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[2026] NSWCA 194
respondent. The application for leave to appeal was dismissed with costs.
The Court of Appeal did not decide whether the alleged AliExpress scheme existed. It decided whether there was a sufficient basis to let the applicant appeal procedural and pleading decisions. The proposed claim against Alipay Australia relied on allegations that were not properly particularised, and its role as a custodian of payments did not, without more pleaded facts, connect it to alleged misrepresentations by others. The 61-page draft also had serious form and clarity problems. Given earlier unsuccessful attempts to produce a proper claim, the Court found no reasonably clear injustice in refusing another opportunity to replead or in dismissing the case against Alipay Australia. Leave to appeal was refused with costs.
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5 cited instruments linked from this judgment.
2,467 words · generated 08/10/2026
The judgment concerns an application for leave to appeal, not a trial of the consumer allegations. Gary Young, a self-represented plaintiff, challenged three procedural decisions made by Parker J in the Supreme Court of New South Wales: refusal of leave to file a proposed amended statement of claim called SC4, refusal of further leave to replead and dismissal of the proceeding against Alipay (Australia) Pty Limited, and refusal to refer him to the pro bono assistance scheme ([1], [20], [26]).
The dispute arose from three attempted purchases through AliExpress. For the first, Young paid $1,192.18 on 17 November 2024 and received a refund two days later. For the second, he paid $2,627.99 on 22 November 2024 for a remote-controlled diesel lawnmower. That order was cancelled, apparently because it was “closed for a timeout”, and refunded on 3 December. For the third, an order placed by his partner, Young paid $2,628.99 on 3 December. He said the merchant later sought extra payments for the engine and shipping. AliExpress advised on 27 December that the order had been cancelled because it had not been shipped in time, and the payment was refunded that day ([4]-[7]).
The Court treated the receipts and transaction history as matters that could be assumed for the application. They identified Alipay Australia as the “Seller”, although Young alleged that it had not been identified on the AliExpress product page ([7]). The Court recorded that he was out of his money for a total of 37 days across the transactions, while his own calculation was 40 days using inclusive counting. The difference was immaterial to the appeal ([7]).
Young’s SC4 pleading alleged that the respondents were involved in a “Ponzi scheme” or scam in which consumers were induced to pay for goods that would not be supplied, allowing the respondents to use the money before refunding it ([8]-[10]). It also alleged misleading or deceptive conduct, unconscionable conduct, fraud, conspiracy, and a contravention of financial-services licensing requirements ([9], [12]-[14]). The pleading sought $150,000 in compensatory damages, $200,000 in aggravated damages, and $500,000 or more in exemplary damages ([16]).
The Court described SC4 as about 61 pages long, with 418 numbered paragraphs, repetitive, diffuse and difficult to follow. It considered it an amalgam of allegations, submissions and observations, rather than a properly confined pleading of material facts ([8]). In the appeal, the Court was not deciding whether the alleged scheme or any underlying statutory breach had occurred. It was deciding whether the primary judge’s procedural orders disclosed a sufficient basis for appellate intervention.
The starting point was the leave threshold. Relying on Weston Energy and the passage from Cheng quoted there, the Court said leave generally requires an issue of principle, a question of public importance, or a reasonably clear injustice going beyond a matter that is merely arguable ([27]). It accepted that an alleged conspiracy to defraud consumers could potentially be a matter of public importance if established. But that was not the issue the proposed appeal would decide: the appeal concerned pleading and procedural decisions ([28]).
The orders were discretionary. The Court therefore applied the restraint associated with House v The King, as described in PPK Willoughby, and found that Young had not shown arguable error under the applicable standard ([29]). It also noted that the decisions about filing and repleading were interlocutory procedural decisions, which appellate courts approach with particular caution ([42]).
The Court considered the proposed claim against Alipay Australia. On the material before it, Alipay’s role appeared to be holding purchase money as custodian until an order was fulfilled or cancelled, then refunding the money where appropriate ([11], [33]). The Court said that this role did not, without more, make Alipay a participant in any representation made on the AliExpress platform. The suggestion that Alipay became actively involved through a failure to supervise its business did not establish the connection required for a viable claim that it was knowingly concerned in making misrepresentations ([33]).
Young also relied on ASIC Act s 12GH(2), an attribution provision. The Court explained that, for this provision to assist, material facts had to show that the conduct on the AliExpress platform was engaged in on behalf of Alipay Australia and with its consent or agreement, whether express or implied ([34]-[35]). The fact that Alipay received money as custodian, and might have been entitled to retain interest, fell short of supporting those elements. The Court considered that a properly particularised allegation of Alipay’s knowledge would be needed to support the suggested inference; SC4 did not contain one ([35]).
