X P Hua & Anor v M S Tuckerman & Ors [2017] NSWSC 1147 | Case summary

X P Hua & Anor v M S Tuckerman & Ors [2017] NSWSC 1147 | Case summary | Zoe

Judgment - ex tempore (revised 28 july 2017)

These proceedings have a long and somewhat unfortunate history to which I have referred in earlier judgments and which I need not repeat. The proceedings were commenced in April 2014, and the Eighth, Ninth and Tenth Defendants were joined in the proceedings by the Plaintiffs' Amended Statement of Claim filed over two years ago, in May 2015. Now, several years after the relevant events and three years after the commencement of the proceedings, at a time that evidence is well advanced and the Plaintiffs have served their evidence in chief, including lay evidence and expert evidence, and the Eighth and Tenth Defendants would have filed their affidavit evidence, but for this application which required the order for them to do so to be vacated, the Plaintiffs seek to amend their case against the Eighth, Ninth and Tenth Defendants to a significant extent.
The Ninth Defendant has not appeared in the proceedings for some time, did not appear in this application and, so far as the evidence goes, does not seem to have been served with the application although it plainly affects his interests and although the need for such service was drawn to the Plaintiffs' attention at an earlier directions hearing. The Eighth and Tenth Defendants, who are represented and who appear in the application, oppose the amendment which is sought against them.
The application was originally brought by Notice of Motion filed 14 June 2017 which sought an order under s 64 of the Civil Procedure Act 2005 (NSW) that the Plaintiffs have leave to file and serve a Second Further Amended Statement of Claim, 116 pages in length, in the form attached to the affidavit of their solicitor, Ms Qiu, affirmed 14 June 2017 and have leave to rely on the expert evidence of Ms Cherie Wright. By Amended Notice of Motion filed today, by leave, the Plaintiffs rely on both ss 64 and 65 of the Civil Procedure Act for the amendment and seek to rely on a Second Further Amended Statement of Claim in the form attached to Ms Qiu's further affidavit affirmed 3 July 2017, to which I will refer below.
Ms Qiu's first affidavit dated 14 June 2017 outlines the amendments sought to be made in the Second Further Amended Statement of Claim, including additional claims against a partnership of migration agents comprising the Eighth to Tenth Defendants, in respect of breach of contract, negligence, breach of implied warranties and misleading and deceptive conduct, and also refers to the draft expert report of Ms Wright which the Plaintiffs seek leave to rely upon, and indicates that the Plaintiffs do not seek to lead further evidence in chief in support of the amendments, apart from the evidence of Ms Wright. Ms Qiu's evidence is that: "In the course of preparing the plaintiffs' evidence the full extent of the involvement of the tenth defendant as their migration agent in advising, persuading, or otherwise being instrumental in the decision to make the investment of $2 million in the subject property development became clear. Until the affidavits of the first plaintiff and the second plaintiff had been completed I was not aware of the extent of this involvement. The extent of this involvement led me to consider whether the plaintiffs may have further claims against the eighth defendant, ninth defendant, and tenth defendants."
Ms Qiu also refers to an expert report of Mr Roams, on which the Plaintiffs rely, to the effect that the property development project in issue could not have succeeded as it could not have obtained bank finance, and Ms Qiu contends that the Eighth to Tenth Defendants ought to have advised the Plaintiffs as to that matter. Ms Qiu also refers to the terms of a migration agency contract, to which reference had been made in earlier pleadings, and her evidence is that she formed the view that, in addition to an existing claim for breach of fiduciary duty by failure to disclose a commission, the Plaintiffs may have additional claims.
Ms Qiu's affidavit does not explain why, in taking instructions to commence the proceedings, or in respect of the earlier pleadings, or over the last several years of the proceedings, the matters to which she refers as emerging in the Plaintiffs' evidence had not been investigated, although I have noted above that at least the migration agency contract, and I should add issues as to the viability of the project, had been identified in earlier versions of the Statement of Claim.
