the cross-claim and misrepresentation defence ([7]). The primary judge dismissed the application on 21 August 2025. The applicants then sought leave to appeal from that refusal ([8], [11]). The Court of Appeal dismissed the summons with costs ([1], [25]).
The proposed appeal had two grounds. In substance, the applicants argued that the primary judge failed to assess the merits of their full proposed case and failed to give sufficient weight to the injustice they said would result. The Court identified two answers: the lack of a satisfactory explanation for their absence from trial, and the fact that the wider case they wanted assessed was not part of the operative pleadings because of the earlier orders ([13], [16]-[24]).
The Court treated the explanation for absence as central. It referred to the established approach in which a party seeking to set aside a judgment regularly made in their absence ordinarily needs both an arguable case on the merits and an explanation showing why justice requires the absence to be excused. It referred to Jordan CJ’s statement in Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243, and to the formulation in Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 at [51]. It also noted that Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 reaffirmed the need to consider the adequacy of the explanation ([14]-[15]).
The Court acknowledged that the principles are not rigid rules in every case. But it described the explanation for absence as a starting point and said that, ordinarily, a judgment will stand where there is no satisfactory explanation ([16]). That mattered particularly because the applicants did not challenge the primary judge’s finding that their explanation was inadequate ([12], [16]).
The circumstances also made it difficult to see a different exercise of discretion. The applicants’ absence followed a conscious decision to withdraw their legal representatives after their adjournment application was refused at the start of a hearing that had been listed more than a year earlier. The Court accepted in principle that exceptionally strong merits might reduce the importance of an inadequate explanation. But it considered there was no real prospect of a favourable exercise of discretion on these facts without a satisfactory explanation ([18]). It therefore rejected the submission that the merits of the entire proposed case had to be assessed regardless of the circumstances of the absence.
The second answer concerned the limits of the case the applicants were entitled to advance at that point. The primary judge had assessed whether there was an arguable case about the construction of the 2016 agreement, the issue that had been decided at trial. The applicants complained that the judge had not also considered their cross-claim and misrepresentation allegations ([19]). But those matters had been dismissed or struck out in May, and a renewed application to reinstate them had been rejected in June. The applicants had not appealed those orders ([19]-[20]).
The Court considered the respondent’s argument that the applicants first needed a proper basis to set aside the May orders, including evidence of a material change in circumstances after the June refusal to reinstate the claims ([21]). Although the applicants filed further evidence after judgment, some of it was an affidavit made in April 2025 that they had not explained failing to use earlier. Nor could their counsel identify evidence showing why the more recent affidavits could not have been filed sooner. On that record, the later filing did not establish a material change after 30 June ([22]).
The earlier procedural orders remained binding unless set aside. The Court said it would have been wrong for the primary judge to assess matters outside the scope of the operative pleadings without a basis to set aside those orders ([23]). Both proposed grounds therefore rested on a mistaken assumption that the application to set aside the judgment reopened the whole of the defendants’ case ([24]). The Court concluded that no basis for leave had been established ([25]).
The judgment does not purport to create a new, comprehensive test for setting aside a judgment entered in a party’s absence. Instead, it applies existing principles identified through the authorities before it. Those principles included the ordinary need to show an arguable merits case and to give an explanation for the absence that supports excusing it: Vacuum Oil, as quoted and discussed at [14], and Magnate Projects at [15]. The Court also referred to Pham as reaffirming the importance of the adequacy of the explanation ([15]).
The decision’s emphasis is on how those considerations operate together in a leave application. An arguable case does not automatically overcome an unexplained absence. The Court described the explanation as a starting point and reasoned that where it is concededly inadequate, it may be very difficult to show that the discretion would be exercised differently on appeal ([16]-[18]). The Court did not say that an inadequate explanation invariably defeats every application. It expressly left room for a case where merits weigh so heavily that the explanation matters less, while finding that the facts before it did not present such a case ([18]).
The decision also applies a procedural finality principle to the scope of the merits inquiry. Claims or defences removed by orders that have not been set aside are not treated as if they remain available merely because a later application seeks to reopen the final judgment. The applicants’ attempt to have the whole case considered could not bypass the earlier orders dismissing the cross-claim and striking out the misrepresentation allegations ([19]-[24]).
As to the “after” state of the law, the supplied judgment records the Court of Appeal’s application of those principles to this dispute. It does not state that it overrules or disapproves the cited authorities, and it does not identify any later doctrinal change. The judgment’s practical contribution in this case is its explanation that an unchallenged finding of no satisfactory explanation, combined with binding orders limiting the pleadings, left no proper basis for leave ([16]-[25]).