The Court reached a similar view about the unconscionability claim. It said the pleaded case was not simply that Alipay lacked a licence to handle money. Rather, it depended on alleged participation in the fraudulent scheme. The Court found no proper pleading of that participation or knowledge, and concluded that s 12GH(2) did not fill the gap ([36]). It therefore found no error in the primary judge’s conclusion that SC4 did not disclose a viable cause of action against Alipay Australia, including under the statutory theories raised ([37]).
There was a separate reason to refuse leave to file SC4. The Court emphasised the seriousness of the pleading defects and the lack of particulars supporting accusations of deliberate fraud. For example, SC4 alleged that all defendants knew information supplied to Young was false and intended to induce him to contract, but the basis for alleging that Alipay knew or intended this was unclear ([14]-[15]). The Court held that those pleading defects independently justified refusal of leave, even apart from the question of whether a cause of action was viable ([38]).
The history also mattered to the request for another opportunity to replead. Young had made several attempts to formulate a viable claim in proper form, and a previous judge had identified relevant pleading rules. The Court saw no reason to think a proper pleading would be forthcoming, while noting the costs Alipay was incurring in seeking a properly framed case and defending the proceeding ([19], [39]). Once further leave was refused, summary dismissal against Alipay followed ([40]).
Finally, the Court found no error in refusing pro bono referral. It observed that appeals about such referrals would rarely raise a principle or general question of importance, and that this case did not warrant leave ([46]).
The judgment presents the leave-to-appeal principles as established rather than creating a new general test. It quotes the formulation that leave generally requires an issue of principle, a public-importance question, or reasonably clear injustice extending beyond mere arguability ([27]). It also applies the established restraint on appeals from discretionary decisions associated with House v The King ([29]) and the particular caution appropriate to review of interlocutory practice and procedure decisions ([42]).
The judgment’s treatment of ASIC Act s 12GH(2) is tied to the pleaded facts and the statutory language set out in the reasons. The Court stated that the provision applies to conduct engaged in on behalf of a body corporate by a person at the direction of, or with the consent or agreement of, a director, employee or agent ([34]). It required material facts capable of connecting the alleged conduct to Alipay Australia in the relevant way. Mere receipt and custody of money did not, on the pleading before it, supply that connection ([35]).
The decision does not establish that a payment intermediary can never be responsible for conduct on a sales platform, nor does it determine the meaning or reach of every consumer-protection or financial-services provision mentioned in the pleadings. The Court expressly focused on what SC4 alleged and what it failed to particularise. Its conclusion was that the proposed case against this respondent was not viable as pleaded, and that the defects warranted refusing leave to file that pleading ([33]-[38]).
The judgment also does not determine whether any licensing contravention occurred. It records Young’s argument that Alipay was providing payment-processing services without an Australian financial services licence and his acknowledgement that such a contravention would not itself provide him with a direct private right of action ([12]-[13]). The Court addressed the licensing contention as part of the proposed unconscionability case and found that the asserted connection to the alleged scheme was inadequately pleaded ([36]-[37]).
After this decision, the immediate procedural position was that leave to appeal was refused with costs ([47]). The judgment itself does not report a change to the underlying statutory rules. Nor does it purport to determine the claims against the other respondents, who had not appeared and might not have been validly served ([2]).
At [27], the Court adopts the proposition that leave generally requires “an issue of principle, a question of public importance or a reasonably clear injustice” beyond mere arguability. In plain English, an applicant must show more than that another view of the procedural decision is arguable. The Court treated this as a demanding threshold, particularly because the appeal was about case management and pleading.
At [28], the Court distinguishes the significance of the underlying allegations from the questions in the appeal. It accepts that a properly established conspiracy to defraud consumers could be important, but says that was not what the proposed appeal would decide. The appeal was about whether the pleading and procedural rulings were wrong to the requisite degree.
At [35], the Court says that holding money as custodian falls “well short” of showing that alleged representations by others were made on Alipay’s behalf and with Alipay’s implied consent or agreement. In plain terms, the payment role described in the evidence did not, without additional pleaded facts, establish that Alipay authorised or adopted the alleged platform conduct.