Turning now to the proposed Second Further Amended Statement of Claim, in the form exhibited to Ms Qiu's first affidavit, which was amended to some extent in her second affidavit, it pleads new claims against the Eighth to Tenth Defendants over ten pages, in paragraphs 176A to 176Y. Those pleadings contained allegations that the Eighth to Tenth Defendants "knew or ought to have known" various matters and pleads the migration agency contract (which, as I noted above, had already been pleaded in earlier pleadings) and breach of a duty of care by the Eighth to Tenth Defendants failing to take certain steps. There may be, as I noted in the course of submissions this morning, issues as to the adequacy of some aspects of that pleading, to the extent that the pleading is conclusory in nature, or supported by further particulars which are also conclusory in nature, without identification of the material facts on which it relies, or any cross-reference to other material facts pleaded in the existing pleading. I do not, however, take account of issues of that kind, which would be more appropriate to a strikeout application, in dealing with this application.
The Second Further Amended Statement of Claim identifies a claim for loss exceeding $2.2 million against the Eighth to Tenth Defendants arising from these matters, and also pleads oral representations allegedly made by the Tenth Defendant to the Plaintiffs, over eight years ago, in March, April and June 2009. To some extent, the subject matter of those representations, namely a representation that the relevant development was likely to be a good or a profitable investment, had also been pleaded in earlier versions of the Statement of Claim.
Ms Qiu's affidavit refers to a draft report of Ms Wright dated 14 June 2017, purportedly prepared following a letter of instructions dated 7 June 2017. There is some suggestion that Ms Wright must have been briefed some time before that letter of instructions, because reference occurs in her report to materials having been provided in at least mid-May 2017, to a third party, in respect of her report. That letter of instructions refers to the Plaintiffs' evidence in chief and provides a summary of that evidence, although Ms Wright's draft report does not make clear whether she assumes the correctness of some or all of that evidence in order to express the opinions that she expresses. I will refer briefly to an argument as to the admissibility of Ms Wright's report, raised in this application, below, although it will ultimately not be necessary to determine that question. I should note that a second letter of instructions to Ms Wright provided further instructions, inter alia, as to aspects of the development property.
The Plaintiffs also tendered an affidavit of Ms Lee dated 28 February 2017 which annexed a translation of the migration services contract between the Plaintiffs and the Eighth to Tenth Defendants (Ex A1). It seems to me that little turns on the question of when that document was translated, because it is common ground that both the Plaintiffs and Ms Qiu are Mandarin speakers, and a translation was not necessary for them to conduct the case, and that document had been pleaded in earlier versions of the Statement of Claim before that translation was prepared. I accept that, as Mr Archibald, who appears for the Plaintiffs, points out, that document apparently imposed obligations on the Eighth to Tenth Defendants, but that matter would have been apparent prior to their joinder in the proceedings. The Plaintiffs also rely on an expert report of Mr Roams (Ex A2) to which I have referred above and the affidavits of the Plaintiffs (Ex A4, A5) to which I will also refer.
Mr Archibald initially made brief submissions in support of the amendment application, and submitted that the claims in the amended pleading arose out of the "same facts" as the existing claim, and referred to the Code of Practice for migration agents and the relevance of the Plaintiffs' reliance in that respect. Those submissions did not, when first made, address questions of delay or potential prejudice to the Eighth to Tenth Defendants from the amendments. As I noted above, the Ninth Defendant does not appear to have been served with this application, does not appear and has had no opportunity to make, and does not make, submissions in respect of the application. I will return to the significance of that matter below. The Eighth and Tenth Defendants responded by submissions dated 26 June 2017.