At [16], the Court says: “Ordinarily if there is no satisfactory explanation, the judgment will stand.” In plain English, a party who wants a judgment reopened after not appearing generally needs to explain why they were absent. The Court treated the absence of such an explanation as a serious obstacle, not a detail that could simply be put aside while the merits were examined.
At [18], the Court recognises that there might be a case where the merits are so strong that an inadequate explanation does not carry much weight. This is a qualification, not the outcome here. The Court distinguished the applicants’ circumstances because their absence followed a conscious decision made after an adjournment application failed at the beginning of a long-listed trial.
At [22], the Court addresses evidence filed after judgment. It notes that an affidavit made in April 2025 had not been relied upon earlier, and that no evidence showed why the other affidavits could not have been filed sooner. The plain-English point is that later production of evidence does not, without an explanation of its earlier absence, necessarily demonstrate a material change in circumstances.
At [23], the Court explains that earlier procedural orders continued to bind the parties until set aside. The primary judge could not properly assess the merits of claims or defences that were outside the operative pleadings unless there was first a basis to undo those earlier orders.
At [25], the Court gives its conclusion: no basis for a grant of leave had been made out, and the summons was dismissed with costs. This was a procedural outcome. The Court was deciding whether the proposed appeal should be allowed to proceed, not determining a fresh trial of the underlying contractual dispute.
The judgment is most directly relevant to applications seeking to reopen a judgment entered after a party did not remain to defend a trial, particularly where the party’s absence followed a deliberate decision made after an unsuccessful adjournment application. It shows the significance the Court attached to a hearing that had been listed more than a year in advance and to the applicants’ continued legal representation, including at the trial ([2], [17]-[18]).
It is also relevant where the party seeking to reopen a judgment relies on a broader proposed defence or cross-claim than the case permitted by existing orders. The decision indicates that a later application directed at the final judgment does not itself erase procedural orders that previously removed parts of the case. The party’s proposed merits argument must be considered against the pleadings and orders then in force ([19]-[24]).
The facts matter. The Court did not announce that every failure to explain absence must defeat an application, or that merits can never affect the result. It acknowledged a possible case where the merits weigh so heavily that the adequacy of the explanation matters less ([18]). Nor does the decision decide the merits of the applicants’ dismissed cross-claim or misrepresentation allegations. It holds that those matters were not part of the merits assessment in this leave application in the absence of a basis to set aside the earlier orders ([23]-[24]).
The judgment supplied here is dated 11 December 2025 and contains no account of later judicial treatment. It therefore provides no source-grounded basis to say whether later courts have followed, distinguished, applied, or otherwise treated Han v Jiang (No 3).
Within this judgment, the Court relies on earlier authorities rather than discussing any later treatment of its own decision. It applies the principles it draws from Vacuum Oil, Magnate Projects and Pham ([14]-[16]). It also refers to the earlier decisions in the same dispute, Jiang v Han (Nos 2, 3, 4 and 5), primarily to explain the procedural history and the orders that remained in place ([2], [4]-[8], [10]).
The case is therefore best understood from this source as an application of existing principles to a particular procedural sequence: an unsuccessful adjournment request, withdrawal from the trial, an inadequately explained absence, and prior orders removing parts of the proposed case. Any account of subsequent treatment would require later judgments not included in the supplied material.
The judgment leaves open the precise circumstances in which the merits of an unadjudicated case might weigh so heavily that the adequacy of the explanation for absence does not greatly matter. The Court recognises that possibility at [18], but does not define its limits or identify a factual example that would satisfy it.
It also does not set out a general test for what amounts to a material change of circumstances sufficient to justify revisiting an earlier procedural order. It decides only that the affidavits before it did not establish such a change, because some could have been filed earlier and no evidence explained why the others could not have been ([21]-[22]).
The Court does not determine the underlying merits of the cross-claim or the struck-out misrepresentation defence. Its reasoning is procedural: those matters had been removed from the case by orders that had not been set aside, so they were outside the merits inquiry relevant to the application before it ([19]-[24]). Nor does it separately decide the broader submission that the refusal to reopen the case impermissibly punished the applicants under the statutory provisions they cited. Its reasons address that submission through the binding procedural orders and the limits of the case then available ([20]-[24]).