At [38], the Court states that SC4’s “very serious deficiencies” independently justified refusing permission to file it. This matters because it means the refusal did not depend solely on the Court’s assessment of whether the claim against Alipay could succeed. The form and content of the proposed pleading provided a separate basis for the decision.
At [39]-[40], the Court links the history of repeated attempts to plead a viable case with the refusal of another opportunity, then explains that dismissal against Alipay followed from the refusal to replead. The passage describes a case-management conclusion grounded in the litigation history and the respondent’s interest in receiving a properly framed pleading.
At [47], the operative order is concise: the application for leave to appeal was dismissed with costs. That is the result of the appeal application, not a trial finding that the alleged wider scheme did or did not exist.
The decision is most directly relevant to applications for leave to appeal from discretionary interlocutory rulings about pleadings, repleading and case management. The Court applied the leave threshold to an appeal where the challenged orders concerned whether a proposed pleading could be filed and whether a respondent should remain in the proceeding ([27]-[29], [38]-[42]).
It is also relevant where a party alleges that a company participated in another entity’s misleading conduct through an indirect operational or financial role. In this case, the proposed connection was that Alipay received and held payments relating to transactions on the AliExpress platform. The Court found that custody of the funds alone did not provide pleaded material facts showing that the platform conduct was on Alipay’s behalf or with its consent or agreement ([33]-[35]). The decision therefore highlights the difference between describing a commercial relationship and pleading the facts said to establish attribution, knowledge or participation.
The judgment also bears on pleadings that make serious allegations of fraud, conspiracy or deliberate wrongdoing. The Court focused on whether the proposed pleading identified a properly particularised basis for alleging knowledge and intention, rather than relying on broad assertions about all defendants ([14]-[15], [35]-[37]). Its reasoning applies to the procedural sufficiency of those allegations, not to whether a particular allegation is ultimately true.
The decision is less directly informative about the substantive boundaries of the Australian Consumer Law, ASIC Act unconscionability provisions, or financial-services licensing law. Those provisions were raised, but the appeal was resolved by examining the pleading and leave threshold. The Court did not make a general determination of statutory liability on a full evidentiary record ([30]-[37]).
The supplied judgment is dated 15 September 2026 and does not cite or discuss any later judicial treatment of Young v Aliexpress. No later application, approval, distinction or criticism can be established from the material provided.
The judgment itself relies on earlier authorities. It quotes the leave-to-appeal formulation from Cheng through Weston Energy ([27]). It invokes House v The King and PPK Willoughby for restraint in reviewing discretionary decisions ([29]), and cites Adam P Brown Male Fashions for caution in reviewing interlocutory decisions on practice and procedure ([42]). These citations show the Court placing its reasoning within those existing authorities; they do not establish how later courts have treated this judgment.
For research purposes, the decision should therefore be described here as an appellate judgment applying cited principles to a particular pleading and procedural history. Any account of later treatment would require sources beyond the text supplied.
The judgment leaves the truth of the alleged consumer scheme unresolved. It records the allegations, transaction history and refunds, but the appeal did not determine whether any respondent operated a scheme, acted dishonestly, or made misleading representations ([10], [28]).
It also does not decide whether the other respondents were validly served, or determine the claims against them. The Court expressly noted that service on some or all of those parties might be in question and that this was not before it ([2]). Its dismissal reasoning and operative conclusion concern the appeal from orders relating to Alipay Australia.
The judgment does not decide whether Alipay Australia required an Australian financial services licence for its described role, whether a licensing contravention occurred, or what remedies would follow from any such contravention. It records the licensing argument and addresses how it was connected to the proposed unconscionability case, but its conclusion rests on the absence of a viable, properly pleaded connection to the alleged scheme ([12]-[13], [36]-[37]).
Finally, the Court’s comments on the apparent value of the claims and the appropriate court are assessments made in the context of the leave application. It said the realistic damages range against Alipay appeared far below $100,000 and that the damages claim did not belong in the Supreme Court ([43]-[45]). The judgment did not conduct a trial assessment of damages or make a final determination of every possible loss. General legal information only, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Young v Aliexpress International (Australia) Pty Limited [2026] NSWCA 194
Hearing dates: 7 September 2026
Date of orders: 15 September 2026
Decision date: 15 September 2026
Before: Leeming JA; McHugh JA
Decision: Application for leave to appeal dismissed with costs.