The Plaintiffs then served a second affidavit of Ms Qiu dated 3 July 2017, shortly before the amendment application was due to be heard, and Mr Archibald then sought to make detailed oral submissions, which required that hearing to be adjourned. Ms Qiu's second affidavit annexes a revised Second Further Amended Statement of Claim, now 115 pages in length, which makes some amendments to the earlier pleading, although they do not affect the case against the Eighth and Tenth Defendants in a substantive way. Ms Qiu refers in that affidavit to the chronology of the proceedings and matters which she considers have delayed them. It is not necessary, in dealing with this application, to attribute fault for those matters, because the relevant issue in this application is the fact that it is now eight years since the relevant events and over three years since the proceedings were commenced, not how that came about, still less who is at fault for it. Ms Qiu also refers to matters which she says she realised after having received the report of Mr Roams on which the Plaintiffs rely, and indicates the amendments are sought in order to avoid a perceived risk that the Court may order an account of the profits made by the Eighth to Tenth Defendants rather than compensation to the Plaintiffs in respect of the claim for breach of fiduciary duty.
Pursuant to orders made on 4 July 2017, the Eighth and Tenth Defendants subsequently served submissions responding to the matters raised by Ms Qiu and the Plaintiffs responded on 17 July 2017. I have this morning heard oral submissions, subject to time limits under s 62 of the Civil Procedure Act, where the matters had previously been comprehensively addressed by the process of written submissions to which I have referred.
I have had regard to the detail of the submissions, but will refer to the issues raised relatively briefly, and give reasons only to the extent necessary so that the parties may understand why I have reached the decision that I have reached. In particular, where I am not persuaded by a ground on which the application to amend has been opposed, but where that matter is not determinative of the application, I will deal with it only briefly.
The Eighth and Tenth Defendants oppose the amendment application on numerous grounds, and I have drawn on the identification of those grounds in Mr Archibald's submissions in reply with gratitude, in setting out those grounds. The first basis of the application is that the Plaintiffs have deleted earlier pleadings, on which the Eighth and Tenth Defendants say they have relied, by an unparticularised claim for contributory negligence in their Defence filed in October 2016. There is no suggestion that the matters deleted by the Plaintiffs were admissions; some of those deletions relate to claims which have been settled against another party to the proceedings; and it does not seem to me that the Eighth and Tenth Defendants, by cross-referring to the Plaintiffs' claim in a general way, obtain any entitlement to prevent amendment of that claim in the future in a proper manner. If the Eighth and Tenth Defendants wished to repeat matters in the Plaintiffs' claim, which have now been deleted, it would be open to them to do so in a defence to the Second Further Amended Statement of Claim, if leave to file the Second Further Amended Statement of Claim were properly granted. I would not refuse the amendment application on that basis.
The second basis for opposition was that the Eighth and Tenth Defendants pointed out, rightly, that the order made by the Court on 17 May 2017 permitting the Plaintiffs to file an interlocutory process seeking leave to amend their Statement of Claim was restricted to additional claims against the Eighth and Tenth Defendants, and did not extend to claims against the Ninth Defendant who had not participated in the proceedings for some time, and that the amendments sought to be made go beyond that leave. While that is the case, I do not regard that matter as determinative and, in a proper case, the Plaintiffs could have sought an extension of that leave. The more fundamental difficulty, to which the Eighth and Tenth Defendants also refer, and which I will address in more detail below, is that the Ninth Defendant is not represented by the solicitors who represent the Eighth and Tenth Defendants and has not been served with this application, or given an opportunity to appear in it.
Mr Archibald notes in submissions that the solicitors who now act for the Eighth and Tenth Defendants had previously acted for the Ninth Defendant, but there is no contest that they ceased to act for the Ninth Defendant in December 2015. That notice of ceasing to act disclosed, as it was required to do, the address of the Ninth Defendant then known to the solicitors so as to allow service to that address going forward. The Plaintiffs rely on two affidavits of attempted service in September 2016 and July 2017, indicating that they were unable to serve documents on the Ninth Defendant at that address at that time. Nonetheless, there is no evidence that the Plaintiffs have served, or attempted to serve, the Ninth Defendant with this application; they have not restricted the amendment so as to amend the Statement of Claim against the Eighth Defendant and Tenth Defendant alone; and the result is that they seek an amendment of the Statement of Claim, which would substantially affect the interests of the Ninth Defendant, without affording him notice of the application or an opportunity to be heard in opposition to it.