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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 (No 3) [2025] NSWCA 268
Hearing dates: 11 December 2025
Date of orders: 11 December 2025
Decision date: 11 December 2025
Before: Leeming JA and Price AJA
Decision: Summons seeking leave to appeal dated 26 August 2025 dismissed with costs.
Catchwords: PROCEDURE – application to set aside judgment entered in absence of party – whether primary judge erred in dismissing application – defendants unrepresented after failed adjournment application at commencement of 10 day trial – no challenge to finding that no satisfactory explanation for failure to appear at trial – whether primary judge erred in failing to consider matters outside scope of pleadings – no basis for grant of leave made out
Cases Cited: 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
Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331
Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239
Category: Principal judgment
Parties: Kairan Han (First Applicant)
Fortune New City (Yarraville) Development Pty Ltd (Second Applicant)
Zhao Qing Jiang (Respondent)
Representation: Counsel:
R Marshall SC, G Antipas, M Long (Applicants)
N Kidd SC (Respondent)
Solicitors:
Hiways Lawyers (Applicants)
Sunfield Chambers Solicitors & Associates (Respondent)
File Number(s): 2025/327473
Publication restriction: Nil
THE COURT: Shortly following the conclusion of submissions, the Court ordered that the summons seeking leave to appeal be dismissed with costs, and indicated that our reasons would follow. These are our reasons.
The respondent, Mr Zhao Qing Jiang, brought proceedings as long ago as 2021 against the applicants, Mr Kairan Han and Fortune New City (Yarraville) Development Pty Ltd. There was delay on both sides, but Mr Jiang’s evidence was served on 5 December 2023. Subsequently there were five extensions of time granted throughout 2024 for the defendants/applicants to file their evidence. The proceedings were listed on 19 June 2024 for a final hearing to commence more than 1 year later, on 30 June 2025, with an estimate of 10 days. At the outset of that hearing, the applicants appeared by counsel and sought an adjournment, which was refused: Jiang v Han (No 4) [2025] NSWSC 695 at [13]-[22]. After a brief adjournment, the applicants instructed their counsel to withdraw from the remainder of the hearing. The Court continued to hear the proceedings, resulting in a final judgment in favour of Mr Jiang entered on 1 July 2025 with reasons given on 3 July 2025: Jiang v Han (No 4) at [11].
None of the foregoing is sought to be challenged.
There is another important aspect of the procedural history. In response to Mr Jiang’s claim based on contract, the applicants filed a cross-claim, and also relied in their defence on alleged misrepresentations. On 13 February 2025, the Court ordered following a contested hearing that security for the costs of the cross-claim, in the amount of $185,000, be paid within 14 days, in default of which it would be stayed: Jiang v Han (No 2) [2025] NSWSC 48. The security was not paid. Subsequently, following a further contested hearing, the Court ordered that the cross-claim be dismissed and the parts of the defence alleging misrepresentation be struck out: Jiang v Han (No 3) [2025] NSWSC 452. That occurred on 12 May 2025.
On 25 June 2025, as part of the same notice of motion which sought to vacate the hearing of the 10 day trial, the applicants also sought leave to rely on the cross-claim and the parts of the defence which had previously been struck out. That application was also rejected by the primary judge on 30 June 2025.
No application for leave to appeal has been brought from any of the decisions concerning security for costs, or staying or dismissing the cross-claim or striking out that part of the pleading which alleged misrepresentation, or refusing to permit reliance on the cross-claim or the parts of the defence which had been struck out.
Instead, this summons seeking leave to appeal turns on a motion filed on 18 July 2025 seeking to set aside the judgment and other orders so that there could be a contested trial. The motion also sought, once again, to reinstate the misrepresentation cases which had been contained in the cross-claim and the parts of the defence which had been struck out on 12 May 2025 and in respect of which a further application to reinstate it had been dismissed on 30 June 2025.
There was an oral hearing on 1 August 2025 and by a reserved judgment delivered on 21 August 2025 the primary judge dismissed the motion: Jiang v Han (No 5) [2025] NSWSC 948. It is from those orders that the applicants seek leave to appeal.
It is convenient to defer for the moment addressing the evidence relied on in support of their motion, and instead to proceed directly to her Honour’s reasons.
The primary judge recorded at [12] that there was no dispute about the principles applicable to an application to set aside a final judgment. Her Honour reproduced those principles at [20], encapsulating them at [22] by saying that what is required is that the applicants “give a satisfactory explanation of the course which they actually pursued, as well as that they advance their claims bona fide and that they have an arguable case”. After setting out the parties’ submissions, her Honour’s dispositive reasoning is at [53]-[69], which are best reproduced in full:
The orders sought must be refused
53 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.