Catchwords: APPEALS — Leave to appeal — Decision refusing leave to file amended statement of claim, summarily dismissing claim against second respondent and refusing referral to pro bono scheme — Significant deficiencies in proposed pleading — No issue of principle — No issue of public importance — No reasonably clear injustice — Leave to appeal refused
Legislation Cited: Australian Consumer Law, s 21
Australian Securities and Investments Commission Act 2001 (Cth), Pt 2, Div 2, ss 12CB, 12GH
Corporations Act 2001 (Cth), Ch 7, s 911A
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 7.37
Cases Cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Cheng v Motor Yacht Sales Australia Pty Ltd t/a Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
House v The King (1936) 55 CLR 499; [1936] HCA 40
PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48
Weston Energy Pty Ltd v National Ceramic Industries Australia Pty Ltd [2026] NSWCA 7
Young v Aliexpress International (Australia) Pty Ltd [2026] NSWSC 483
Category: Principal judgment
Parties: Gary Young (Applicant)
Aliexpress International (Australia) Pty Limited (First Respondent)
Alipay (Australia) Pty Limited (Second Respondent)
Alibaba.com Singapore Ecommerce Private Limited (Third Respondent)
Alibaba Group Holdings Limited (Fourth Respondent)
Aliexpress Company Hangzhou (Fifth Respondent)
Ant Group Services (Sixth Respondent)
Shandong Dongcheng Machinery Manufacturing Co Limited (Seventh Respondent)
Alibaba Australia Company Pty Limited (Eighth Respondent)
Representation: Counsel:
G Young (self-represented) (Applicant)
E Hyde SC (Second Respondent)
Solicitors:
Mills Oakley (Second Respondent)
File Number(s): 2026/00213326
Publication restriction: N/A
The applicant, who is the plaintiff below, is an Australian consumer. The eight respondents, who are the defendants below, appear to be entities either associated with the Alibaba Group, which operates the e-commerce platform known as ‘AliExpress’, or (in the case of the seventh respondent) which offers goods for sale through that platform. Only the second respondent, Alipay (Australia) Pty Limited, has appeared in the proceedings to date. (There may be a question whether some or all of the other respondents have been validly served. That is not a question before this Court.)
The focus of the applicant’s argument in this Court is three transactions involving attempted purchases of goods through the AliExpress platform. The following matters appear to be uncontroversial; in any event for present purposes they may be assumed.
The first transaction (which does not appear to be pleaded in the proposed amended statement of claim) was an order the applicant placed on 17 November 2024. The applicant paid for the order that day through PayPal. A PayPal receipt records that the applicant paid $1,192.18 to the second respondent on 17 November 2024. Following discovery of a problem with the item the applicant had ordered, the order was cancelled. A PayPal receipt records that the second respondent issued a refund to the applicant in the sum of $1,192.18 on 19 November 2024. The applicant was thus out of that sum of money for a period of two days.
The second transaction was an order the applicant placed on 22 November 2024 for a self-propelled remote-controlled diesel lawnmower. The applicant paid for the order that day through PayPal. A PayPal receipt records that the applicant paid $2,627.99 to the second respondent on 22 November 2024. That order was cancelled, apparently by one or more of the respondents, on the basis that the order had been “closed for a timeout”. A PayPal receipt records that the second respondent issued a refund to the applicant in the sum of $2,627.99 on 3 December 2024. The applicant was thus out of that sum of money for a period of 11 days.
The third transaction was an order placed by the applicant’s partner for the same item on 3 December 2024, for which the applicant paid that day through PayPal. A PayPal receipt records that the applicant paid $2,628.99 to the second respondent on 3 December 2024. According to the applicant, he began to receive emails from the merchant asking for further payments: (a) to pay for a diesel engine, despite the lawnmower’s having been described as having a diesel engine on the website and in the order confirmation; and (b) for shipping, despite the purchase price having been quoted on the website as inclusive of freight and shipping costs. That led to an impasse. On 27 December 2024, the applicant received an AliExpress email advising him that the order had been cancelled because it had not been “shipped in the required time”. A PayPal receipt records that the second respondent issued a refund to the applicant in the sum of $2,628.99 on 27 December 2024. The applicant was thus out of that sum of money for a period of 24 days.
The three transactions led the applicant to sue the respondents in the Supreme Court of New South Wales. This has generated, in the most recent iteration of his draft amended statement of claim (referred to as SC4), a proposed pleading of some 61 pages (with numbered paragraphs running to 418, although not all numbers appear to have been used). The proposed pleading is an amalgam of allegation, submission, and observation. It is repetitive, prolix, diffuse and difficult to follow. It does not comply with the rules of pleading, which exist to ensure procedural fairness to the parties. It imposes an unacceptable burden on the respondents to try to identify the material facts relied on.