Mr Archibald submits that the Ninth Defendant has received notice of the application because he was previously represented by solicitors, and then withdrew their instructions, and no prejudice to him would arise provided he is given notice of the amendment or an order for substituted service is made prior to the hearing. I do not accept that submission. The Ninth Defendant is a natural person and may represent himself, and is under no obligation to be represented by solicitors; if he chooses not to attend proceedings and risk a judgment in his absence, then that is a matter for him; but that does not have the result that the Plaintiffs are not required to give notice to the Ninth Defendant, to the extent that they seek to take steps which are adverse to his interests, not least because it is open to the Ninth Defendant to choose to attend proceedings, and to oppose such steps, if he wishes to do so.
The Plaintiffs rely on authority that a party who files a notice of appearance waives irregularity of service. While I accept that that may well be the case, where a notice of appearance is filed after an initiating process is irregularly served, this is not a case of irregular service of an initiating process, but a case of failure to serve the amendment application. It seems to me that that matter is sufficient, in itself, to require that the application be dismissed, particularly where the Plaintiffs have been on notice of this issue at least since it was raised at the directions hearing on 4 July 2017 and have chosen to pursue the amendment application against the Ninth Defendant, when he was not on notice of the fact that it would be made. There is no need to address, at this point, whether any other issues as to service of documents on the Ninth Defendant, which may or may not exist in respect to other aspects of the proceedings, may have an impact on events at the final hearing, since that will be a matter for that hearing.
Next, the Eighth and Tenth Defendants submit that no satisfactory explanation has been given for the delay in the amendment, and Mr Archibald responds by reference to Ms Qiu's evidence to which I have referred above. Reliance was placed on the fact that the Plaintiffs are not native English speakers, which can be a matter that causes difficulty in the conduct of proceedings. In this case, it seems to me that it should have caused no difficulty, because it is common ground that the Plaintiffs and Ms Qiu each speak Mandarin, and there should have been no difficulties in communication between them in respect of the conduct of the proceedings.
I proceed on the basis, consistent with Ms Qiu's evidence, that she did not appreciate several matters until the Plaintiffs' evidence in chief was prepared and Mr Roams' evidence was served. However, that does not seem to me to answer the question whether those matters would have been addressed, by a solicitor acting reasonably, in the three years in which the proceedings were on foot. In fairness to Ms Qiu, it does not seem to me that it is necessary for me to determine that matter in this application, and I will not do so. Mr Archibald refers, in submissions, to the complexity of the case and the involvement of several parties. While I accept that the case obviously involves several parties, and has a degree of complexity, it seems to me that it is no more complex than a significant number of cases heard in this Court, notwithstanding that perhaps the pleadings in this matter are more prolix and repetitive than might be desirable.
It seems to me that Ms Qiu's evidence provides no basis for any finding that the Plaintiffs, or Ms Qiu, would have been unable to plead the matters that are now pleaded, had adequate instructions been taken from the Plaintiffs at an earlier point in the proceedings, particularly where I have noted above that the retainer between the Plaintiffs and the Eighth and Tenth Defendants and the issues as to the viability of the project had already been raised in earlier pleadings. This is a matter to be taken into account, together with any prejudice to the Eighth and Tenth Defendants, in determining whether the amendment should be permitted.
Mr Archibald also submits that the Plaintiffs are not at fault for delays in the proceedings. However, as I have noted above, it seems to me that that is not to the point, because the amendment application needs to be considered on the basis that eight years have elapsed since the relevant events, and three years since the proceedings were commenced, and that is relevant to prejudice, irrespective of the cause, or any question of whether any particular party or parties were at fault in that respect.
