Plaintiff v First Defendant

2 The defendants filed an amended summons on 23 January 2026 seeking leave to file and serve an amended defence and to adjourn the trial date.

3 On 4 February 2026, I concluded that the defendants' application should be allowed. These are my reasons.

4 The proceeding was commenced by filing a writ and statement of claim on 26 November 2024.

5 Allegations in the statement of claim include that the deposit payable on the contract of sale was $2,900,000 of which $600,000 had been paid and $2,300,000 remained unpaid.

6 The solicitors representing the defendants at that time filed a defence on 24 January 2025. The defence was drawn by counsel, who also prepared a proposed amended defence and appeared for the defendants on this application. The defendants admitted and sought to rely on the full terms and effect of the contract of sale. The defendants submitted AT Group paid $600,000 to Staar Armstrong Creek as part payment of the deposit, particularised as follows:

(i) $300,000 was paid on or before 11 August 2023;

(ii) $200,000 was paid on or before 3 October 2023; and

(iii) $100,000 was paid on or about 5 October 2023.

The defendants denied non-compliance with the notice of rescission, which they alleged was defective and of no force or effect. They alleged that Staar Armstrong Creek had repudiated the contract of sale and that AT Group had accepted the repudiation.

7 Orders were made on 27 February 2025 timetabling interlocutory steps, including discovery and for mediation to take place by 30 June. The proceeding was listed on 22 July for a further directions hearing.

8 The solicitor on record for the defendants changed on 18 June 2025.

9 On 30 July 2025, orders were made by consent fixing the proceeding for trial on 3 February 2026 on an estimate of two days. The orders timetabled preparatory steps, including the filing and service of witness outlines and expert reports and preparation of an agreed list of issues and chronology. The relatively minor delay by Staar Armstrong Creek in completing those steps is not material to this application. Staar Armstrong Creek filed an outline of evidence by its director, Darshan Jaisinghani on 18 September 2025 and an expert report of valuer, Geoffrey Brown, on 17 October.

10 At a directions hearing on 9 December 2025, the defendants foreshadowed an application to adjourn the trial. A judicial registrar ordered that any such application be filed and served by 19 December and heard on 20 January 2026.

11 On 19 December 2025, the defendants filed a summons applying to adjourn the trial for a period of about two months to enable them to obtain a valuation report. The summons was supported by an affidavit sworn by Ronny Randhawa, solicitor for the defendants, on the same day. There is no mention in the summons or Randhawa's affidavit of an application for leave to amend the defence. However, I was told that issue was raised at the directions hearing on 9 December.

12 The defendants filed the second Randhawa affidavit, sworn on 16 January 2026, exhibiting a proposed amended defence. On 19 January, the defendants filed an affidavit affirmed by Tajinder Singh, father of Angaddeep, in support of the application to adjourn and amend the defence.

13 On 23 January 2026, orders were made requiring the defendants to file an amended summons on that day and for that summons to be heard on the first day of trial.

14 The central allegation in the proposed amended defence is that the following representations were made by Staar Armstrong Creek shortly prior to it signing the contract of sale:

(c) the Plaintiff would subsequently cause an alternative, nominee, purchaser to step into the First Defendant's shoes as purchaser of the Armstrong Creek Property, under the Contract of Sale (First Representation);

(d) the First Defendant would not be required to pay any money towards the purchase of the Armstrong Creek Property (Second Representation);

(e) the First Defendant would not be required to settle on the purchase of the Armstrong Creek Property (Third Representation);

(f) the personal guarantor under the Armstrong Creek Property contract of sale would not be required to pay any money pursuant to the guarantee, and the guarantee would not be enforced, despite the written terms of the guarantee (Fourth Representation)[.]

The defendants allege the representations were misleading or deceptive, and that they were induced by them to enter into the contract of sale. The defendants rely on defences based on alleged breaches of sch 2, s 18 of the Competition and Consumer Act 2010 (Cth) (The Australian Consumer Law) and promissory estoppel.

15 Angaddeep said that from late June 2025 until late November he instructed Randhawa not to undertake work in preparation for trial of the proceeding as he and his father were both confident the dispute would resolve without the need for legal assistance or a trial. Angaddeep said 'I did not want to spend money on legal fees for a matter I believed would resolve without legal involvement.' Tajinder said that in about mid-September he attended a meeting with Jaisinghani in order to try to settle the proceeding. Tajinder said that while offers were exchanged, no settlement was achieved. He also said that in his experience, most property disputes of this nature are resolved by the parties without legal proceedings. There is no other evidentiary basis for Angaddeep's expressed confidence that the dispute between the parties would resolve by private negotiation outside the legal proceeding.