At the heart of the case the applicant seeks to advance are allegations that the respondents:
engaged in “deliberate” misleading and deceptive and unconscionable conduct on the AliExpress platform (identified in SC4 as the first cause of action, and pleaded from pars 9 to 373); and
committed fraud and engaged in a conspiracy (identified in SC4 as the second cause of action and pleaded from pars 378 to 418).
The applicant’s basic case in SC4 is that the respondents joined in a dishonest scheme (at times referred to as a Ponzi scheme or scam) to mislead consumers into paying for orders which the respondents did not intend to fulfill, so as to have the use of consumers’ money before refunding it:
“14.. The Ponzi Scam works in practice according to the pre arranged plan whereby advertising ads are manufactured and placed online, by www.Aliexpress.com on their website of the same name where, consumers are induced to buy through passing off and unconscionable false, misleading, deceptive bait and switch and other faudulent advertising tactics … [Reference is then made to further particulars of misrepresentation at par 173]
15.. ‘Actual Conflicts’ between Consumers and merchants and defendants are fully and deliberately engineered to occur by defendants, especially by www.Aliexpress and alipayOZ between seller/merchants and plaintiff and/or consumers as ‘..buyers..’ and defendants
16.. These conflicts allow AlipayOZ to use that conflict[s] as an excuse and they immediately seized monies paid by plaintiff on 22 November and 3 December 2024 and with other consumers and held the moeny under the guise of ‘…until those “conflicts” can be sorted out..’
17.. These plaintiff and consumers ‘seized’ funds were held and or transmitted by alipayOZ on behalf of all defendants through a pre existing financial web for various periods according to the ‘conflict’ algorythm employed by all defendants but usually between 10 and 60 days.
18 After the algorythm witholding period Alipay OZ then stepped forward and put on their ‘good guy’ hat and the ‘..conflict..’ was then miraculously ‘..resolved..’ and the plaintiff and consumer had their money returned”
(Underlining, bold and spelling as per original.)
It does not appear to be controversial that the second respondent’s role in each of the three transactions was that of a custodian, in effect holding the purchase price for the parties until each order was either fulfilled or cancelled. It appears that the second respondent, or perhaps some other entity associated with the Alibaba Group, was entitled under the relevant contractual arrangements to retain any interest on sums held by it. The applicant’s main case against the second respondent appears to be that it knowingly received and refunded consumers’ money as part of the ‘scam’ described above.
The applicant also wishes to allege that the second respondent’s conduct in receiving, holding and refunding his money constituted the second respondent an unlawful “unlicensed money transfer agent”. In argument before this Court, the applicant sought to make much of the description in the PayPal receipts of the second respondent as a “seller”, which description (so the argument appeared to run) the second respondent had chosen as a “disguise” in order to evade the operation of the financial services laws. Thus the applicant wishes to allege that the second respondent carried on the “business of payment processing provider services”, apparently without an Australian financial services licence (AFSL), contrary to s 911A of the Corporations Act 2001 (Cth): SC4 at par 58F.
The applicant appeared to acknowledge in argument before this Court that any such contravention would not, of itself, give him a direct private right of action against the second respondent: “I appreciate I can’t get damages for them calling themselves … in this disguised manner”: Tcpt 7.9.26 15.32. But, as he submitted immediately after that: “However, it does work out to be this unconscionable conduct. It works in with the Ponzi scheme - and then you've got all of these things adding together”: Tcpt 7.9.26 15.31. Thus, the case he wishes to advance appears to be that the alleged licensing contravention was merely one element of the second respondent’s alleged unconscionable conduct contrary to s 12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and s 21 of the Australian Consumer Law: SC4 at par 58C. That case has the difficulties identified below.
The applicant’s central allegations of deliberate misleading and deceptive conduct, fraud, and conspiracy are serious. The applicant goes as far as alleging, apparently against the second respondent, without particulars, a “series of Deliberate Continuing criminal offenses by AlipayOZ as an Australian Licenced Financial services provider”: SC4 at par 355; see also at pars 50-57. The proposed amended pleading does not meet the high standard of particularisation required for such allegations. For example, it is alleged at SC4 par 407:
“Knowledge of Falsity At all relevant times all defendants knew that the information supplied to plaintiff which plaintiff relied on to make the contract was false misleading frauduent and deceptive and was deliberately intended to be supplied to plaintiff for the wrongful purpose of inducing plaintiff to make the contract and then immediately seizing plaintiffs money and witholding that money for use in the named Ponzi Scheme.”