The Eighth and Tenth Defendants also submit that the proposed claims are statute-barred. Mr Archibald submits that the claims arise from the same or substantially the same facts as those giving rise to the existing cause of action for breach of fiduciary duty and that, unless the Court otherwise orders, the amendments will relate back to the date on which the proceedings commenced under s 65(3) of the Civil Procedure Act. It seems to me that there is force in the Eighth and Tenth Defendants' submissions that the issues of commonality exist only at a high level, and that the claims for negligence, breach of contract and misleading and deceptive conduct involve a significant number of new facts, including the detail of representations alleged in the Plaintiffs' evidence, which were not previously pleaded or, if previously pleaded, were not relevant to any previous cause of action. While Mr Archibald submits that those matters were relevant to causation, in the claim for breach of fiduciary duty, it is not immediately apparent why that should be so, given the manner in which causation is determined in claims for breach of fiduciary duty. It is ultimately not necessary for me to express a view as to that matter, given the findings that I reached on other grounds.
Fifth, the Eighth and Tenth Defendants submit that the amendments would delay the determination of the proceedings and, more fundamentally, prejudice them by requiring them to answer a new and expanded cause of action, in circumstances that a significant time had elapsed since the relevant events and the proceedings were now well advanced. I recognise that the Eighth and Tenth Defendants have not yet served their affidavit evidence, since the order for them to do so was vacated pending this application. Nonetheless, it seems to me that the submission as to prejudice to the Eighth and Tenth Defendants is plainly correct, where the amendments will require at least them, and potentially also the First and Second Defendants, to now return to the pleading stage, and require them to address a substantially new and substantially wider cause of action, and require them to give evidence as to conversations and matters that occurred over eight years ago, and investigate and search for documents that relate to matters that occurred over eight years ago, to address the new breach of contract, negligence and representational case.
Mr Archibald submits that the Plaintiffs plead representations as to future matters, and acknowledges in submissions that that raises a potential reversal of onus, or at least the need for the Eighth and Tenth Defendants to lead evidence to establish any reasonable grounds for the representations. That is, with respect, no answer to the prejudice to the Eighth and Tenth Defendants which arises from the belated reliance on the representational case now pleaded, and indeed exacerbates that prejudice by shifting the onus, either in a legal or evidentiary sense, to the Eighth and Tenth Defendants to support those representations long after they were made. Mr Archibald also refers to the fact that the Plaintiffs' evidence has been served, and that little further evidence will be required from the Plaintiffs, but that also does not remove the prejudice to the Eighth and Tenth Defendants, since they presently need not respond to that evidence to the extent that it does not address any case against them. Mr Archibald's submission that there is little further to be done by the Plaintiffs also directs attention in the wrong place, since any prejudice arises, not from what the Plaintiffs now need to do, but from what the Eighth and Tenth Defendants would need to do, to respond to amendments now made long after the relevant events, and well into the conduct of the proceedings.
The applicable principles in respect of an amendment to a pleading are well established and it is not necessary for me to set them out at length. I am required to exercise my discretion whether to allow the amendments having regard to the provisions of ss 56-58 and 64 of the Civil Procedure Act. Section 58 requires the Court to have regard to the dictates of justice when considering an order for the amendment of a document and requires the Court to have regard to the provisions of ss 56 and 57. Section 56 identifies the overriding purpose of the just, quick and cheap resolution of the real issues in dispute in the proceedings and s 57 requires proceedings to be managed, having regard, inter alia, to the just determination of the proceedings. Section 64(2) provides, subject to s 58, for all necessary amendments to be made for the purpose of determining the real questions raised by the proceedings.
I have summarised the applicable principles in Morony v Reschke [2015] NSWSC 860 at [68]ff, on which I have drawn on several of the observations that follow. I there referred to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ("Aon"), to which both parties appropriately draw attention. The joint judgment there observed, in relation to rules of Court that are similar to s 56 of the Civil Procedure Act, that: "Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and costs are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said, that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
The majority also there observed (at [100]) that justice is not always measured in money and the Court is entitled to weigh the strain that litigation imposes upon litigants; and (at [102]) that factors such as the nature and importance of the amendment to a party applying for it cannot be overlooked, and that "the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown...are to be weighed against the grant of permission to a party to alter its case." The majority further observed (at [111]) that an application for leave to amend should not be approached on the basis that a party has any entitlement to raise an arguable claim, subject to payment of costs; all matters relevant to the amendment should be assessed; and substantial delay and wasted costs assume importance in an application for leave to amend.