16 I accept Angaddeep may have a naivety in relation to legal proceedings, however, the defendants have been legally represented throughout this proceeding. Angaddeep did not say that he was unaware of the timetabling orders or that the advice he received from his lawyers about the proceeding was in some way deficient. His unfounded opinion that the dispute would resolve does not justify ignoring the proceeding and timetabling orders.

17 A party may be given leave at any stage to amend a pleading, including by withdrawing an admission,[1] for the purpose of determining the real questions in controversy between parties to a proceeding.[2]

18 Considerations relevant to the exercise of the discretion to allow an amendment to a document or adjourn a trial include prejudice to the opposing party, the applicant's explanation for the change in position and for any delay, the need for parties to be given a fair trial and to identify the real issues they say are in dispute, and the waste of court resources.[3] The overarching purpose of the Civil Procedure Act 2010 (Vic) is relevant to the exercise of the discretion.[4]

19 Prejudice to a party caused by an adjournment and amendment may extend beyond wasted costs to the unnecessary delay in proceedings.[5]

20 An amendment that has no real prospect of success will almost invariably be refused.[6]

21 The defendants rely on relatively extensive evidence given by Tajinder to plead the proposed amended defence. That evidence provides a proper basis for the material facts alleged in the proposed amended pleading.

22 The defendants allege the representations were conveyed to them by the agent appointed by Staar Armstrong Creek to conduct the sale of the Armstrong Creek property. Staar Armstrong Creek submitted there was no real as opposed to fanciful prospect of the proposed defence succeeding because it could not be established on the pleaded material facts that it had made the representations to the defendants or that the agent's authority extended to making the representations on its behalf.

23 Staar Armstrong Creek's reliance on the decision of Cameron J in Tan v Russell ('Tan'),[7] in support of the above submission was misplaced. In Tan, Cameron J recognised that the usual authority of a real estate agent does not extend to binding a vendor to terms with a purchaser. However, the proposed defence is not an attempt to contractually bind Staar Armstrong Creek based on the acts of the agent. The defence is based on an allegation that Staar Armstrong Creek engaged in misleading or deceptive conduct by conveying certain matters to the defendants through the agent.[8] While some of the material considered on this application puts in question the strength of the proposed defence, I reject Staar Armstrong Creek's submission that the application to amend should be dismissed on the basis that there is no real prospect of the defence succeeding.

24 Even accepting there was a degree of naivety associated with Angaddeep's approach to the proceeding, the reasons he gives do not justify his delay in providing instructions to his solicitor. However, the defendants acted reasonably promptly from December 2025 when instructions were given by Angaddeep. The application to adjourn was foreshadowed almost two months prior to the scheduled trial date and the proposed amended pleading was served about two and a half weeks before trial. The waste of court resources caused by the adjournment is relatively limited.

25 I accept that the proposed amended pleading raises for determination real issues that are in dispute between the parties.

26 This proceeding has an uncomplicated history. This is the only pleading amendment that has been sought by either party. There have been no interlocutory disputes. Despite the delay caused by the adjournment, the parties will have a trial date just over 18 months after the proceeding was issued.

27 I am satisfied in all the circumstances that the prejudice arising from amendment of the pleading and adjournment of the trial date can be satisfactorily ameliorated by an order that the defendants pay Staar Armstrong Creek's costs of the amended application and costs thrown away by reason of the amended defence and the adjournment of the trial date. It is appropriate in the circumstances of this case that costs be awarded on an indemnity basis and within a short space of time the defendants pay to Staar Armstrong Creek an appropriate lump sum on account of those costs.

28 The interests of justice favoured giving the defendants leave to amend the defence as proposed and adjourning the trial of the proceeding. On 5 February 2026, I made orders re-listing the proceeding for trial on a five-day estimate on 13 July, setting a timetable for interlocutory steps, and awarding Staar Armstrong Creek costs in accordance with the above reasons.

[1] Supreme Court (General Civil Procedure) Rules 2025 (Vic) r 25.02(5).

[3] Gregorich v Khouri & Ors [2020] VSC 5; Yap v Lee (No 2) [2024] VSC 730 ('Yap').

[5] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 182 [5].

[6] ABL Nominees Pty Ltd v MacKenzie (No 2) [2014] VSC 529, 12 [19].

[7] [2016] VSC 93..

[8] See, eg, Makings Custodian Pty Ltd v CBRE (C) [2017] QSC 80; Williams v Pisano [2015] NSWCA 177; (2015) 90 NSWLR 342; Havyn Pty Ltd v Webster [2005] NSWCA 182.