(Bold, underlining and spelling as per original.)
On what basis it is alleged that the second respondent knew and intended those things is wholly unclear.
As for damages, the applicant wishes to advance the following claims, as set out in SC4:
judgment “against all defendants jointly and severally in the amount of $150,000”, presumably by way of compensatory damages: par 373;
aggravated damages “in an amount of $200,000”: par 373; and
exemplary damages “in an amount of $500,000 or more as determined by the court”: par 418.
As to (1) above, it is unclear how the figure with respect to compensatory damages was calculated. The applicant appeared to acknowledge in the course of argument that the loss of the use of his money for 37 days (for example, if the loss was understood as the loss of the opportunity to earn interest on those sums on those days) would not result in substantial damages. In his proposed pleading the applicant also claimed for consequential losses alleged to have been suffered, including having new medications and treatment on account of stress (and, apparently, a heart attack): SC4 par 368(a)-(c). In argument he referred to damages in the range of $5,000 to $10,000 on account of this head of damages; he did not give a basis for any higher figure. He also claimed damages resulting from his delay in purchasing an alternative mower: par 368(d)-(f). But the underlying facts are not pleaded properly, and it is extremely difficult to envisage how these conclusory particulars could involve damages approaching anywhere in the order of $150,000.
As to (2) and (3) above, such damages would only be available in tort (i.e., here, fraud). There does not appear to be any particular rationale for the quantum claimed.
In thorough reasons for judgment of some 85 paragraphs, the primary judge, Parker J, set out the procedural history of the matter. This included an application before Meek J on 22 August 2025, following which his Honour concluded that the then current statement of claim was defective. Meek J included a notation within his orders identifying for the applicant’s benefit specific rules in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) relevant to pleadings and particulars. The applicant then produced further versions of his pleading, one of which was mistakenly permitted to be filed despite a lack of leave to do so. When the matter came before Parker J, the argument proceeded on the basis that it was accepted that that pleading should be struck out. There was thus no statement of claim on file.
There were two substantive applications before Parker J: the applicant’s application for leave to file SC4, and the second respondent’s application for summary dismissal of the proceeding as against it. In the alternative, if leave to file SC4 was not granted, the applicant sought a referral to the pro bono scheme for assistance in the drafting of a suitable statement of claim: see UCPR rr 7.36(1) and 7.37(c).
“[The applicant] did not respond in any detail to the submissions by counsel on the rules of pleading. Nor did he attempt any point-by-point rebuttal of counsel’s analysis of the pleading deficiencies in SC4. That is not surprising. Counsel’s points were unanswerable. As the passages in SC4 which I have quoted indicate, it is riddled with extraneous and embarrassing allegations, commentary and submissions and fails to comply with numerous other formal requirements of the Rules. It is hardly necessary to say that the responsibility for identifying and excising the offending parts of SC4 should not be pushed onto the lawyers for Alipay Australia. It is not their responsibility to repair Mr Young’s pleading for him. The same goes for the Court. Leave to file it must be refused.”
As to whether the applicant should be given a further opportunity to replead (at least as against the second respondent), Parker J said at PJ[75] that “any viable claim against Alipay Australia could only be a claim for damages in a minimal amount, which would not belong in this Court.” His Honour expanded on that conclusion at PJ[77], addressing deficiencies in the various heads of damage claimed.
His Honour also took into account the history of the matter, saying at PJ[78]:
“Case management considerations also militate against the grant of leave to replead. Mr Young has made multiple unsuccessful attempts to formulate a viable statement of claim in proper form. He has already had the benefit of having the relevant rules identified for him by Meek J. I can only assume that he lacks the self-discipline required to follow those rules, and to confine himself to legally tenable claims. I have no confidence that if I were to grant him further leave to replead, he could or would produce a properly pleaded statement of claim.”
“Nor in my opinion would it be proper to refer Mr Young to the pro bono assistance scheme.
(1) No viable cause of action has been pleaded, and there is no reason to think that any facts are likely to be identified by way of further investigation which would allow such a claim to be made.
(2) The amount at stake is in any event apparently minimal and any claim which might be brought should not be brought in this Court.