54 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.
55 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.
56 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.
57 That there was any real financial difficulty which precluded the timely service of their evidence, or the payment of the further security ordered was not established, given what the bank and trust records establish. Nor does the evidence about Mr Han no longer being able to visit Australia and the difficulties which control exercised over money paid out of China into Australia causes, establish the claimed problems.
58 Why none of the available funds were used to provide the further security which the Court had ordered was not explained.
59 Nor was there a satisfactory explanation for the decision not to remain to resist the case Mr Jiang successfully advanced at the June hearing about the proper construction of the 2016 agreement, despite that turning on the words used in the document itself.
60 The orders made on 3 June were regularly entered after Mr Jiang was heard, the defendants having made a forensic decision while represented by counsel not to remain to defend the case he pressed, their adjournment application and other orders sought having been refused.
61 It may be accepted that the results of the forensic decisions which the defendants made include the consequences which they advanced in their submissions. But that must have been apparent earlier, when they failed to provide the further security ordered and to serve their evidence.
62 Those failures were dealt with in Jiang v Han (No 3), where I explained how the amended cross claim had been stayed since February 2025 and despite the approaching hearing and Mr Jiang’s April motion, by which he sought to have the cross claim and corresponding provisions of the defence dismissed, the defendants had still not sought orders to have the stay lifted, or to have leave to serve their evidence.
63 I was then satisfied that given how they had sat on their hands, Mr Jiang was entitled to have his case heard at the long listed hearing and that the orders which he sought dismissing the stayed cross claim, as well as corresponding provisions of the defence had to be made.
64 Orders of the kind which the defendants now seek must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. Together with the other matters earlier identified. Their consideration, I am satisfied, cannot justly result in the orders the defendants sought being made, given the circumstances in which they pursue those orders.
65 I consider that such orders would also not accord with the requirement which s 56 imposes, that regard be had to the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings, when the Court’s discretions are exercised.
66 The defendants, it must be accepted, repeatedly failed to comply with the obligations which the section also imposes on them. That Mr Jiang also did not comply with all of the Court’s procedural orders must be accepted, but that does not provide a just basis for the orders which they now seek.
67 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.
68 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.
69 In the result the orders sought must be refused.
1. The primary judge erred in Jiang v Han (No 5) [2025] NSWSC 948 at [53], [68] and [69] in failing to take into account of the evidence in support of the merits of the appellants’ amended defence and amended cross claim which demonstrated an arguable case which might reasonably bring about a different result from that ordered on 1 July 2025 and in doing so failed to consider whether any useful purpose would be served in setting aside the judgment entered on 1 July 2025 in accordance with the principles in Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243 as approved and applied in Magnate Projects Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 at [48] and in Pham v Gall [2020] NSWCA 116 at [57], [110] and [158].
2. The primary judge erred in Jiang v Han (No 5) [2025] NSWSC 948 by failing to take into account the degree of injustice to the appellants that would be suffered by them the effect of which was to impermissibly punish them contrary to the principles in Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 [36]-[47] as a consequence of the primary judge’s orders made on 21 August 2025, namely the denial of the opportunity to have the appellants’ case in its entirety (including by amended cross claim) heard and the impossibility of that case being brought by way of fresh proceedings, and in so doing the primary judge acted contrary to ss 57(1)(a) and 58 Civil Procedure Act (NSW).
Thus there is no challenge to the finding that there was no satisfactory explanation for the applicants’ decision not to contest the hearing. Instead, the applicants complain that the primary judge did not address the merits of the case which they now seek to go to trial. Proposed ground 2 supplements proposed ground 1 by contending that the result is impermissibly penal.
There are two succinct answers to this.
First, where there is a concededly inadequate explanation for the failure of the defendants to appear at trial, it is difficult to see how it could be appropriate to grant leave to appeal. There is no dispute that one of the matters which, generally speaking, an applicant must establish in such a case is that there was an adequate explanation. In Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243, Jordan CJ said that:
As a general rule (although not necessarily in every case, if some reason exists for departing from it: Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40; Austn Digest (1934-1939) 1859), the Court requires an affidavit showing prima facie that the defendant has a good defence on the merits: Evans v Bartlam [1937] AC 473 at 480, 488-9, and also an explanation of his absence which shows that justice requires that in the circumstances it should be excused. (emphasis added)
In Magnate Projects Pty Ltd v Youma Constructions (No 2) Pty Ltd [2005] NSWCA 331 at [51], Hodgson JA, with whom M W Campbell AJA agreed, referred to “the long-established requirement that a person applying to set aside an order, regularly made in his or her absence, ordinarily bears an onus of showing an arguable case on the merits, that is, a case that might reasonably bring about a different result, as well as an explanation for his or her absence” (emphasis added). The necessity to have regard to the adequacy of the explanation is reaffirmed in Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [57] and [110].