I have also had regard to the reference to those principles in Dymocks Book Arcade Pty Ltd v Capral Ltd [2011] NSWSC 1423 at [5]-[10], where the Court again referred to the relevance both of the nature of the amendments and their importance to the Plaintiffs on the one hand, and prejudice to the Defendants on the other. The need for the Court to have regard to prejudice arising from delay in dealing with applications of this kind was also emphasised by the Court of Appeal in Bi v Mourad [2010] NSWCA 17. The principles identified by the High Court in Aon are also to be applied, in New South Wales, having regard to the statutory context established by the Civil Procedure Act and particularly to the emphasis on the dictates of justice and the need for the just, quick and cheap resolution of the real issues in dispute in the proceedings. In Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230, Allsop ACJ emphasised, among other matters, that delay is itself corrosive of the Court's ability to provide justice in a particular case, and to that extent affects the determination of particular cases as well as the public cost in delivering judgment.
In this case, so far as questions of the importance of the amendment to the Plaintiffs and the prejudice to the Eighth and Tenth Defendants are concerned, I have had regard to the dictates of justice, including the fact that the amendment is important to the Plaintiffs and involves a substantial expansion of their case against the Eighth and Tenth Defendants which may operate to the Plaintiffs' advantage. It should be recognised that that advantage to the Plaintiffs involves a corresponding detriment to the Eighth and Tenth Defendants of being required to address detailed allegations as to oral representations that are raised in evidence, and in the amended pleading, for the first time many years after the conversations occurred, and to address claims of negligence and breach of contract long after the event, in circumstances that memory will inevitably have dimmed; the detriment to the Ninth Defendant of allowing an amendment that is significantly adverse to him as to which he has been given no opportunity to be heard; the detriment to all of the natural person defendants in the proceedings of prolonging the existing delays and further increasing the already substantial costs that must have been incurred in these long-running proceedings; and the detriment to justice that affects the corrosion resulting from delay, to which Allsop ACJ referred in Hans Pet Constructions Pty Ltd v Cassar above.
I have had regard to the fact that Ms Qiu's evidence explains, in a limited way, that the claims were not identified until many years after the events and three years after the proceedings, but does not, in my view, explain why they could not have been identified from the matters already known to the Plaintiffs, as to their dealings with the Eighth to Tenth Defendants, and the matters already pleaded as to the contractual arrangements between the Plaintiffs and the Eighth to Tenth Defendants and the issues as to the viability of the project, at an earlier stage.
In this case, it seems to me that there is significant prejudice from the amendments to the Eighth and Tenth Defendants, so far as they are exposed to the diminution of recollection over time. There is prejudice to the other natural persons in the proceedings, so far as the stress and cost of long and complex proceedings will be prolonged and increased. Balancing these factors, and recognising the importance of the amendment to the Plaintiffs, it still seems to me that it will not be consistent with the just, quick and cheap resolution of the matters in dispute, or more fundamentally with the just resolution of these proceedings, to impose prejudice of that extent on the Eighth and Tenth Defendants, and the Defendants more generally, at this late stage in the preparation of the proceedings for hearing.
Next, the Eighth and Tenth Defendants submit that they will be deprived of the opportunity of pursuing cross-claims, and identify a potential cross-claim against a new party, Mr Qian, who translated communications with the Plaintiffs, that would or may be pursued if the amendment is permitted. They also identified, and possibly in terrorem, a potential cross-claim against the Plaintiffs' daughter, who is also said to have undertaken such translations. Mr Archibald responds that the limitation period for contribution between tortfeasors would be extended by s 26 of the Limitation Act 1969 (NSW), so that the Eighth and Tenth Defendants may in fact join such new parties by cross-claim. I will assume, without deciding, the correctness of that submission. It seems to me that that highlights a further prejudice, which is significant, arising from the proposed amendment, namely that if cross-claims are now to be brought against new parties, they will now be joined into proceedings eight years after the relevant events and three years after the proceedings had commenced, in circumstances that they may well have had no previous notice of those proceedings. That prejudice is real, although it is not necessary to find that the amendment should also not be permitted on that basis, given the views that I have already expressed as to the absence of service on the Ninth Defendant and as to the prejudice to the existing Defendants.
