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[2026] NSWSC 1218
Supreme Court of NSW
2026-10-02
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Liu v Zhong [2026] NSWSC 1218
Hearing dates: 2 October 2026
Date of orders: 2 October 2026
Decision date: 02 October 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. The notice of motion filed on 7 September 2026 is dismissed.
2. The applicant is to pay the respondent’s costs of the motion except that those costs are not to include the preparation of the affidavit of Ms Emily Larson dated 30 September 2026.
Catchwords: CIVIL PROCEDURE — Stay of proceedings — pending appeal of Local Court interlocutory decision — final judgment reserved in Local Court — where appeal rights will be available after Local Court decision — stay application a waste of time and money — stay refused
Legislation Cited: Local Court Act 2007 (NSW), ss 39, 40
Civil Procedure Act 2005 (NSW), s 56
Category: Procedural rulings
Parties: Ruihe Liu (Plaintiff)
Xiao Mei Zhong (First Defendant)
Nuo Xu (Second Defendant)
Representation: Counsel:
W Huang (Plaintiff)
J Green (Defendants)
Solicitors:
Austin Haworth & Lexon Legal (Plaintiff)
ATA Legal (Defendants)
File Number(s): 2026/ 282862
Publication restriction: No
The proceedings in this court were commenced with the filing of a summons on 9 July 2026.
The applicant filed a notice of motion on 7 September 2026, which has come to me as Duty Judge. The orders sought by the motion are for proceedings in the Local Court of New South Wales to be stayed forthwith, pending determination of a summons appealing an interlocutory decision of the Local Court that has been filed in this Court by the applicant.
An alternative order is that if final judgment is delivered in the Local Court proceedings before the summons is heard, that the execution and enforcement of the judgment is stayed, again pending determination of the summons.
The proceedings in the Local Court have reached the stage of the hearing having been completed and the judgment has been reserved.
The summons relates to an amendment that was allowed by a Local Court judge on 25 June 2026. His Honour permitted the plaintiff in the Local Court proceedings to add a second plaintiff.
The defendant in the Local Court case is the plaintiff in the Supreme Court and the applicant on this motion (Ms Ruihe Liu). The plaintiffs in the Local Court are the defendants in the Supreme Court and the respondents on this motion (Ms Xiao Mei Zhong and Ms Nuo Xu). For convenience I will refer to the parties by their names.
Each side has relied on two affidavits:
Ms Liu has relied upon her affidavit of 29 July 2025 (originally filed in the Local Court), and on the affidavit of her solicitor Mr Wen Xi Huang dated 1 September 2026.
Ms Zhong and Ms Xu have relied on two affidavits of their solicitor, Ms Emily Larson, dated 30 September 2026, and 1 October 2026, respectively.
There are literally hundreds of pages of affidavit material, most of no relevance to the current issues. The costs of this motion, let alone the summons, are entirely out of proportion to the original dispute. Not only is the affidavit material far too long, it is often very difficult to identify the relevant annexures, and generally make sense of what is being written. Why I need endless photographs of a battered black BMW is beyond me.
I think a chronology of relevant events will assist:
| 23/08/2024 | A collision occurs between a vehicle allegedly owned by Ms Zhong, being driven by Ms Xu (a BMW 428I) and a vehicle driven by Ms Liu (a Nissan 370Z). | | 02/05/2025 | A statement of claim is filed in the Local Court by Ms Zhong against Ms Liu alleging that Ms Liu’s negligence caused Ms Zhong to suffer damages, made up of repair costs and the hire of an alternative vehicle while the BMW was being repaired. | | 02/09/2025 | A defence is filed denying that Ms Zhong was the “owner, driver, bailee, or otherwise a person with any legal or proprietary interest” in the BMW. The defence admits the collision and Ms Liu’s negligence. The only positive defences relate to the standing of Ms Zhong to bring the claim and the assessment of quantum. Unfortunately, Ms Liu does not have third-party property damage insurance | | 01/06/2026 | Ms Zhong filed a notice of motion seeking leave to file an amended statement of claim. The proposed amended statement of claim adds Ms Xu as a plaintiff and alleges that she was a bailee of Ms Zhong’s vehicle when the accident occurred. | | 25/06/2026 | Atkinson LCJ made orders permitting the amendment of the statement of claim. | | 26/06/2026 | Atkinson LCJ ordered Ms Zhong and Ms Xu to pay Ms Liu’s costs thrown away by the amendment. | | 09/07/2026 | Summons filed in the Supreme Court by Ms Liu. | | 11/08/2026 | Hearing of the substantive case before Howard LCJ. The decision was reserved. A timetable was set for written submissions (defendant by 22 September 2026; plaintiffs by 29 September 2026). | | 07/09/2026 | Notice of Motion filed in the Supreme Court by Ms Liu. | | 30/09/2026 | Notice of motion filed in the Local Court by Ms Liu seeking a stay of the proceedings. The motion has a return date of 29 October 2026. |
The purpose of the summons is to attack the permission given to amend the statement of claim. The argument seems to be that Ms Liu had approached and prepared the case on the basis that she was required to meet the allegations in the statement of claim which included that Ms Zhong was entitled to claim the damages arising from the collision.
Ms Liu had asserted that Ms Zhong did not have standing to bring the case. This was because Ms Zhong was not the driver or owner of the car and Ms Xu (the added plaintiff) had represented to Ms Liu that she was the owner. The assertion of a lack of standing was made consistently over the whole of the preparation of the case, a period exceeding 12 months.
Therefore, the amendment to the statement of claim, bringing in an additional plaintiff, was too late and overwhelmingly prejudicial to Ms Liu’s case. The admission of negligence left little else for the defendant to argue besides standing and quantum. The amendment should never have been permitted submitted Ms Liu. An impassioned plea to this effect was made on behalf of Ms Liu in court today.
If the summons in this Court is successful, then the matter will be returned to the Local Court to be decided on the basis of the original statement of claim.
If the summons is not successful, then presumably there will be a decision made on the allegations contained in the amended statement of claim. If that decision is against Ms Liu, she will have the rights of appeal provided by ss 39 and 40 of the Local Court Act 2007 (NSW). Depending on the nature of the appeal she may need leave to bring the appeal. However, she needs leave now to pursue the summons. This is because the appeal is from an interlocutory decision (s 40(2)(a)).
In my view the notice of motion before me, and probably the summons, are a waste of time and money and certainly contrary to the exhortations of s 56 of the Civil Procedure Act 2005 (NSW). If Ms Liu has a valid point in relation to the amendment to the statement of claim that point will be no less valid if a decision has been made by Howard LCJ. The final judgment will be just as susceptible to an appeal whether or not the appeal is heard before the judgment or after it. There may also be other points of appeal that arise from the judgment. Mr Huang told me that he had been restricted in his cross-examination of Ms Xu, which if correct, could give rise to another appeal point.
This is not a case where the interlocutory decision affects the continued preparation of a case so that the overturning of the decision might lead to a saving of time and costs. Howard LCJ has heard the case, and no more preparation is needed.
I do not know why the stay application in the Local Court was not made sooner, and not brought to the attention of Howard LCJ, so that his Honour could consider delaying his judgment until the summons was heard.
In my view the motion is unnecessary and should be dismissed. I will make orders accordingly.
Normally costs would follow the event, but I think there should be some concession made arising from the volume of unnecessary material filed by Ms Zhong and Ms Xu.
I make the following orders:
The notice of motion filed on 7 September 2026 is dismissed.
The applicant is to pay the respondent’s costs of the motion except that those costs are not to include the preparation of the affidavit of Ms Emily Larson dated 30 September 2026.
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Liu
Zhong