- Rafferty v Time 2000 West Pty Ltd

Solicitors: Keypoint Law (Plaintiff) PwC (Second Defendant) File Number(s): 2019/247634

Judgment

1. By my Judgment delivered on 12 May 2020, in Re Century Sunshine Investment (Australia) Pty Ltd [2020] NSWSC 548 ("Earlier Judgment"), I dealt with an application by the Plaintiff, Mr Joseph Sy, for orders in respect of the conduct of the proceedings, and an order sought by the Second Defendant, Mr Peter Lin, that the proceedings be dismissed. I set out the conclusions that I had reached at, relevantly, paragraphs 21 and 32-34 as follows: "It seems to me that the amendments now proposed by Mr Sy involve a substantial change in his case against Mr Lin, which essentially abandons all previous relief sought against Mr Lin and pursues, for the first time, a claim for injunctive relief against Mr Lin's involvement in a further share issue of a similar character, if Mr Sy is otherwise successful in the proceedings. On that basis, it seems to me that any amendment should only be allowed on terms that Mr Sy pay Mr Lin's costs of the proceedings to date, as agreed or as assessed. That order will have the consequence that allowing or not allowing the amendment has no impact on costs since, if the amendment were not allowed, the existing proceeding would be summarily dismissed on the basis that no tenable claim is pleaded against Mr Lin. I will, however, allow the parties a short opportunity to make further submissions as to that matter, which was not fully addressed in submissions at the hearing. … For these reasons, I would not grant leave to amend the Statement of Claim in its present form other than by consent, if the parties wish to avoid further delay and further costs in amending the Statement of Claim. If the parties do not reach agreement in that regard, I would grant leave to file an Amended Statement of Claim that pleads the material facts on which Mr Sy relies for the claim to injunctive relief, likely on terms that Mr Sy pays Mr Lin's costs of the proceedings to date, as agreed or as assessed. As I have noted above, it seems to me that those costs are thrown away by reason of the amendment, which commences, in substance, an entirely new, although limited, case against Mr Lin. I will not order the summary dismissal of the proceedings against Mr Lin since I am unable to find that the proceedings involve an abuse of process, and an Amended Originating Process and an Amended Statement of Claim that pleads the material facts supporting a claim for injunctive relief would plead a proper claim for injunctive relief against Mr Lin. My preliminary view is that Mr Sy must pay the costs of this application, where he could only succeed in maintaining a limited amendment on terms, and Mr Lin's summary dismissal application would have succeeded but for the changes in Mr Sy's position in the course of the application and the opportunity that he will be given to plead the material facts underling the claim for interlocutory relief."