(3) His claim to have successfully conducted his own litigation in person in the past suggests that he made a deliberate decision to pursue these proceedings as a self-represented litigant. If he was unable to do so in accordance with the Rules, he should have made an application for pro bono assistance at a much earlier point. I see no reason, why, at the last moment, when his strategy has failed, the Court should now make further public resources available to him so that the case can, for practical purposes, be started all over again for his benefit. Certainly there would be no justification for doing so unless he first paid for all of the costs which have been wasted to this point.”
The applicant seeks leave to challenge all three decisions referred to above.
The applicable principles are familiar. As the Chief Justice recently said in Weston Energy Pty Ltd v National Ceramic Industries Australia Pty Ltd [2026] NSWCA 7 at [93], quoting Cheng v Motor Yacht Sales Australia Pty Ltd t/a Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]:
“As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable…”
In the present case there is no issue of principle at stake on the proposed appeal. And, while it is undoubtedly true that, if established, the underlying question of conspiracy to defraud consumers which the applicant wishes to ventilate would potentially be a matter of public importance, that question would not be at issue in the proposed appeal itself. Instead, the proposed appeal would be essentially concerned with questions of pleading and the conduct of proceedings.
The question at the threshold is then whether the applicant can point to a reasonably clear injustice arising from the primary judge’s decision going beyond something that is merely arguable. As explained below, the applicant has not been able to do so. The orders from which leave to appeal is sought were discretionary, engaging “the strictures against over-ready appellate interference and the correlative need for ‘added restraint’ associated with House v T**he King (1936) 55 CLR 499; [1936] HCA 40”: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5]. The applicant has not shown any arguable error in accordance with the applicable standard of review.
“Deliberate Misleading Deceptive and Unconscionable conduct in the advertising and sale of consumer goods and in the simultaneous provision of licensed financial services aided by deliberate Misleading and deceptive passing off tactics all in violation of Australian laws and in particular Australian Consumer laws and Australian Financial Service Provider laws and for Damages”.
(Emphasis supplied.)
Plainly his Honour understood that ASIC Act claims were sought to be advanced, including claims involving the AFSL regime and claims for unconscionable conduct (see PJ[41], [43], [47] and [48]).
In any event, as will be seen, the omission of reference to the ASIC Act made no difference to the outcome. There were two distinct lines of reasoning which led to the orders his Honour made. The applicant has not shown a reasonably clear error in either line of reasoning.
The first line of reasoning was that the proposed amended pleading did not disclose a viable cause of action against the second respondent. The basic difficulty that the applicant faces is that his case is not that the second respondent operated the AliExpress platform, or that the second respondent actually participated in making any particular representation with knowledge of matters which rendered it misleading. Instead, all that the second respondent was actually doing was, as the applicant put it in argument, “holding, … transferring, retransferring, putting money in the bank, gaining interest on all of that”, and, of course, later refunding the money. As noted above, the second respondent appears to have been doing so as custodian for the parties until their AliExpress transactions were either fulfilled or cancelled. The applicant’s submission that the second defendant “became actively involved” “by a failure to supervise their own business” is a non sequitur. That is not a promising start in the search for a viable claim that the second respondent was knowingly concerned in the making of misrepresentations on the AliExpress platform.
The applicant complains that the primary judge did not refer to s 12GH(2)(b) of the ASIC Act, an attribution of conduct provision in Pt 2, Div 2 of that Act (which Division is concerned with unconscionable conduct in relation to financial services). The provision does not assist him. The section relevantly provides that “conduct engaged in on behalf of a body corporate: … by any … person at the direction or with the consent or agreement (whether express or implied) of a director, employee or agent of the body corporate … is taken, for the purposes of this Division, to have been engaged in also by the body corporate”.
In order for s 12GH(2) to advance the applicant’s case against the second respondent, it would be necessary to plead material facts showing that the conduct complained of on the AliExpress platform was conduct on behalf of the second respondent with the second respondent’s consent or agreement, express or implied. In argument, the applicant emphasised the word “implied” in s 12GH(2). But the mere fact that the second respondent received money as custodian for the parties (and may have been entitled to retain any interest) falls well short of a basis from which to allege or infer that whatever misrepresentations may have been made by others on the AliExpress platform were made on behalf of, and with the necessary implied consent or agreement of, the second respondent. It is difficult to see how such an inference could be drawn, absent at least an allegation — properly pleaded and particularised — that the second respondent knew about the alleged misleading or fraudulent conduct on the AliExpress platform. There is no such properly particularised allegation in SC4: see below.