Next, the Eighth and Tenth Defendants advance an allegation that the amendment is not sought to be brought in good faith, but to advance a case that was always available to the Plaintiffs, after a mediation had not resolved the proceedings as against them. I do not accept this submission. Even if the Plaintiffs had now determined to bring new claims, as a result of developments at or since a mediation, there is no reason to think that those claims are not brought for a proper purpose, namely to vindicate their rights. The difficulty with the claims, as I have noted, is not that they involve bad faith, but that the delay in bringing them is so substantial, and the prejudice to the other parties from bringing them is so substantial, that allowing them now is not consistent with the just resolution of the proceedings.
The Eighth and Tenth Defendants also refer to a possibility, or likelihood, that the trial of the proceedings in 2017 would be lost by way of the amendments. The Plaintiffs do not accept that submission, pointing to the fact that their evidence is already complete, but that approach seems to me to have little regard to the effect of re-pleading of the matter, so far as the Eighth and Tenth Defendants are concerned, or to the likely need for more extended lay evidence of the Eighth and Tenth Defendants by reason of the amendments, still less the effect of joinder of new parties to proceedings that have been on foot for three years. In any event, the delays occasioned by this amendment application may be such that the opportunity of a hearing in 2017 has already been lost and, had the hearing been delayed to 2018, by reason of the amendments, I would not have refused the amendments on that ground, had they otherwise been appropriate. I have explained why I do not consider that they should be allowed above.
The Eighth and Tenth Defendants also raise objections to the report of Ms Wright, on which the Plaintiffs seek leave to rely. I would have been inclined to grant leave to rely on it, and leave questions of admissibility of that report to be determined at the hearing, had I otherwise considered the amendments should be allowed. My tentative view is that that leave to rely on that report should not be granted to the Plaintiffs, where the amendments have not been permitted, because that report is not relevant to any matter in the proceedings. I will hear the parties, if they seek to be heard further as to that matter.
The Eighth and Tenth Defendants also submit that the facts on which the claim was based were known to the Plaintiffs from the outset of the proceedings. I have addressed many aspects of that submission above, so far as it turns on what would have been known to the Plaintiffs as to the content of conversations, irrespective of whether it was known to their legal representatives, and what was already pleaded as to the existence of the contract between the Plaintiffs and the Eighth to Tenth Defendants and the issues as to the viability of the project. Ultimately, it is not necessary or appropriate that I reach any final conclusion as to that matter, where it is not necessary to do so to determine the application for the reasons that I have noted above. The Eighth and Tenth Defendants also challenge the Plaintiffs' explanation of the amendments, as intended to address the risk that the Court could allow an account of profits in respect of the claim for breach of fiduciary duty. It seems to be plain enough why the Plaintiffs would prefer compensation to an account of profits, given their claimed loss, and ordinarily it is a matter for the plaintiff to elect the form of relief that it seeks. It seems to me that the fact that an amendment was sought so as to maximise the prospect of relief would ordinarily support an amendment, rather than tend against it, if that amendment did not have the difficulties to which I have referred above.
For all these reasons, I am comfortably satisfied, having regard to ss 56-58 and 64 of the Civil Procedure Act and the matters to which I have referred above, that I should make the following orders:
The Plaintiffs' application for leave to file a Second Further Amended Statement of Claim is dismissed.
The Plaintiffs pay the costs of the Eighth and Tenth Defendants of and incidental to the motion filed 14 June 2017, the amended motion filed 19 July 2017 and all directions hearings referable to the motions.
The exhibits be returned.

X P Hua & Anor v M S Tuckerman & Ors

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