True it is, as Jordan CJ explained, that those principles do not in every case operate as rigid rules. But one of the starting points for the exercise of the discretionary power to set aside a judgment obtained in the absence of the other party is the explanation for that party’s absence. Ordinarily if there is no satisfactory explanation, the judgment will stand. In the present case there is no challenge to her Honour’s conclusion that there was no adequate explanation. It is very hard to see how, in the event the discretion were re-exercised, any different result could be reached by this Court from that reached by the primary judge. That tells powerfully against the grant of leave.
That is to say, even if there were error in the assessment of the case which the applicants have not been able to advance, in the absence of any satisfactory explanation for their decision to instruct their legal representatives not to appear, it is difficult to see how any other result could realistically be reached in the event that the discretion was re-exercised following a grant of leave. The result is the absence of a proper basis for the grant of leave.
This was pointed out, prominently and succinctly, in the written submissions supplied in advance of the hearing by the respondent. There was no response in the submissions filed in reply. When it was raised in oral address, Mr Marshall agreed that there was no adequate explanation, said that the failure was regrettable, but insisted that what nonetheless needed to be done was to assess the merits of the entire defence and cross-claim which the applicants had wished to advance. We do not agree. There may in principle be a case where the merits of the unadjudicated case weigh so heavily in the exercise of discretion that the adequacy of the explanation does not greatly matter. However, in a case such as this where the applicants’ absence from the trial was a consequence of a conscious decision to gamble on the success of an adjournment application made at the commencement of a hearing which had been set down more than a year before, it is very difficult to see that there was any real prospect of a favourable exercise of discretion absent a satisfactory explanation.
Secondly, there is no challenge to the assessment by the primary judge of the absence of strength in the case extant on the pleadings. The gravamen of the complaint is that her Honour failed to go further to consider the broader case which the applicants wished to put forward. In particular, they complain that there was no consideration of their cross-claim and the parts of their defence which alleged misrepresentation. However, those parts were dismissed or struck out on 12 May 2025, and an application to reinstate them was rejected on 30 June 2025.
**********
Han
Jiang
(2020) 102 NSWLR 269
Summons seeking leave to appeal dismissed with costs. The Court had ordered dismissal shortly after submissions and gave its reasons subsequently (at [1], [25]).
The respondent submitted that it was not open to the primary judge to consider the merits of the case which had been struck out or dismissed. The applicants said that it was mandatory to do so, having regard to the fact that their application extended to reinstating the cross-claim and the misrepresentation defence.
However, that issue does not arise. By way of fallback, the respondent maintained that if there were to be any consideration of the misrepresentation defence and cross-claim, it was necessary first for the applicants to establish a proper basis to set aside the orders made on 12 May 2025, bearing in mind the failed attempt to reinstate that aspect of their case on 30 June 2025. That in turn requires establishing some material change of circumstance in the weeks after 30 June 2025.
True it is that after final judgment had been entered against them the applicants served a suite of evidence. Part of this was an affidavit made by Mr Han in April 2025, and as her Honour observed at [55], there was no explanation for why this had not earlier been relied upon. There were also affidavits filed more recently, but once again Mr Marshall was unable to point to any evidence explaining why it had been impossible for those affidavits to have been filed earlier. In the absence of such evidence, the existence of those affidavits cannot amount to a material change of circumstances in the period after 30 June 2025. As much is reflected in the reasoning of the primary judge at [57]-[63].
In the absence of any basis to set aside the earlier unchallenged procedural orders which continued to bind the parties until and unless set aside, it would have been wrong for the assessment made by the primary judge of the merits of the case sought to be advanced to extend to matters outside the scope of the pleadings.
That is to say, the substance of both proposed grounds of appeal proceeds on a misapprehension that the assessment of the case which the applicants seek to be permitted to run extends to the whole of their case, contrary to unchallenged orders limiting it to the aspect of the case in fact considered by the primary judge.
The result is that no basis for a grant of leave has been made out. For those reasons, the Court ordered shortly after the conclusion of submissions that the summons seeking leave to appeal be dismissed with costs.