There is a similar difficulty in the submission that the second respondent engaged in unconscionable conduct. The case the applicant seeks to advance is not founded on the mere absence of a licence to handle consumers’ money. It is instead based on the second respondent’s alleged participation in the fraudulent scheme described above. For the reasons given earlier, there is no proper pleading of the second respondent’s participation in, or knowledge of, that alleged scheme supported by sufficient particulars, and s 12GH(2) does not advance the matter. Nor does there appear to be any proper basis to plead such matters.
The procedural history to which the primary judge referred equally justified his refusal of leave to replead as against the second respondent (the other respondents not having appeared, and perhaps not having been served). The applicant had had several attempts to put forward a pleading which (a) disclosed a viable cause of action and (b) was otherwise properly pleaded. He had not been able to do so, despite the rules as to pleading that Meek J had pointed out to him. There was no reason to think the applicant would be in a position to put forward a proper pleading in the future. In the meantime, at least the second respondent was incurring costs in attempting to obtain the procedural justice to which it was entitled, namely, a pleading in proper form from the applicant, and otherwise in defending the proceedings. Such a situation could not continue indefinitely. There was no error in the refusal of leave to replead as against the second respondent, still less a reasonably clear injustice.
At that point, as the primary judge rightly pointed out, the refusal of leave to replead led to summary dismissal of the proceedings as against the second respondent.
The failure to identify a reasonably clear injustice going beyond what is merely arguable is a powerful reason to refuse leave to appeal, and it is sufficient in the present case to lead to that result. Other relevant considerations only reinforce that conclusion.
First, the decision refusing leave to file the proposed amended pleading was a paradigm case of an interlocutory judgment on a matter of practice and procedure. So too was the decision to refuse leave to replead against the second respondent. It is well settled that appellate courts should exercise particular caution before deciding to review such matters: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39 per Gibbs CJ, Aickin, Wilson and Brennan JJ. And once those decisions were taken, the consequence — dismissal — was inevitable.
Secondly, to the extent that the applicant complains that the practical effect of the decisions below was to bring the proceeding against the second respondent to an end, it should be remembered that even in respect of final judgments or orders, leave is required where the amount in issue on the appeal would be less than $100,000: s 101(2)(r) of the Supreme Court Act 1970 (NSW). In such cases, as the Chief Justice said in Weston Energy at [93]: “The monetary amount at stake is a key factor in determining whether to grant leave to appeal.”
The damages claimed in this case range from the immaterial (loss of the time value of the various monies paid, for a total of 37 days) to the implausible (substantial claims for aggravated and exemplary damages). In between are claims (in the nature of injury to health) of relatively low value and doubtful availability given the nature of the causes of action, and claims (in the nature of consequential losses for delay) which are not properly pleaded or particularised. The realistic range of any damages that might be ordered against the second respondent would appear to be very far below $100,000. That is a further factor against the grant of leave to appeal.
Thirdly, following from the previous point, in aggregate the applicant’s claims for damages against the second respondent would appear most unlikely to exceed the $100,000 ceiling for damages in the Local Court. It is unimaginable that any damages would exceed the District Court ceiling of $1.25 million. That is to say, to the extent that the proceeding advances a claim for damages, it does not belong in the Supreme Court of New South Wales to begin with. And for the reasons given by the primary judge at PJ[76], the declaratory relief sought at SC4 par 373 is either misconceived or of no utility.
**********
Young
Aliexpress International (Australia) Pty Limited
[1936] HCA 40
[2026] NSWSC 483
(1981) 148 CLR 170
(2022) 108 NSWLR 342
(1936) 55 CLR 499
The application for leave to appeal was dismissed with costs.
Two points should be made at the outset about the three transactions.
In the PayPal receipt for each order, the second respondent was identified as the “Seller”. That was so, notwithstanding that (the applicant alleges) there had been no mention of the second respondent on the AliExpress page advertising the item for sale.
The total period that the applicant was out of his money (in the varying sums referred to above) appears to have been 2 + 11 + 24 = 37 days. The applicant’s calculation was 40 days, and was presumably based on inclusive counting, but the difference is immaterial.
There was no error in the primary judge’s reasoning at PJ[68]-[70] that SC4 did not disclose a cause of action against the second respondent in contract, misleading or deceptive conduct, or fraud. And it follows from what has been said immediately above that although the primary judge did not expressly refer to the ASIC Act or AFSL aspects of the claim, particularly with respect to unconscionable conduct, that made no difference to the outcome: that part of the claim was not viable either.