Hu v Zheng (No 1)

Medium Neutral Citation: Hu v Zheng (No 1) [2025] NSWDC 414

Hearing dates: 23 July 2025

Date of orders: 23 July 2025

Decision date: 23 July 2025

Jurisdiction: Civil

Before: Neilson DCJ

Decision: Application refused.

Catchwords: CIVIL – Application to amend statement of claim – Application made on final day of hearing, during reply submissions of plaintiff – Substantial changes to allegation – Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 principles applied.

Legislation Cited: Competition and Consumer Law Act 2010 (Cth) Sch 2 ('Australian Consumer Law')

Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Dare v Pulham (1982) 148 CLR 658

Texts Cited: Nil.

Category: Procedural rulings

Parties: Plaintiff – Jiani Hu
First Defendant – Yefei Zheng
Second Defendant – Yueling Zhuo
Third Defendant – Jessica Trading Pty Ltd

Representation: Counsel:
Plaintiff – Mr Hopkins, A.
Defendants – Mr Marshall, R. SC.
Solicitors:
Plaintiff – Longton Blackwell
Defendants – Apex Lawyers

File Number(s): 2023/00322527

Publication restriction: Nil.

Judgment

1. HIS HONOUR: These proceedings commenced before me on Monday, 26 May 2025. They continued for five days until Friday, 30 May 2025 when I stood them over to Monday, 21 July 2025. In the interim I had other commitments and four weeks of leave, which was the first holiday I had taken since 2019.

2. The oral evidence was concluded last Monday, 21 July 2025. The rest of that day and the following day, yesterday, 22 July 2025, were taken up by the necessity of allowing counsel the time to prepare written submissions and in my reading them and reading certain parts of the evidence again. This morning at about 11.30am I returned to the Bench to hear oral submissions. I heard from counsel for the plaintiff first, then the oral submissions of the defendant, and the plaintiff is now in reply. In reply the plaintiff seeks to amend the statement of claim to allege alternative claims of misrepresentation.

3. The substantive case is based upon alleged breaches of the Competition and Consumer Law Act 2010 (Cth) Sch 2 ('Australian Consumer Law') for which the plaintiff claims damages in the sum of $270,282.82 or such other amount as the Court might determine. The proceedings have been vigorously contested.

4. One of the allegations made in the statement of claim is that the value of the third defendant, a company, was $860,000. According to a deed executed by the plaintiff, the company was valued at $600,000 and the defendants have sought to prove that the plaintiff had received a representation that the third defendant was valued at $860,000. The defendants have not sought to disprove the allegation made in the deed. Because of the way the defendants have run their case the plaintiff now seeks leave to amend the pleading such that it would read thus:

"That the value of the defendant was $860,000 or, in the alternative, $600,000 or, in the alternative, $575,000".

5. This is opposed by the defendants because the defendants addressed me at some length both in writing and orally about the $600,000 not being a matter that the defendants were required to justify, merely that the defendants made no representation of $860,000.

6. The plaintiff seeks to rely upon the decision of the High Court of Australia in Dare v Pulham (1982) 148 CLR 658. That was a very different case to the present case. In that case the plaintiff claimed damages inter alia for loss of earning capacity in an action for negligence for personal injury. The evidence adduced enabled the jury, which decided the issue, to return a verdict that was in fact greater than that that had been sought by the plaintiff's lawyers. However, the High Court made the point that the evidence had been admitted without objection, which enabled the jury to reach its verdict.

7. The Court (Murphy, Wilson, Brennan, Deane and Dawson JJ) said this at 664:

"Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In liq.) (1916) 22 CLR 490 at p 517; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v Cameron (1936) 54 CLR 572 at 576-577); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR at 517, 518; Sri Mahant Govind Rao v Sita Ram Kesho (1898) LR 25 Ind App 195 at 207). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446)."

8. Here there is a substantial difference between a valuation of $860,000 and a valuation $600,000 and a valuation of $575,000. The plaintiff chose to put forward only the $860,000 valuation and now, at the very heel of the hunt, seeks to amend it, essentially giving it a different value, which substantially is different from the allegations originally made and persisted with throughout the trial.

9. There must be an end to litigation, interest rei publicae ut finis sit litium. This is a very late application for an amendment at the heel of the hunt, and one must bear in mind the principles arising in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

10. The application for the amendment is refused.

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